Andhra HC (Pre-Telangana)
Yerra Veeraiah vs Counsel For The on 11 April, 2018
Author: M. Seetharama Murti
Bench: M. Seetharama Murti
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI
Appeal Suit No.1740 of 2000
11.04.2018
Yerra Veeraiah. Appellant
Kanukuri Shanthamma & three others . Respondents
Counsel for the Appellant: Sri V.L.N.G.K. Murthy,
senior counsel representing
Sri S. Subba Reddy.
Counsel for Respondents 1,3 & 4: Sri Kowturu Vinay Kumar, senior counsel
<Gist :
>Head Note:
? Cases referred:
1. A.I.R.1939 Madras 446
2. AIR 1967 SUPREME Court 341
3. (1940) 2 MLJ 30
4. (1992) 1 SCC 197
5. AIR 1967 SC 341
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTHI
APPEAL SUIT No.1740 of 2000
JUDGMENT:
This appeal suit, under Section 96 of the Code of Civil Procedure, 1908, by the unsuccessful plaintiff/appellant is directed against the decree and judgment, dated 11.04.2000, of the learned Senior Civil Judge, Sathupalli, passed in O.S.No.215 of 1989.
2. I have heard the submissions of Sri V.L.N.G.K.Murthy, learned Senior Counsel representing Sri S.Subba Reddy, learned counsel appearing for the appellant/plaintiff, and of Sri Kowturu Vinay Kumar, learned senior counsel appearing for the respondent Nos.1, 3 and 4. Be it noted that the second respondent though was served with notice did not enter appearance.
3. I have perused the material record.
4. In this appeal suit, the parties shall hereinafter be referred to as plaintiff and defendants as arraigned in the suit.
5. Be it noted that during the pendency of the suit, the third defendant, Gudipudi Janakamma, died and defendants 1 and 2 are declared as the legal representatives/legal heirs of the deceased 3rd defendant vide orders on memo, dated 04.02.1991. The deceased 3rd defendant is not shown in the array of parties in the appeal suit. The 5th defendant i.e., the 4th respondent herein is impleaded during the pendency of the suit as per orders, dated 13.06.1997, passed in I.A.No.260 of 1997. Thus, the respondents in the appeal suit are defendants 1, 2, 4 and 5.
6. Since this is a first appeal suit and as this Court is the last Court of fact, it is necessary to refer to the pleadings of the parties.
7. Plaint averments, in brief, are as follows:
The 3rd defendant is the wife of late Gudipudi Ramaiah, resident of Kothur Village; defendants 1 and 2 are their daughters; they had no male issues. The 4th defendant is the married daughter of the 1st defendant. Gudipudi Ramaiah died, on 26.12.1986, at Kothur Village. The plaintiff is the 2nd son-in-law of late Ramaiah as the second defendant was given in marriage to him. As Ramaiah had no male issues, the plaintiff, who is the 2nd son-in-law, was brought more than 30 years ago as an illatom son-in-law as is customary in kamma community. At the time of getting the plaintiff as illatom son-in-law from his native village Lingapalem of Sathupalli Taluq, Gudipudi Ramaiah had agreed to give half of his property to the plaintiff. Having accepted the same and after the marriage of the plaintiff with the second defendant, the plaintiff came down and settled at the house of Ramaiah and had assumed the management of the property and developed the same and served Ramaiah and his wife late Janakamma (deceased 3rd defendant). The plaintiff and the 2nd defendant, who is his wife, and her father Gudipudi Ramaiah lived together under one roof at Kothur Village, H/o Ammapalem Village. In the last days of Ramaiah, the plaintiff and his wife, the second defendant, served him; and, on his death, the plaintiff, who is his illatom son-in-law, performed the obsequies. The plaintiff and late Ramaiah jointly held and possessed the lands and house i.e., plaint schedule property with equal rights of ownership. Even during the course of Land Ceiling Proceedings, late Ramaiah gave a statement confirming the fact of the plaintiff having been brought as illatom son- in-law and the further fact of the plaintiff having half share in the lands and other properties of late Ramaiah. Thus, the plaintiff and Ramaiah lived together for a period of more than 30 years jointly with equal rights of ownership in the plaint schedule property. Even as on the date of the institution of the suit, i.e., 13.10.1988, the plaintiff is in possession and management of the plaint schedule property. The plaintiff is, therefore, entitled to a half share in the plaint schedule property. The first defendant and second defendant, who are daughters, and the third defendant, who is the wife of late Ramaiah, are entitled to the remaining half share in the plaint schedule property. Each of them is entitled to 1/6th share in the plaint schedule property. As the plaintiff was brought as an illatom son-in-law and he along with his wife, the second defendant, lived with Ramaiah and managed the property, the first defendant and her husband were sore of the position of the plaintiff and developed strained relationship with the family of the plaintiff. They started alluring late Ramaiah and the 3rd defendant, Janakamma, (since died) to extract some immovable and movable properties and in-fact they had clandestinely knocked away the gold weighing about 50 tulas and cash of about Rs.50,000/-, which were with Ramaiah and his wife-
the 3rd defendant-Janakamma. After the death of Ramaiah, the plaintiff expressed his willingness for partition of the plaint schedule property and to give their respective shares to defendants 1 and 3. Having taken the 3rd defendant-Janakamma to their house, the 1st defendant and her husband started evading the partition and failed to account for the gold and cash, which were taken from Ramaiah and Janakamma, the third defendant. While so, to the surprise of the plaintiff, the first defendant and fourth defendant, who is the married daughter of the first defendant, filed a suit O.S.No.154 of 1988 on the file of the Court of the learned District Munsif, Sathupalli for perpetual injunction against the plaintiff and his son Satyanarayana, claiming therein that Ramaiah executed a Registered Will Deed bearing no.9/86, dated 08.07.1986, and that as per the said Will Deed, the 3rd defendant had got the wet land to the extent of Ac.3.30 guntas out of Survey nos.195, 202 and 203 of Ammapalem Village and the mango garden to the extent of Ac.3.20 guntas out of Survey no.323 of the said village and that the 3rd defendant, who had acquired such right after the death of Ramaiah, had executed two registered settlement deeds bearing nos.2469/88 and 2470/88, dated 08.07.1988, in favour of defendants 1 and 4 and that the plaintiff was trying to interfere with their such alleged possession. The plaintiff had no knowledge as to the execution of such Will Deed by Ramaiah much less, on 08.07.1986, nor he had knowledge as to the bequests of properties under the said Will Deed. The plaintiff had an occasion to see such Will for the first time when it was filed into the Court in the above said suit. Ramaiah was aged more than 85 years and had lost his eye sight completely and was also deaf. His memory was also quite fading on account of ripened age. Therefore, in view of his physical condition, the execution of any Will Deed much less a Registered Will Deed by him is a myth. Defendants 1 and 4 basing on the so called registered settlement deeds filed the aforestated suit. The trial Court declined to grant temporary injunction in their favour. Even in the appeal in C.M.A.No.63 of 1988, they could not succeed in getting an injunction order. Under any circumstances, there could not have