Andhra Pradesh High Court - Amravati
M. Gangamma vs P.Anasuya And 3 Others on 17 November, 2023
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A.S. No. 1191 of 1999
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
A.S. NO. 1191 of 1999
Tr.A.S. NO. 405 of 2003
Tr.A.S. NO. 1112 of 2003
COMMON JUDGMENT:-
1) The A.S. No. 1191 of 1999 is filed against the Decree and Judgment, dated 30.11.1998, passed in O.S. No. 266 of 1983 on the file of the Additional Senior Civil Judge, Guntur. The Plaintiff - Musunuru Gangamma filed the Suit against the Defendants for claiming the relief of declaration of title in Item No. 1 of plaint "A" schedule property subsequent to the life time of 1st Defendant-husband [Musunuru Venkatanarayana] and so also claiming maintenance @ Rs.500/- per month from the 1st Defendant. The 2nd Defendant in the aforesaid Suit is the daughter of the 1st Defendant. The Suit was dismissed by the trial Court. The Appeal is filed by the Plaintiff - Musunuru Gangamma.
2) Tr.A.S. No. 405 of 2003 is filed against the Decree and Judgment, dated 30.11.1998, passed in O.S. No. 80 of 1985 2 A.S. No. 1191 of 1999 on the file of the Additional Senior Civil Judge, Guntur. The Plaintiff - Patchava Anasuya and her husband - Patchava Narasimha Rao filed the Suit against the Defendants - Musunuru Venkatanarayana [father of the 1st Plaintiff], Challapalli Gangamma @ Musunuri Gangamma and another for relief of declaration of the 1st Plaintiff's title to Item No. 1, 3(b) and 3(a) of the plaint schedule property and so also consequential permanent injunction. The trial Court decreed the Suit. The Appeal is filed by the 2nd Defendant - Musunuru Gangamma.
3) Tr.A.S. No. 1112 of 2003 is filed against the Decree and Judgment, dated 30.11.1998, passed in O.S. No. 342 of 1986 on the file of the Additional Senior Civil Judge, Guntur. The Plaintiffs - Patchava Anasuya and her husband - Patchava Narasimha Rao filed the Suit for recovery of money against Musunuru Venkata Narayana [father of the 1st Plaintiff], Musunuru Gangamma and another. The trial Court decreed 3 A.S. No. 1191 of 1999 the Suit. The Appeal is filed by the Musunuru Gangamma/2nd Defendant alone.
4) All the aforesaid three Suits are tried together and common evidence is recorded in O.S. No. 80 of 1985 by the trial Court. Therefore, all the appeals are heard together and common judgment is being pronounced by this Court in all these three appeals.
5) The parties to the above three appeals are referred to as arrayed before the trial Court.
6) As stated supra, the trial Court clubbed all the aforesaid three Suits and another Suit O.S. No. 287 of 1985 and common evidence is recorded in O.S. No. 80 of 1985 and all the three Suits are being disposed of by way of common judgment. All the above three appeals are filed by Musunuru Gangamma. Musunuru Gangamma is not a party to O.S. No.287 of 1985. The learned Counsel for the Plaintiffs would submit that, the O.S. No. 287 of 1985 is decreed by the trial Court, but no appeal is pending against the said Judgment. 4 A.S. No. 1191 of 1999 Therefore, the said Decree and Judgment in O.S. No. 287 of 1985 has attained finality.
7) A.S. No. 1191 of 1999 [O.S. No. 266 of 1983 on the file of the Additional Senior Civil Judge, Guntur] - The Plaintiff- Musunuru Gangamma, in O.S. No. 266 of 1983, filed the Suit against the Defendants for claiming relief of declaration of title in Item No. 1 of plaint "A" schedule property subsequent to the life time of the 1st Defendant and so also claiming maintenance from the 1st Defendant.
8) The brief averments in the plaint, in O.S. No. 266 of 1983, are as follows:
(i) The 2nd Defendant is the wife of the 3rd Defendant and daughter of the 1st Defendant begotten through his first wife, who died on 28.06.1976. The 1st Defendant married the Plaintiff, as his second wife, on 04.09.1991 at Sri Lakshmi Padmavathi Sametha Sri Venkateswaraswamy Devastanam (Vaikuntapuram), 5 A.S. No. 1191 of 1999 Tenali, as per Hindu rites and both of them lived at the 1st Defendant's house at Pedavadlapudi.
(ii) The 2nd Defendant [daughter of 1st Defendant] filed O.S. No. 6 of 1982 on the file of Sub-Court, Guntur, against the 1st Defendant with respect to the property bequeathed by her mother to the 1st Defendant under a Will, dated 12.06.1976, which on her death devolved upon the 1st Defendant.
(iii) The 1st Defendant is the absolute owner of plaint 'A' schedule property. The 1st Defendant settled item No.1 of 'A' schedule property reserving life estate for himself and conveyed the vested remainder to the Plaintiff under a Gift Deed, dated 19.09.1981. The 2nd and 3rd Defendants gained control over the 1st Defendant and fabricated the Gift Deeds, dated 14.07.1982, 19.08.1982 and 17.09.1982, respectively, for the entire property of the 1st Defendant including item No.1 of 'A' schedule property, which was conveyed to the Plaintiff under a 6 A.S. No. 1191 of 1999 gift deed, dated 19.09.1981. The said gift deeds executed by the 1st Defendant are all void and unenforceable and do not bind on the Plaintiff. Though the Plaintiff issued notice, dated 11.10.1982, which was acknowledged by the Defendants, but no reply was given.
(iv) At the instance of the 2nd and 3rd Defendants, the 1st Defendant deserted the Plaintiff and later the 1st Defendant came to the village along with the 2nd and 3rd Defendants and forcibly dragged out the Plaintiff from the residential house and locked the same and, as such, the 1st Defendant is liable to provide maintenance to the Plaintiff including residence.
(v) The 'A' schedule property is a fertile land, fetching an annual net income of Rs.4,000/- per acre. The 4th Defendant is a tenant on the 'A' schedule property on a yearly rent of Rs.3,000/-. Hence, the Suit is filed seeking for declaration of title to item No.1 of plaint 'A' 7 A.S. No. 1191 of 1999 schedule property after the life time of the 1st Defendant and also for past and future maintenance.
9) The 1st Defendant is set ex parte; while the claim against the 4th Defendant was given up. The 2nd and 3rd Defendants filed written statement. The brief averments in the written statement is as follows:
(i) The 2nd and 3rd Defendants while denying the entire plaint averments in limini submitted that the 2nd Defendant is the only child of the 1st Defendant. The 1st Defendant is a man aged of 78 years and his wife Bhramaramba [mother of the 2nd Defendant] was in possession and enjoyment of the schedule property till her death on 28.06.1976.
(ii) In January 1976, the mother of the 2nd Defendant -
Bhramaramba fell and fractured her thigh bone. Initially she was treated at Vijayawada and later got shifted to Government General Hospital, Guntur, and consequently admitted in the Nursing Home of 8 A.S. No. 1191 of 1999 Dr.N.Subba Rao at Vijayawada. The 1st Defendant while visiting her often gained her confidence and fraudulently got executed a Power of Attorney, dated 12.05.1976, in his favour, to act on her behalf in regard to her properties and registered it with her thumb impression, though she was a signatory. On the same day, the 1st Defendant also got a Will registered in the Hospital in his favour. On knowing the fraudulent execution of Power of Attorney and so also the Will, she executed a Will, dated 14.06.1976, cancelling the earlier Will, dated 12.05.1996, bequeathing the entire property to the 2nd Defendant with absolute rights, except giving life interest in the house at Pedavadlapudi Village to the 1st Defendant with the vested remainder to the 2nd Defendant. The said Bhramaramba died on 28.06.1976 leaving the 2nd Defendant in possession and enjoyment of the schedule property.