been any execution of such Will Deed by Gudipudi Ramaiah. The registered Will Deed does not appear to be the Will of late Gudipudi Ramaiah and the bequests do not appear to have been made in full senses. Even assuming that the execution of the so called Will Deed is true, since the plaintiff and late Gudipudi Ramaiah were the joint owners and possessors of the entire plaint schedule property and since there was no partition as such between Ramaiah and the plaintiff, Ramaiah could not have bequeathed the entire plaint schedule property to the consternation and peril of the joint interest of the plaintiff in the property. In that view of the matter, the Will Deed by late Gudipudi Ramaiah, even if it is legally valid, is not binding upon the plaintiff and it is liable to be ignored as a void document insofar as the half share of the plaintiff in the plaint schedule properties. The so called Will Deed at a glance reveals that it was the first defendant and her husband, who had fabricated the same in order to knock away 3/4th of the property and to deprive the plaintiff and his wife, the 2nd defendant, of the fruits of their hard labour and service of many years rendered to late Gudipudi Ramaiah and his wife, the 3rd defendant. The so called settlement deeds allegedly obtained by defendants 1 and 4 from the 3rd defendant pursuant to the alleged bequests in her favour in the Will allegedly executed by Gudipudi Ramaiah are a manipulation to knock away the major portion of the property through illegal and dubious means. Ramaiah died while being in joint possession and management of the plaint schedule property without division between him and the plaintiff. Hence, he had no right to bequeath any specific property in favour of the defendants 1, 2 or 3 or in favour of anybody else. The bequests under the alleged Will are neither valid in law nor under facts and the said Will Deed is unenforceable. Defendants 1, 2 and 3 have not acquired any rights or title under the colour of the said document. The settlement deeds executed by 3rd defendant in favour of defendants 1 and 4 have no legal sanctity. Hence, in the given circumstances and the conduct of the defendants 1, 3 and 4, the plaintiff is entitled to seek partition of the plaint schedule property and separate possession of his half share from out of the plaint schedule property after seeking a declaration that the so called Registered Will Deed, dated 08.07.1986, allegedly executed by Gudipudi Ramaiah is not legally valid and binding upon the plaintiff in so far as his half share in the plaint schedule property is concerned. If the Will deed is declared as invalid, void and unenforceable, there would be no necessity to seek further declaration with regard to the so called registered settlement deeds both dated 08.07.1988 allegedly executed by the 3rd defendant in favour of defendants 1 and 4 as the same are also illegal and void documents. Hence, the suit is filed for declaration that the Registered Will Deed, dated 08.07.1986, alleged to have been executed by late Gudipudi Ramaiah in favour of defendants 1, 2 and 3 is invalid, void and unenforceable and for passing a preliminary and final decrees for partition of the plaint schedule property into two equal shares and allotment of one such separated half share to the plaintiff.
8. The 2nd defendant, who is the wife of the plaintiff, remained ex parte. The 3rd defendant-Janakamma, who is the wife of Ramaiah died during the pendency of the suit. Her two daughters, that is, defendants 1 & 2, are recognized as her legal heirs. The 1st and 5th defendants filed separate written statements. The 4th defendant adopted the written statement of her mother, the 1st defendant.
9. The averments in the written statement of the 1st defendant are in the nature of denial of the material averments in the plaint. The specific defence in the said written statement may be stated, in brief, as follows:
Ramaiah died testate, on 26.12.1987. The testament was executed, on 08.07.1986, when he was hale and healthy, and out of his own volition and with a faculty of understanding. The allegation that the plaintiff was brought as illatom son-in-law some 30 years ago is not true and correct. The Land Reforms Appellate Tribunal at Khammam in its common order, dated 25.09.1976, in L.R.A.T.Nos.147 of 1976 and 148 of 1976 did not accept the plaintiff as illatom son-in-law of Gudipudi Ramaiah, who is the declarant in L.R.A.T.No.147 of 1976. The plaintiff herein was the respondent in L.R.A.T.No.148 of 1976. The order of the Land Reforms Appellate Tribunal has become final as no appeal has been preferred against its order. The plaintiff is bound by the said order. He is estopped from raising the plea that he is the illatom son-in-law of Ramaiah. The plaint averments are vague and uncertain. This defendant is not aware of the alleged consent of late Gudipudi Ramaiah agreeing to give half of his property to the plaintiff when he was brought as illatom son-in-law from his village Lingapalem. The plaintiff was never brought by Ramaiah as illatom son-in-law. Therefore, it is false to allege that the plaintiff came down and settled at the house of Ramaiah and assumed the management of the property and developed the same and served his parents-in-law. The allegations are made to make out a colourable case for illatom. The allegations that the plaintiff and Ramaiah and his wife lived under one roof and that the plaintiff and the 2nd defendant only served the parents-in-law of the plaintiff during their last days and that the plaintiff performed the obsequies of Ramaiah are all false. The plaintiff is a rank liar. Ramaiahs obsequies were performed by Gudipudi Seetaiah, the son of Muthaiah, who is the younger brother of Ramaiah. The entire village is aware of the said fact. The plaintiff and Ramaiah never lived together as members of joint family and they never held and possessed the plaint schedule property jointly with equal rights of ownership. It appears that in an anxiety to save the property from being surrendered to Government, late Ramaiah gave a statement in his ceiling case in C.C.No.324 of 1975 saying that the plaintiff was his illatom son- in-law. However, the Land Reforms Appellate Tribunal, as already stated, having not accepted the said statement in-fact made adverse comments against the alleged theory of illatom. The Tribunal made pungent remarks regarding manipulation and tampering of records by the plaintiff. The plaintiff is not entitled to a half share in the properties of late Ramaiah. Defendants 1 and 2 are the only legal heirs of Ramaiah. After the death of the 3rd defendant-Janakamma, their mother, the defendants 1 & 2 are co-heirs and co-legatees under the Registered Will, dated 08.07.1986, of Ramaiah. Under the said Will, Ramaiah bequeathed Ac.11.03 guntas in Survey No.986; Ac.2.04 guntas in Survey No.297; Ac.1.36 guntas in Survey No.91; and, Ac.2.05 guntas in Survey No.309 of Ammapalem Village. The said total extent of Ac.17.08 guntas was bequeathed in favour of this defendant. The 2nd defendant was bequeathed a total extent of Ac.8.09 guntas comprised in Survey Nos.241, 270, 271, 273, 207 and 911. The deceased 3rd defendant was bequeathed Ac.3.30 guntas comprised in Survey Nos.195 and 203 and an extent of Ac.3.20 guntas. The deceased 3rd defendant was also bequeathed the residential house situated in Kothuru, Hamlet of Ammapalem. This item corresponds to the Daba house detailed in B schedule appended to the plaint. The deceased 3rd defendant