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(iii) The Plaintiff by tricking the father of the 2nd Defendant performed a marriage without disclosing her previous marriage with one P.Nageswar Rao of Nagulapadu, and without annulling the marriage. Thus, the Plaintiff is not a legally wedded wife of the 1st Defendant and, therefore, she has no locus to claim right either over the 1st Defendant or his property. Therefore, the allegation of execution of property in favour of the Plaintiff by the 1st Defendant is per se unsustainable.
10) Based on the above pleadings, the following issues are settled by the trial Court in O.S. No. 266 of 1983.
1) Whether the will dated 14.6.76 is the last will and testament of Bhramaramba?
2) Whether the plaintiff is the legally wedded wife of the 1st defendant?
3) Whether the gift deed dated 4.9.81 is true, valid and binding on the defendants 2 and 3?
4) Whether the defendants 1 and 2 entered into a compromise of their claims in O.P. No. 6/82 Sub-Court, Guntur, and withdraw for the same?
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5) Whether the revocation deed dated 16.9.82 and the dakal deed dated 14.7.82, 17.9.82 and 19.8.82 by the 1st defendant are true, valid and binding on the plaintiffs?
6) Whether the plaintiff is entitled to maintenance, if any, and at what rate and against which of the defendants and properties as per the schedule?
7) To what relief?
Additional issues framed:
1) Whether D1 did not disposed of the schedule?
2) To what relief?
11) Tr.A.S. No. 405 of 2003 [O.S. No.80 of 1985 on the file of the Additional Senior Civil Judge, Guntur] - The Plaintiffs - Patchava Anasuya and her husband Patchava Narasimha Rao filed the Suit against the Defendants for claiming relief of declaration of 1st Plaintiff's title to Item Nos.1, 3(b) and ½ of item No. 3(a) of schedule property and consequential permanent injunction.
12) The brief averments in the plaint, in O.S. No. 80 of 1985, are as follows:
(i) The 1st Plaintiff is the wife of the 2nd Plaintiff. The 1st Plaintiff is the only daughter of the 1st Defendant and 11 A.S. No. 1191 of 1999 his wife Bhramaramba. The schedule property is the property of the mother of the 1st Plaintiff- Bhramaramba and she was in possession and enjoyment till her death on 28.06.1976.
(ii) The mother of 1st Plaintiff - Bhramaramba fractured her thigh bone. Initially, she was treated at Government General Hospital, Guntur and subsequently admitted in a Nursing Home of Dr. N. Subba Rao at Vijayawada.
While she was in the Hospital, the 1st Defendant used to visit her often, gained her confidence and fraudulently got executed a Power of Attorney, dated 12.05.1976, in his favour to act on her behalf, in regard to her properties, and got it registered with her thumb impression, though she was a signatory. On the same day, the 1st Defendant also got a Will registered in the Hospital in his favour. On coming to know the fraudulent execution of documents, the mother of the 1st Plaintiff voluntarily in a sound 12 A.S. No. 1191 of 1999 state of mind executed a Will, dated 14.06.1976, cancelling the earlier Will, dated 12.05.1996, bequeathing the entire property of her in favour of the 2nd Defendant with absolute rights except giving life interest in the house at Pedavadlapudi Village to the 1 st Defendant with the vested remainder to the 2nd Defendant. After the death of Bhramaramba on 28.06.1976, the 2nd Defendant is in possession and enjoyment of the schedule property.
(iii) While so, the 2nd Defendant and her father lodged a report stating that the 1st Defendant married the 2nd Defendant and he was kidnapped by the Plaintiffs to get register some deeds. In-fact, the 2nd Defendant was earlier married to one P. Nageswar Rao, of Nagulapadu. The 1st Defendant after realizing the fraud played on him by the 2nd Defendant and also in obtaining of a gift deed, dated 19.09.1981, the 1st Defendant revoked the said gift deed by way of a registered Revocation Deed, 13 A.S. No. 1191 of 1999 dated 16.09.1982, and consequently executed three gift deeds, dated 17.09.1982, 19.08.1982 and 14.07.1982, respectively, in favour of the 1st Plaintiff and the 1st and 2nd Plaintiffs were put in possession of the schedule property and the Plaintiffs are doing cultivation of various crops. Since the Defendants are threatening and disturbing the peaceful possession and enjoyment of the Plaintiffs, the Suit is filed seeking the relief as stated supra.
13) The 1st Defendant is set ex parte. The 2nd and 3rd Defendants filed separate written statement. The brief averments in the written statement filed by the 2nd Defendant, is as follows:
(i) The 2nd Defendant, while denying the material averments in the plaint, pleaded that the Plaintiffs does not have title to the schedule property. The 1st Defendant married the 2nd Defendant on 04.09.1981 as 14 A.S. No. 1191 of 1999 per Hindu rites and they lived together at Pedavadlapudi.
(ii) The 1st Defendant is the absolute owner of item No.1 of schedule property and the same was settled to the 2nd Defendant reserving life interest for himself and vested remainder to her under a Gift Deed, dated 19.09.1981.
Subsequently, the 1st and 2nd Plaintiffs got fabricated the Will, dated 14.06.1976, and deeds dated 14.07.1992, 19.08.1992, 17.09.1982 and 01.09.1982. On coming to know the acts, the 2nd Defendant filed O.S.No.266 of 1983 for declaration of title of item No.1 and for past and future maintenance and as a counter- blast the present Suit is filed.
(iii) On the other hand, the 3rd Defendant filed his written statement stating that the 1st Defendant is in possession and enjoyment of item No.1 of schedule property, which was leased out to him and he paid makta of Rs.2,000/- per acre from 1982 - 1984. Since the 3rd Defendant is a 15 A.S. No. 1191 of 1999 tenant and to continue his tenancy, he approached the District Munsiff Magistrate Court at Mangalgiri by way of A.T.C.No.20 of 1985, wherein he is depositing rents; and the rest of the allegations, made in the plaint, are denied by him.
14) Based on the above pleadings, the following issues are settled by the trial Court in O.S. No. 80 of 1985.
1) Whether the marriage between the defendants 1 and 2 on 4.9.81 is valid?
2) Whether the gift deed dated 19.9.81 true, valid and binding on the Plaintiffs?
3) Whether the revocation deed dated 16.9.82 is true?
4) Whether the gift deed dated 17.9.82 and 19.8.82 and 14.7.82 are true?
5) Whether the will dated 14.6.76 is true, valid?
6) Whether the lease in favor of 3rd defendant is true, valid and binding on the plaintiffs?
7) Whether the plaintiffs have got title to and possession of the plaint schedule properties?
8) Whether the plaintiffs are entitled for declaration for the title to the suit properties?
9) Whether the plaintiffs are entitled for consequential permanent injunction?
10) Whether 1st defendant was in possession of item No. 1 of the plaint schedule property?
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11) Whether the advance payment of makta by the 3rd defendant to the 1st defendant as alleged is true, valid and binding on the plaintiffs?
12) To what relief?
15) Tr.A.S. No. 1112 of 2003 [O.S. No.342 of 1986 on the file of the Additional Senior Civil Judge, Guntur] - The Plaintiffs - Patchava Anasuya and her husband Patchava Narasimha Rao filed the Suit for recovery of money against Musunuru Venkata Narayana, Musunuru Gangamma and another.
16) The brief averments in the plaint, in O.S. No. 342 of 1986, are as follows:
(i) The schedule property belongs to the mother of the 1st Plaintiff, who is the wife of the 1st Defendant. The 1st Plaintiff is their only child. The 1st Defendant was a man of no morals and vested all his property and was living on his wife's property.
(ii) The mother of the 1st Plaintiff fell and sustained fracture injury to her thigh bone and she was admitted by the 17 A.S. No. 1191 of 1999 Plaintiffs in a Nursing Home of Dr. N. Subba Rao. The 1st Defendant used to visit her at Hospital and pretended affection and made her believe to look after the property. Later, the 1st Defendant while deceiving the mother of the 1st Plaintiff obtained not only a Power of Attorney but also a Will, which were registered on 14.05.1976 by getting the Sub-Registrar to the Nursing Home. On knowing the fraudulently registering the documents, the mother of the 1st Plaintiff executed a Will on 14.06.1976, in a sound state of mind, superseding the earlier Will but providing life interest to the 1st Defendant with residential house with vested remainder to the 1st Plaintiff and by bestowing absolute rights on the rest of the property.