executed a Registered Gift Deed, dated 08.07.1988, in favour of the 4th defendant. By the said deed, 3rd defendant gifted to the 4th defendant Ac.0.20 guntas in Survey No.195 (part of item no.1 of A schedule), Ac.0.32 guntas in Survey No.202 (corresponds to item no.2 of plaint A schedule); Ac.0.22 guntas in S.No.203 (part of item no.3 of A schedule); in all, an extent of Ac.1.35 guntas of wet land under Rajanal Cheruvu. She also gifted Ac.1.35 guntas of dry land in S.No.323. The 3rd defendant executed another gift deed, dated 08.07.1988, in favour of this defendant and it was registered as document no.2470 of 1988. Under the gift deed, this defendant got Ac.0.20 guntas in Sy.No.195 (part of No.1 of A schedule), Ac.0.32 guntas in Sy.No.202 (part of item no.2 in A schedule); Ac.0.22 guntas in Sy.No.203 (part of item no.3 of A schedule); total extent of Ac.1.35 guntas. Thus, items 1 to 3 of plaint A schedule devolved upon 3rd defendant under registered Will deed, dated 08.07.1986, of Gudipudi Ramaiah. This defendant and the 4th defendant accepted the properties covered by the gift deed executed by the 3rd defendant. They are in possession and enjoyment of the same. The Will deed executed by Gudipudi Ramaiah was accepted and acted upon as the beneficiaries thereunder took possession of the respective properties bequeathed to them. The allegation in the plaint that the first defendant and her husband developed jealousy and enmity against the plaintiff and that the plaintiff was managing the properties of Ramaiah as alleged in the plaint are not true and correct. The said allegations in the plaint are baseless, false and invented. The allegations that this defendant and her husband allured Ramaiah and his wife so as to extract some property and that this defendant and her husband clandestinely knocked away 50 tulas of gold and 50,000/- cash, which were with late Gudipudi Ramaiah and his wife Janakamma are not only false but also in the nature of mud slinging. The said allegations are made for no fault of this defendant and her husband. The allegation that on the death of Ramaiah, the plaintiff expressed his willingness to give respective shares to defendants 1 and 3 and the other allegations in the plaint about evading such partition are all false. In view of the order of the Appellate Tribunal, Khammam, and as the plaintiff very well knows that he is not the illatom son-in-law of Ramaiah, he is not entitled to a share whatsoever in the plaint schedule property. The documents referred to in paragraph 5 of the plaint are all registered documents and registration is itself notice to the public in general; and, the denials made in the plaint are false. The allegations about the health condition of Ramaiah are designedly meant to defeat the Will though in fact Ramaiah was with a faculty of understanding and was of good health and was neither blind nor deaf. The Will is not a myth and it is a genuine document consciously executed by the testator without being subjected to any influence from any quarter whatsoever.
The plaintiff has an excellent commendable brain in manipulating matters. Hence, the necessity arose for this defendant and the 4th defendant to file the suit O.S.No.154 of 1988 on the file of District Munsif Court, Sathupalli, for perpetual injunction against the plaintiff. The three registered documents are valid, genuine and justiciable. The assumption that the plaintiff has joint rights in the plaint schedule property along with his father-in-law are false and baseless and are opposed to the spirit of the order passed by the LRAT, Khammam. The Will was executed in a sound state of mind voluntarily and of his own volition. The Will is valid in law and the beneficiaries thereunder are entitled to get their due under the Will. This defendants mother is competent to execute gift deeds in respect of the property derived by her under the Will, dated 08.07.1986. The said three documents cannot be ignored. The plaintiff was never in joint possession of the properties of Gudipudi Ramaiah. The plaintiff is in wrongful possession of B schedule property and items 4 to 14 of A schedule property. He wrongfully gained possession of the same on the death of Ramaiah. The plaintiff was there in the same village Ammapalem where the plaint schedule properties are situate. While this defendant and her daughter are at different places, viz., Mulagalapativarigudem and Basavarapupadu of Krishna District. From this angle of the matter, the registered Will executed by Ramaiah during his life time is valid and enforceable. The Registered Will does not give any scope to infer that it was fabricated by this defendant and her husband. The plaintiff and the 2nd defendant have intoxicated ambition to grab away a lions share of the property of Ramaiah sparing negligible extents to this defendant. With that ambition, the plaintiff is straining his every nerve to establish that he is the illatom son-in-law as opposed to the fact & spirit of the order of the learned Presiding Officer, LRAT, Khammam. The plaintiff is not entitled to any reliefs claimed in the plaint and hence, the suit may be dismissed.
10. The first defendant filed two additional written statements alleging, in brief, as follows:
This defendant and 4th defendant sold away items 1 & 4 of plaint schedule property to the 5th defendant through registered sale deeds, dated 08.06.1989 and 12.06.1989 for consideration. The 5th defendant has been in peaceful possession and enjoyment of the said items of property. This defendant has nothing to do with the said items of property. The suit is filed in collusion with the second defendant, who is the wife of the plaintiff. The plaintiff is enjoying the properties which exclusively belonged to late Ramaiah by getting inserted in the revenue records, his name for some items and the name of his son-in-law, Raghavaiah, for some items by tampering the revenue records. These are the properties in which the first defendant is entitled to a half share. The suit is filed in respect of the properties for which late Ramaiah made bequests in favour of the defendants including the second defendant through a Will. Surprisingly plaintiff excluded the property that was given to the second defendant under the said Will except properties in Survey Nos.207 and 911. The very fact that the plaintiff did not disclose the lands given to his wife Tulasamma, the second defendant under the Will speaks volumes about the conduct of the plaintiff. The common order passed by the Land Reforms Appellate Tribunal operates as res judicata. The plaintiff failed to show the lands in Survey No.202 admeasuring Ac.2.38 guntas, Survey No.203/E admeasuring Ac.1.15 guntas, Survey No.989 admeasuring 1.45 guntas, Survey No.240 admeasuring 0.30 guntas, Survey No.308 admeasuring Ac.4.08 guntas, Survey No.324 admeasuring Ac.4.00 guntas and Survey No.240/E admeasuring 0.20 guntas; for all the said properties he got his name inserted in the revenue records by correcting the name of Ramaiah. He got the name of his son-in-law Raghavaiah inserted in the revenue records for the lands admeasuring Ac.5.39 guntas in Survey No.224, Ac.5.27 guntas in Survey No.225/AA and Ac.6.20 guntas in Survey No.231/AA. In all these lands the first defendant is entitled to a half share. The plaintiff clandestinely and in a most indiscreet manner did not disclose all these properties only to make a wrongful gain and make the first defendant disentitled for allotment of her share in the said properties of Ramaiah.