(iii) The 1st Defendant was enticed by the 2nd Defendant and her father and allegedly performed a farce marriage and thereby obtained Gift Deed, dated 19.09.1981. The 1st Defendant revoked the said gift deed by executing a 18 A.S. No. 1191 of 1999 Revocation Deed, dated 16.09.1982, and executed three gift deeds, dated 17.09.1982, 19.08.1982 and 14.07.1982 in favour of the 1st Plaintiff. The 1st and 2nd Plaintiffs were put in possession of the schedule property and various crops are being raised in the schedule property.
(iv) On 14.04.1985, the 1st and 3rd Defendants stolen away the maize crop worth Rs.18,000/- from the schedule property against which, the Plaintiffs lodged a police report. To get over the same, the Defendants in collusion have brought into existence some false receipts with anti-dates showing the 3rd Defendant as a tenant and got filed A.T.C.No.20 of 1985 on the file of District Munsiff Court, Mangalagiri, against the 1st and 2nd Defendants and the Plaintiffs herein and obtained temporary injunction in I.A.No.783 of 1985. Later, the 1st and 3rd Defendants also stolen away maize crop worth Rs.15,000/- against which the Plaintiffs filed 19 A.S. No. 1191 of 1999 A.T.A.No.161 of 1985 on the file of District Court, Guntur, and got vacated the interim injunction on 20.12.1985. Meanwhile, the 1st and 3rd Defendants also took away jonna crop worth Rs.1,000/- raised by the Plaintiffs on the schedule property. Hence, the Suit is filed for claiming reliefs as sated supra.
17) The 1st and 3rd Defendants are set ex parte. The 2nd Defendant filed written statement. The brief averments in the written statement is as follows:
(i) The 2nd Defendant, while repudiating the allegations made in the plaint, pleaded that the Plaintiffs have no locus or title over the schedule property and they have no right to claim the value over the crops. The Suit is filed in collusion with 1st and 3rd Defendants to buttress the untenable claims of the Plaintiffs in O.S.No.266 of 1983 and O.S.No.80 of 1985. The gift deeds executed are neither true nor binding on the 2nd Defendant, since 20 A.S. No. 1191 of 1999 the Gift Deed executed by the 1st Defendant is true, valid and subsisting.
18) Based on the above pleadings, the following issues are settled by the trial Court in O.S. No. 342 of 1986.
1) Whether the gift deeds in favour of the plaintiff are true, valid and binding on the defendants?
2) Whether the 1st defendant obtained the power of attorney and a will from his wife without revealing the contents of the said documents?
3) Whether the will dated 14.6.76 in favour of the 1st plaintiff is true, valid and binding on the 1st defendant?
4) Whether the defendants 1 and 3 took away the crop on 14.4.85 forcibly?
5) To what relief?
19) As stated supra, the trial Court clubbed all the aforesaid three Suits and common evidence is recorded in O.S. No. 80 of 1985. The 1st Plaintiff - Patchava Anasuya is examined as PW1 and she also examined other three witnesses as PW2 to PW4 and got marked Ex.A1 to Ex.A18. The 2nd Defendant in O.S. No. 80 of 1985 i.e., the Plaintiff in O.S. No. 266 of 1983 Musunuru Gangamma is examined as DW1 and she also got examined other four witnesses as DW2, DW3, DW5 and DW6. 21 A.S. No. 1191 of 1999 DW6 is none other than the father of DW1. The 4th Defendant examined himself as DW4. The 2nd Defendant in O.S. No.287 of 1985 is examined as DW7 and on his behalf DW8 is examined. Ex.B1 to Ex.B23 are marked.