11. The fifth defendant in his written statement stated that he purchased items Nos.1 and 4 of the plaint schedule property from defendant Nos.1 and 4 for a valuable consideration under registered sale deeds, dated 08.06.1989 and 12.06.1989, and that since then he is in possession and management of the said items out of the plaint schedule property and that he is paying land revenue to the Government and that his name is recorded in revenue records and that, therefore, the suit in respect of the said items is liable for dismissal.
12. Taking into consideration the above pleadings, the trial Court framed the following issues & Additional issues:
ISSUES:
1. Whether the Registered will deed bearing No.9/86, dt.8.7.86 (Registered by the Sub-Registrar, Sathupally) alleged to had been executed by Late Gudipudi Ramaiah in favour of the defendants 1, 2 and 3 is an invalid, void and un-enforceable document?
2. Whether the plaintiff is entitled for the partition, and separate possession of the suit schedule property as prayed for?
3. To what relief?
Additional Issues:
1. Whether the Order in L.R.A.T.No.147/76 and 148/76, dt.25-9-76 on the file of the L.R.A.T. at Khammam operates as res judicata?
2. Whether the first defendant is entitled for the half share in the lands mentioned in para No.4 of his Additional Written Statement? And
3. To what relief?
[Reproduced verbatim]
13. At trial, the plaintiff and his supporting witnesses were examined as PWs.1 to 11 and Exs.A.1 to A.24 were marked on his side. Defendant Nos.1 and 5 were examined as DWs.1 and 6. The defendants also examined DWs.2 to 5 and 7 and marked Exs.B.1 to B.13 on the side of the defendants.
14. On merits and by the judgment impugned in this appeal suit, the trial Court dismissed the suit of the plaintiff awarding costs to defendant Nos.1 and 5. Aggrieved thereof, the plaintiff preferred this appeal suit.
15. Learned Senior Counsel appearing for the plaintiff-appellant contended as follows:
The relationship between the parties i.e., the plaintiff and the defendants 1 to 4 is admitted. The 5th defendant is purchaser of some of the items of the plaint schedule property from defendant 1 & 4. Ramaiahs wife is Janakamma, the third defendant (since died). They had two daughters, who are defendants 1 and 2. They had no male issues. The 4th defendant is the married daughter of the first defendant. The second defendant is given in marriage to the plaintiff. In such circumstances, late Ramaiah, who had no male issues, agreed to give a half share to the plaintiff at the time of getting him as his illatom son-in- law from his native village Lingapalem to Kothur Village. Accordingly, after the marriage with the second defendant, the plaintiff came down and settled at the house of Ramaiah. And, from then onwards, Ramaiah, Janakamma, the plaintiff and his wife, the second defendant, lived under one roof i.e., in the house of Ramaiah at Kothur Village and the plaintiff managed and developed the properties. The properties were held together and jointly by Ramaiah and the plaintiff. The plaintiff is having an undivided half share in the plaint schedule property and the remaining half share in the plaint schedule property belongs to the defendant 1, 2 and 3. To the knowledge of the plaintiff, Ramaiah has not executed any Will during his lifetime. Even assuming that Ramaiah executed any such registered Will, the same is valid to the extent of the undivided half share of Ramaiah, as Ramaiah has no right to execute the Will in respect of the half share of the plaintiff, who is the illatom son- in-law, who is entitled to a half share as per the agreement at the time of getting him as an illatom son-in-law to the house of Ramaiah under which Ramaiah agreed to give a half share in his properties to the plaintiff. It is an admitted fact that there is a custom of illatom affiliation in kamma community. Therefore, the plaintiff is having a half share in the plaint schedule property. A custom known as illatom adoption or affiliation is prevalent in kamma caste and it consists the adoption or affiliation of son-in-law, in consideration of assistance in the management of the family property. For such illatom affiliation and adoption, no religious significance is attached; and, execution of any document and/or performance of ceremonies are not necessary. A long time back, the incidents of illatom adoption crystallized into fixed Rule of Law and such fixed Rule of Law is recognized by a catena of decisions. To claim a share in the property of the father-in-law, the only requirement is constitution of an illatom adoption with a specific agreement to give a share in the property. In the case on hand, the plaintiff proved and established that he is an illatom son-in-law and also the agreement. Therefore, the trial Court was in error in not accepting the case of the plaintiff and in dismissing the suit. The trial Court ought to have seen that the purpose of bringing the plaintiff as an illatom son- in-law is to see that he manages and develops the properties under the agreement that he will be given a half share in the properties of late Ramaiah and that therefore, the partition of properties into two halves during lifetime of Ramaiah would defeat the purpose of illatom adoption. Hence, the suit is filed only after the death of Ramaiah and on the defendant Nos.1, 3 & 4 not co-operating for partition, despite the plaintiff agreeing to give to them, their respective shares in the plaint schedule property. Therefore, there is nothing strange and no motive can be attributed for the plaintiff bringing the suit after the death of Ramaiah. The statement of Ramaiah before the Land Reforms Appellate Tribunal is to the following effect : - He agreed to give a half share in his property to the plaintiff, who is his son-in-law, if he comes to his house as an illatom son-in-law; on such agreement, the parents of plaintiff agreed to send plaintiff as an illatom son-in-law; on such agreement to give a half in his properties to the plaintiff, late Ramaiah brought the plaintiff to his house; and, on the very same day, he performed the marriage of his daughter with the plaintiff; he also executed a document pursuant thereto. However, the said statement of Ramaiah was not accepted by the Land Reforms Appellate Tribunal is true. Nonetheless, the fact of the matter is that late Ramaiah during his lifetime made a specific statement in the Land Reforms Proceedings that he brought the plaintiff as his illatom son-in-law having agreed to give a half share in his property. The said admission made by late Ramaiah is binding on the defendants 1 to 3, who are his daughters and wife. The said admission is proof positive that the plaintiff is brought to the house of Ramaiah, only on illatom adoption and affiliation and under an agreement to give a half share to him. The trial Court ignored the said admission and failed to appreciate the facts and legal position correctly & in proper perspective. Though the plaintiff is not seriously disputing the execution of the Registered Will by late Ramaiah, the contention of the plaintiff is that the said Will is not valid and is void insofar as the plaintiffs undivided half share in the plaint schedule property, which was held together and jointly by the plaintiff and Ramaiah during the lifetime of Ramaiah. Therefore, the Will, if any, executed by late Ramaiah is not valid insofar as the undivided half share of the plaintiff in the plaint schedule property. Further, the settlement deeds/gift deeds, if any, executed by the third defendant, wife of Ramaiah, as per the bequests in her favour in the Will also do not bind the plaintiff as they are also consequently void for the same reason that Ramaiah had no right in the entire plaint schedule property and as he had only a half undivided share in the plaint schedule property. The findings of the trial Court accepting the version of defendants 1, 3 & 4 to the effect that it appears that in an anxiety to save the property from being surrendered to the Government, late Ramaiah gave the statement in his land ceiling case saying that the plaintiff is his illatom son-in-law and the further findings based on the findings of the Land Reforms Appellate Tribunal are all untenable as the findings of the Land Reforms Appellate Tribunal in the Common Order made in the Land Reforms Appeals are of no avail to defendants 1 to 4, as admittedly Ramaiah during his lifetime made a categorical admission in his land reforms case that the plaintiff is his illatom son-in-law and that he agreed to give a half share to the plaintiff at the time of marriage of the plaintiff with his second daughter, the second defendant, and as the said candid admission requires no further proof. The admission made by Ramaiah in his declarations & his pleadings and deposition in the land reforms cases, which are signed by him, can be used as evidence against him in the present suit. Therefore, the judgment of the trial Court is unsustainable under facts and in law and is liable to be set aside. Hence, the appeal may be allowed and the suit may be decreed in favour of the plaintiff as prayed for.
16. In support of the contentions based on the admission of Ramaiah made in the land reforms proceedings, reliance is placed on the following two decisions: Sarvabhotla Thotapalle Chendikamba v. Kanala Indrakanti Viswanathamayya and others , and Basant Singh v. Janki Singh and others (In C.A.No.19 of 1963) and Basant Singh v. Kishundhari Singh and others (In C.A.No.20 of 1963) . Learned senior counsel further placed reliance on the decision in Nagi Reddi v. Nanjundappa in support of the contention of the plaintiff that he is entitled to claim half share of property of late Ramaiah on the basis of illatom affiliation/adoption as he belongs to kamma community where there is a customary illatom affiliation or adoption, which has crystallized into a Rule of Law.
17. Per contra, the learned counsel appearing for respondents 1, 3 & 4 i.e., defendants 1, 4 and 5, while supporting the decree and judgment of the trial court and while reiterating the defence of the said defendants, contended as follows: - The allegations that the plaintiff was brought as an illatom son-in-law under an agreement that Ramaiah would give a half share in his property to him and that later after the marriage, the plaintiff along with his wife joined Ramaiah and his wife and that they lived under one roof and that the plaintiff managed and developed the properties of late Ramaiah and that the properties were held together and jointly by the plaintiff and Ramaiah during the lifetime of Ramaiah, are all false and invented allegations. There was never any such agreement. The plaintiff was never brought as an illatom son-in-law. They never lived under one roof as alleged by the plaintiff. In view of non-acceptance of the statement of the Ramaiah before the Land Reforms Appellate Tribunal and the findings of the Land Reforms Appellate Tribunal in the common order, the plaintiff is not entitled to once again contend in this suit that he is an illatom son-in-law entitled to a half share in the properties of late Ramaiah. The findings in the common order of the Land Reforms Appellate Tribunal operate as res judicata and the plaintiff is estopped by record from contending contrary to the findings in the said common order. The Registered Will executed by Ramaiah would indicate that he himself accepted the findings in the common order of the land reforms appellate tribunal and the truth that there is no illatom adoption. Hence, the Will executed in a sound and disposing state of mind by Ramaiah bequeathing many of his properties thereunder to his two daughters and wife is true, valid and binding on all the parties. The third defendant after the death of Ramaiah executed the gift settlement deeds in favour of defendants 1 and 4 in respect of the properties, which devolved upon her under the Will of Ramaiah. The respective sharers are enjoying the respective shares as per the bequests in the Will. The Will was acted upon by the parties. The plaintiff suppressed certain properties including the properties that were given under the Will by Ramaiah to his wife, the second defendant. His said conduct shows that the suit is filed for a wrongful gain and to deprive defendants 1 and 3 of their legitimate shares. It is pertinent to note that wife of Ramaiah, i.e., Janakamma, during his lifetime did not support the plaintiff that he is illatom son-in-law of the family and contended that he is not entitled to half share. The suit was conveniently brought after the death of Ramaiah by keeping quiet during his lifetime also indicates that the claim is false and untenable. The bequests in the Will show that the properties of Ramaiah were bequeathed by him in an equitable and fair manner. There is no agreement much less express agreement. The alleged written agreement relied upon in the land reforms case is not admittedly filed in this case. Hence, the plaintiff has no right to claim partition. The trial Court, after considering the facts and evidence correctly, arrived at correct conclusions on all the issues. The well considered judgment and the decree of the trial Court do not warrant interference. The appeal is liable to be dismissed.
18. I have given earnest consideration to the facts and submissions. I have carefully gone through the oral and documentary evidence.
19. Now the points that arise for determination in this appeal suit are:
1. Whether the plaintiff was brought by Ramaiah as an illatom son-in-law pursuant to an agreement at the time of marriage of plaintiff with his second daughter that he would give him a half share in his property? And if so, whether the plaintiff is entitled to the declaration sought for and partition of the plaint schedule property into two equal shares and allotment of one such separated share to him?
2. Whether the Registered Will Deed, dated 08.07.1986, stated to have been executed by late Ramaiah is true, valid and binding on the parties to the suit?
3. Whether the decree and the judgment of the trial Court are unsustainable under facts and in law as being contended by the plaintiff?
4. To what relief?
20. POINT No.1:-
20.1 To begin with, it is to be noted that the relationship is not disputed. The 1st defendant and the 2nd defendant are the daughters of late Ramaiah and his wife, Janakamma, the 3rd defendant (since died).
The 4th defendant is the married daughter of the 1st defendant. The plaintiff is the second son-in-law of late Ramaiah as the second defendant, who is the second daughter of late Ramaiah was given in marriage to him. Ramaiah was the original owner of the entire plaint schedule property. He had no male issues.