20) The Suit in O.S. No. 287 of 1985 is decreed in favour of the Plaintiff No.1 - Patcha Anasuya. As stated supra, no appeal is pending against the said Judgment. Therefore, the said Decree and Judgment has attained finality. Musunuru Gangamma is not a party to the aforesaid Suit in O.S. No.287 of 1985.
21) After completion of trial and after hearing arguments on both sides, the trial Court decreed O.S. No. 80 of 1985, O.S. No. 342 of 1986 filed by Patchava Anasuya and her husband and the Suit filed by Musunuru Gangamma in O.S. No. 266 of 1983 was dismissed by the trial Court.
22) Heard Sri. P. Gopal Das, learned Counsel for the Appellant and Sri. K.V. Vijay Kumar, learned Counsel for the Respondents.
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23) The learned Counsel for the Appellant in all the three Appeals would contend that, Musunuru Gangamma i.e., the Plaintiff in O.S. No. 266 of 1983 i.e., the 2nd Defendant in O.S. No. 80 of 1985 is having valid title in Item No. 1 of plaint "A" schedule property and she got the same from her husband [Musunuru Venkatanarayana] through a registered Gift Deed [Ex.B4] and her husband acquired the same from his wife by way of a registered Will under Ex.B5. He would further contend that Ex.A1 is an unregistered Will and it is a fabricated one and, therefore, he would contend that the Appeals filed by Musunuru Gangamma may be allowed.
24) Per contra, Sri. K.V. Vijay Kumar, learned Counsel for the Respondents, would contend that the trial Court on considering the entire material on record has rightly decreed O.S. No. 80 of 1985 and O.S. No. 342 of 1986 and dismissed O.S. No. 266 of 1983 and there are no merits in all the three appeals.
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25) Having regard to the pleadings in all the three Suits and the findings recorded by the trial Court and in the light of rival contentions and submissions made by either side before this Court, the following points would arise for determination:
(I) Whether the Will, dated 12.05.1976 [Ex.B5], is true, valid and binding on the parties in all the three Suits? (II) Whether the Ex.A1 - Will, dated 14.06.1976, is true, valid and binding on the parties in all the three Suits? (III) Whether the Plaintiff in O.S. No. 266 of 1983 -
Musunuru Gangamma proved her right and title in Item No. 1 of plaint "A" schedule property and so also past and future maintenance @ Rs.500/- per month, as prayed for, from the 1st Defendant?
(IV) Whether the 1st Plaintiff - Patchava Anasuya in O.S. No.80 of 1985 is having right and title in Item Nos. 1, 3(b) and ½ of 3(a) of the plaint schedule property and so also consequential relief of permanent injunction, as prayed for in the plaint?
(V) Whether the Appellant/2nd Defendant - Musunuru Gangamma is liable to pay suit claim in O.S. No. 342 of 1986?
(VI) To what relief?
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26) Point No. (I) - Whether the Will, dated 12.05.1976 [Ex.B5], is true, valid and binding on the parties in all the three Suits?
(a) The contention of the 2nd Defendant - Musunuru Gangamma is that, her husband got Item No. 1(a) of plaint schedule property by virtue of Ex.B5 - registered Will said to have been executed Bhramaramba on 12.05.1976 in the hospital while she was on a bed. The contention of the learned Counsel for the Respondents/Plaintiffs is that, the said Ex.B5 - registered Will is not a genuine document. Ex.B5 - registered Will is disputed by either side. Therefore, a duty casts on the propounder of the Will to prove Ex.B5 as required under Section 68 and 69 of the Indian Evidence Act. According to Musunuru Gangamma, all the attesters and scribe are died. Admittedly, she is not having knowledge about Ex.B5 because by the time of execution of alleged Ex.B5, she was not married to the 25 A.S. No. 1191 of 1999 1st Defendant and question of expecting her presence at the time of alleged execution of Ex.B5 - Will does not arise. The Testatrix - Bhramaramba only has one daughter by that time, by name, Patchava Anasuya. The said property is self-acquired property of Bhramaramba by the time of alleged Ex.B5 and the daughter of Bhramaramba i.e., Patchava Anasuya was not present at that time. An inch of property is not given in Ex.B5 to her sole daughter by the testatrix. Ex.B5 - testament completely excluded Patchava Anasuya from an inch of property. There is no explanation in ExB5 why the daughter was excluded to give an inch of property and there is no attestation in Ex.B5 of her cousins or son-in- law of Bhramaramba, who were attending her at the hospital.