20.2 In the above said background of admitted facts and relationship, the case of the plaintiff in support of the contention that he is entitled to a half share in the properties of Ramaiah is as follows:-
Since Ramaiah had no male issues, the plaintiff, who is the 2nd son-in- law, was brought more than 30 years ago as an illatom son-in-law as is customary in kamma community. At the time of getting the plaintiff as illatom son-in-law from his native village Lingapalem of Sathupalli Taluq, Ramaiah had agreed to give half of his property to the plaintiff. Having accepted the same and after the marriage with the second defendant, the plaintiff came down and settled at the house of Ramaiah and had assumed the management of the property and developed the same and served Ramaiah and his wife, late Janakamma (the deceased 3rd defendant). The plaintiff and the 2nd defendant, who is his wife, and her father Ramaiah lived together under one roof at Kothur Village, H/o Ammapalem Village. In the last days of Ramaiah, the plaintiff and his wife, the second defendant, served him; and, on the death of Ramaiah, the plaintiff, who is his illatom son-in-law, performed the obsequies. The plaintiff and late Ramaiah jointly held and possessed the lands and house, i.e., plaint schedule property with equal rights of ownership. Therefore, the plaintiff is entitled to a half share in the plaint schedule property. Per contra, the case of the defendants 1,3 & 4 is in the nature of denial. Their specific defence is that there was no agreement between Ramaiah and the plaintiff to their knowledge and that the plaintiff is not the illatom son-in-law of Ramaiah and that he, his wife/the 2nd defendant and Ramaiah never lived under one roof and that Ramaiah executed a registered Will deed, dated 08.07.1986 in a sound and disposing state of mind and that under the said Will he bequeathed his properties to his two daughters and wife.
20.3 Be it noted that the initial onus of proof is on the plaintiff to prove not only the pleaded agreement but also that he was brought by Ramaiah as an illatom son-in-law. Learned senior counsel appearing for the plaintiff, while reiterating the contentions of the plaintiff, first highlighted the undisputed legal position with regard to illatom affiliation or illatom adoption. There is no dispute with the legal position that in Kamma community there was a custom to enter into an agreement to give a share in the property and bring a son-in-law as illatom son-in-law and that such illatom adoption prevailed among kamma caste in the Madras Presidency and that in such an event of illatom affiliation or illatom adoption such a son-in-law would be entitled to a share as agreed to between the parties. This custom gained recognition of law.
(See:AIR 1940 Madras 761 & AIR 1965 SC 209). It is also settled position that merely because a son-in-law is an illatom son-in-law he will not get any right to claim partition in the property of his father-in-law unless there is also an express agreement as per the custom prevailing in the community. Thus, in the absence of an express agreement an illatom son-in-law is not entitled to claim a share in the property of his father-in- law. In G. Narayanappa v. Government of AP the Supreme Court held that an illatom son-in-law is in a sense, a creature of custom. It is well settled by a series of decisions that a custom of illatom adoption prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency. The Supreme Court also noted that it is stated in Mayne's Hindu Law and Usages, 13th Edition, Paragraph 242 in Chapter VII, as follows:
A custom known as that of illatom adoption prevails among the Reddi and Kamma castes in the Madras Presidency. It consists in the affiliation of a son-in-law, in consideration of assistance in the management of the family property. No religious significance appears to attach to the act. Neither the execution of any document nor the performance of any ceremony is necessary. The incidents of an illatom adoption have now become crystallized into fixed rules of law by a long course of decisions. To constitute a person an illatom, a specific agreement is necessary.... After the death of the adopter he is entitled to the full rights of a son even as against natural sons subsequently born or a son subsequently adopted in the usual manner.
It has also been stated by Mayne that an illatom son-in-law has no right to claim partition with his father-in-law unless there is an express agreement or custom to that effect. An illatom son-in-law is not an adopted son in any sense.
Therefore, in order to succeed in the suit, the plaintiff has to prove that he is not only an illatom son-in-law but also the existence of an agreement with Ramaiah under which Ramaiah agreed to give a half share in his property to the plaintiff. He deposed as PW1 and examined PWs2 to 11 and marked exhibits A1 to A24. Coming to the first aspect that he was brought as an illatom son-in-law and that he lived along with his wife under one roof with Ramaiah and his wife Janakamma and managed and developed the properties and served them in the last days, it is to be noted that the plaintiff did not file any documentary proof in support of the said case pleaded by him. Further, PW1 admitted in his cross examination that his name is entered in the voters list as resident of 3-19 of Kothur village and that he cannot say whether Janakamma and her husband Ramaiah resided in 3-22 of Kothur village as per 1986 voters list. This admission also probablises the defence that the plaintiff was not brought as illatom son-in-law to the house of Ramaiah and that he never lived under one roof with Ramaiah and Janakamma. However, assuming for a moment that he was brought as an illatom son-in-law, it is to be now examined as to whether the agreement entered into by Ramaiah to give a half share in his properties is proved or not. Apart from the oral assertions in the evidence, the plaintiff relies upon the Land Reforms declaration given by Ramaiah and the deposition of Ramaiah in the said proceedings in support of his plea as regards the existence of such an agreement. It is undisputed that late Ramaiah gave evidence in the said proceedings and that exhibit A2 is the copy of his deposition. Exhibit B5 is the common order, dated 25.09.1976, of the land Reforms Appellate Tribunal, Khammam, passed in LRTA.Nos.147 & 148 of 1976 filed by the Government in which the said Ramaiah and the plaintiff respectively are the respondents. No doubt, Ramaiah in his deposition before the appellate tribunal stated as follows: - Fifteen days before execution of the document he expressed his desire that he intends to perform the marriage of his daughter. He asked the willingness of the parents of the plaintiff to send the plaintiff as illatom son-in-law. They stated that if he gives in writing that he would give a half share in his properties, they would send the plaintiff as an illatom son in law. At that time, his daughter was aged thirteen years and the plaintiff was of eighteen years of age. He was unwell and was requiring assistance to cultivate his lands. Hence, he agreed to give a half share in his properties. His first daughter/Santamma has no male issues. He had also no male issues. After the marriage, he executed a document. The agreed terms are, he and the plaintiff shall share equally his property but cultivate the property jointly and share the net profits equally. Since five or six years prior to his giving evidence before the Tribunal (that is five or six years prior to 21.08.1976) he and plaintiff while residing in the same house are having separate messes but they are cultivating the lands jointly and sharing the net profits without dividing the land by laying bunds. However, what is to be noted is that the said document by which the terms of agreement were said to have been reduced into writing is not filed and exhibited in this suit. PW1 admitted in his cross examination that he did not take return of the document from the record of the Land Reforms Appeals on the file of District Court, Khammam. It is also suggested to him that since the said document is against the case of the plaintiff, he did not file the same in this suit proceeding. No explanation is forthcoming for not filing and exhibiting the crucial document. Be that as it may. Learned District Judge-cum- Chairman of the Land Reforms Appellate Tribunal did not accept the theory of illatom adoption and the agreement to give a share to the plaintiff and allowed the appeals of the Government subject to certain directions. In the said common order as is evident from exhibit B5 the learned Chairman of the Tribunal clearly found that the alleged illatom adoption is false and is set up for the purpose of defeating the provisions of land ceiling legislation and that the alleged illatom dakhalu dasthaveju is a bogus and cooked up document for the purpose of the proceedings and that plaintiff cannot get a half share in the properties of Ramaiah. As a sequel to the said findings, learned Chairman of the Tribunal also held that there is no surplus holding in the holding of the plaintiff. A perusal of exhibit B5, the copy of the common order in the Land Reforms Appeals also would reflect that the learned Chairman of the Tribunal observed as under: -
After concluding this appeal, I feel that mention should be made about the tampering of the public records like original pahanies for the years from 1964-65 to 1972-73 which were in the Taluk Office, Stahupalli. In all these original pahanies the name of Gudipudi Ramaiah was originally written in column No.16 describing him as cultivator of the relevant survey numbers concerned in this case and subsequently the name of Yerra Veeraiah was written under the name of Gudipudi Ramaiah and the writing of the name of Yerra Veeraiah is seen to be in a different ink and is patently of recent origin. If this kind of writing appears at one place or in one register it may pass off as a correction of genuine mistake. But this kind of tampering in a number of successive pahanies is clearly indicative of a sinister and treacherous attempt by the members of the staff working in the Taluk Office at Sathupalli. These tamperings must have been done with the connivance of the respondents in this case with a view to help them to defeat the provisions of the Land Reforms Act and nobody can say that the staff of the tahsil office would have been obliged to do so gratis. It is a very serious matter because the public records like the pahanies had been freely tampered with without any fear of punitive repercussions.
Having so observed the learned Chairman marked copy of the order to the District Collector for necessary action. Thus, the findings of the learned District Judge-cum-Chairman in the Land Reforms Appeals referred to supra make it manifest that the theory of illatom adoption is invented by Ramaiah and the plaintiff for the purpose of defeating the land reforms laws. This aspect of the matter amply establishes the version of the defendants 1 & 3 that Ramaiah in his anxiety to save the property from being surrendered to the Government under the land reforms laws resorted to creation of the false theory of illatom adoption. The observations of the learned Judge referred to supra as are evident from exhibit B5 also would lay bare that the land was not under joint cultivation as per entries in revenue records like pahanies and that the records were also manipulated to support the theory of illatom adoption and joint cultivation falsely introduced in the land reforms proceedings. Had the theory of illatom adoption been believed by the Tribunal and the half share in the lands of Ramaiah had been included in the holding of the plaintiff, it is doubtful whether the plaintiffs holding would have been non surplus. However, it is apparent that as the theory of illatom adoption is not believed and it was held that plaintiff is not entitled to a half share in the lands of Ramaiah, the Appellate Tribunal found that the holding of the plaintiff is non surplus holding. Be that as it may.
20.4 Learned senior counsel appearing for the plaintiff forcefully contended that the admission of Ramaiah in his deposition given before the Land Reforms Appellate Tribunal is the best form of proof on which the plaintiff can rely upon and that there is no need for any other proof.
He placed reliance on the decision of the Supreme Court in Basant Singh v. Janki Singh and others in support of the following contentions: Such admission of Ramaiah as between the parties is conclusive. An admission by Ramaiah in his declarations, pleadings and evidence in the Land Reforms Proceedings is an admission within the meaning of Section 17 of the Indian Evidence Act and such admission in the pleading signed and deposition is admissible against him in other actions and an admission in a pleading in a former proceeding signed by party is evidence against him in another suit not only with regard to a different subject matter but also against a different opponent. I have gone through the decision. In this cited decision, the Supreme Court held in paragraph 5 as follows:
The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. The observations of Beaumont, C.J. in Ramabai Shriniwas v. Bombay Government [AIR 1941 Bom 144, lend some countenance to this view. But those observations were commented upon and explained by the Bombay High Court in D. S. Mohite v. S. I Mohite [AIR 1960 Born 153]. An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of s. 17 of the Indian Evidence Act, 1872, and may be proved against him in other litigations. The High Court also relied on the English law of evidence. In Phipson on Evidence, 10th Edn, Art. 741, the English law is thus summarised:
"Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself."
Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns [(1852) 1 Macq 212], the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject-matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.
In the considered view of this Court this argument does not merit consideration and does not advance the case of the plaintiff any further in view of the findings recorded by the District Judge-cum-Chairman of the Land Reforms Appellate Tribunal which are adverted to supra and also for the following among other reasons:
What is to be noted first is that in the land reforms proceedings, the plaintiff sailed with Ramaiah, his father-in-law and they both have put forward the theory of illatom adoption and entitlement of the plaintiff to a half share in the lands of Ramaiah. Therefore, the plaintiff was sailing with Ramaiah in the proceedings in which Ramaiah made a statement both in the pleadings and in the evidence in the above regard. A statement of a party either in his pleading or evidence is a self serving statement. It cannot be termed as an admission being a self serving statement of that party. Since Ramaiah made a statement before the land reforms appellate tribunal on his own behalf and on behalf of the plaintiff, his statement either in pleading or his deposition before the land reforms tribunal remains a self serving statement insofar as both Ramaiah and the plaintiff and the plaintiff cannot make use of the same as an admission to relieve himself of the onus of proof to prove the fact in issue in this action against the defendants. A statement in a pleading of a party acquires the status of an admission in the event the same party or the party supporting him denies the said statement or takes a contrary stand in a subsequent action and when the opposite party intends to make use of the said statement in the former pleading by putting the said statement against the party who made the statement or the party who supported him in the former action. A party, who made a statement in a pleading in the former proceeding or a party who supported him cannot use the same as an admission to their own advantage in a subsequent action as such a pleading remains a self serving statement insofar as the party making it or the party supporting him. Moreover, the defendants, who are disputing the said theory of illatom adoption jointly put forward by Ramaiah and the plaintiff in the land reforms proceedings, had no opportunity to cross examine Ramaiah in the said proceeding. Therefore, the said self serving statement cannot be used as an admission against the contesting defendants in this action more particularly when the said theory of illatom adoption is held to be false and bogus by the land reforms appellate tribunal. It is discernable that Ramaiah having accepted the finding of the Land Reforms Appellate Tribunal that the theory of illatom adoption is not true treated his properties as his exclusive properties and executed a registered Will, exhibit B1, on 08.07.1986, in respect of many of his properties. In view of the said Will executed by Ramaiah, it follows that even Ramaiah during his life time conceded the fact that the theory of illatom adoption, which was not accepted by the land reforms appellate tribunal, is not true and that it was introduced only to see that no property of the family is lost on account of the land reforms laws.
20.5 On the above analysis, this Court finds that the case of the plaintiff that he was brought by Ramaiah as an illatom son-in-law pursuant to an agreement, at the time of marriage of the plaintiff with his second daughter, that he would give a half share in his property is not true and that, therefore, the plaintiff is not entitled to either the declaration sought for or seek partition of the plaint schedule property into two equal shares and allotment of one such separated share to him. Point no.1 is accordingly answered.
21. POINT No.2:
As regards the genuineness of the registered Will, the plaintiff stated in the plaint as follows: - The plaintiff had no knowledge as to the execution of such Will Deed by Ramaiah much less, on 08.07.1986, nor he had knowledge as to the bequests of properties under the said Will Deed. The plaintiff had an occasion to see such Will for the first time when it was filed into the Court in the above said suit.
Ramaiah was aged more than 85 years and had lost his eye sight completely and was also deaf. His memory was also quite fading on account of ripened age. Therefore, in view of his physical condition, the execution of any Will Deed much less a Registered Will Deed by him is a myth. He further pleaded as follows: - The registered Will Deed does not appear to be the Will of late Gudipudi Ramaiah and the bequests do not appear to have been made in full senses. Even assuming that the execution of the so called Will Deed is true, since the plaintiff and late Gudipudi Ramaiah were the joint owners and possessors of the entire plaint schedule property and since there was no partition as such between Ramaiah and the plaintiff, Ramaiah could not have bequeathed the entire plaint schedule property to the consternation and peril of the joint interest of the plaintiff in the property. In that view of the matter, the Will Deed by late Gudipudi Ramaiah, even if it is legally valid, is not binding upon the plaintiff and it is liable to be ignored as a void document insofar as the half share of the plaintiff in the plaint schedule properties. The so called Will Deed at a glance reveals that it was the first defendant and her husband, who had fabricated the same in order to knock away 3/4th of the property and to deprive the plaintiff and his wife, the 2nd defendant, of the fruits of their hard labour and service of many years rendered to late Gudipudi Ramaiah and his wife, the 3rd defendant. Thus, there is no specific denial of the Will. Further, in the plaint a declaration was sought that the Will is null and void and thus, it is not specifically contended that the Will is not executed by late Ramaiah. In-fact before this Court the genuineness of registered Will Deed, dated 08.07.1986, stated to have been executed by late Ramaiah is not disputed and it is only contended that the bequests in the Will are void insofar as the half share of the plaintiff in view of the agreement and on the basis of illatom adoption between Ramaiah and plaintiff. However, this Court already held that the said plea of the plaintiff with regard to giving a half share to the plaintiff under an agreement and illatom adoption is not true. Therefore, it follows that the said Will deed of Ramaiah is valid in respect of all the bequests therein. However, this Court also examined the evidence brought on record as regards the truth and genuineness of the said Will. PW1 stated in his evidence that in the defence of defendants 1 & 4 in OS.No.19 of 1990 it was stated that items nos.1 & 4 of the plaint schedule properties were bequeathed to them by late Ramaiah and the 3rd defendant and that he came to know about the said Will for the first time only after the filing of the said suit. He further deposed that Ramaiah had no right to execute the said Will deed in favour of the said defendants as he (the plaintiff) is having half share in the entire plaint schedule property. He also deposed that he impleaded the 4th defendant, who is the daughter of the 1st defendant, as she got property through 3rd defendant under the guise of exhibit B1- Will, the copy of which was marked in his evidence as exhibit A1. He also stated that he knows the particulars of all the properties covered by the Will executed by his father-in-law. Thus, he admitted the execution of exhibit B1-Will by late Ramaiah and, therefore, the truth and validity of the said Will is not put in issue. In-fact, it is not in dispute that Ramaiah bequeathed certain lands in Sy.No.241, 270 & 271 in favour of the wife of the plaintiff, the 2nd defendant herein, and the said properties of late Ramaiah are not admittedly included in the schedule of the present plaint. He also admitted that the properties bequeathed under the Will executed by Ramaiah in favour of his wife, 2nd defendant, are in his possession. Thus, it is clear from his evidence that he did not dispute the execution of the Will and that on the other hand, his evidence also shows that the Will was acted upon and the beneficiaries under the Will are enjoying some of their respective properties as per the bequests in the Will. Further, the 1st defendant, who is the propounder of the Will, had spoken about the execution of Will, exhibit B1, by late Ramaiah in a sound and disposing state of mind. In her evidence, the execution of the Will by Ramaiah is not disputed. She further examined DW3, the scribe of the Will, who was aged about 70 years on the date of his evidence and who is also the scribe of exhibits B2 to B8. His deposition shows that he deposed not only about the scribing the Will to the dictation of the executant Ramaiah but also about Ramaiah affixing his thumb mark in his presence and the attestation of the Will by four attestors in his presence and Ramaiah taking the document to Sub-Registrars Office, Sathupalli for registration, after its execution. Thus, though he is a scribe he also had animus attestandi and he acted as an attestor too while acting as the scribe as well of exhibit B1 Will. Hence, it can safely be held that exhibit B1-Will is true, valid and binding on the parties. Point is accordingly answered.
22. POINT No.3:
I have gone through the decree and judgment of the trial Court. As a sequel to the aforestated findings of this Court on points 1 & 2 supra, it is to be held that the contention of the appellant/plaintiff that the decree and judgment of the trial court are unsustainable under facts and in law is without merit and is liable for rejection. On carefully evaluating the pleadings and the oral & documentary evidence and after going through the judgment of the trial Court, this Court, for the reasons assigned in this judgment, finds itself in agreement with the findings recorded by the trial Court on the issues settled and accordingly holds that the trial Court is justified in decreeing the suit of the plaintiff. In that view of the matter, the well considered judgment of the trial Court brooks no interference. Point is accordingly answered against the appellant/plaintiff.
23. POINT No.4:
In the result, the appeal suit is dismissed. No costs.
Miscellaneous petitions pending, if any, shall also stand dismissed.
_____________________________ M.SEETHARAMA MURTHI, J 11.04.2018