(b) As stated supra, Patchava Anasuya is the only daughter of the Bhramaramba and is not having any sons. The 1st Defendant is none other than the father of Patchava 26 A.S. No. 1191 of 1999 Anasuya in all the aforesaid three Suits. The 1st Defendant remained set ex parte. As stated supra, the Suits are instituted in the year 1983 and 1985 respectively. The 1st Defendant died in the year 1996, during the pendency of the Suits. Therefore, certainly the duty casts on Musunuru Gangamma to disprove the suspicious circumstances surrounding on execution of Ex.B5 - Will.
(c) The fact remains that the husband of Musunuru Gangamma is alive by the date of filing of the Suit itself in the year 1983. In-fact, a Suit is also filed by Musunuru Gangamma against her husband also and the husband of Musunuru Gangamma, by name, Musunuru Venkatanarayana died in the year 1996 during the pendency of the Suit. As stated supra, the Suit is instituted by Musunuru Gangamma in the year 1983, therefore the 1st Defendant is the best person to speak about the Will. The 2nd Defendant failed to 27 A.S. No. 1191 of 1999 examine the 1st Defendant or at-least ought to have taken steps to summon the 1st Defendant in the present Suit. But she failed to do so. The own admissions of Musunuru Gangamma is that, she is staying with her parents since 1982 onwards at her parents house and she is not residing with her husband from 1982 onwards. As stated supra, in the year 1983 itself, the said Musunuru Gangamma filed a suit against her husband and daughter of 1st Defendant for claiming declaration of title in Item No. 1 of plaint "A" schedule property.
(d) The case of Patchava Anasuya is that, she is the only daughter of Bhramaramba. Her marriage with Patchava Narasimha Rao was performed by her parents and she is living with her husband at Vijayawada. It is not in dispute by both the sides that in the year 1976 Bhramaramba fell and broke her thigh bone, she was treated in the hospital at Vijayawada and daughter of 28 A.S. No. 1191 of 1999 Bhramaramba and her son-in-law frequently attended her in the hospital. It is not in dispute by either side that, prior to Bhramaramba suffered fracture injuries i.e., prior to bedridden, she sold Ac.3.00 cents of land by way of an agreement of sale to one Javvadi Lakshmi of her village, at that time, the husband of Bhramaramba was attending her in the hospital, he pressed the said Bhramaramba to execute a power of attorney in his favour to enable him to complete the sale deed as the said Lakshmi was pressurizing him due to ill-health of Bhramaramba. The 1st Defendant brought the Sub-Registrar to the hospital on 12.05.1976 and got executed the power of attorney. The contention of Pachava Anasuya is that, by that time, the thumb marks of Bhramaramba was obtained on papers on the pretext of executing the said power of attorney. It is not in dispute that Bhramaramba is illiterate and signatory. Admittedly, the testatrix died subsequent to one month of execution of Ex.B5 - Will. If the attesters and scribe is 29 A.S. No. 1191 of 1999 not alive, it must be proved through family members of attesters or scribe, who are having acquaintance with the handwriting of attesters or scribe, but the Musunuru Gangamma failed to prove it by taking steps to examine them as witnesses before the Court.
(e) As stated supra, the only daughter of the testatrix is strongly disputing the execution of Ex.B5 - Will. Therefore, a duty casts upon the propounder of Will to prove the Ex.B5. As stated supra, there are several suspicious circumstances surrounding the execution of alleged Ex.B5 - Will, but Musunuru Gangamma failed to prove the Ex.B5 - Will. The fact remains that, Musunuru Gangamma is claiming right and title in Item No. 1 of plaint "A" schedule property. Therefore, the burden is on her to prove her right and title in Item No. 1 of plaint "A" schedule property by producing oral or documentary evidence. The law is well settled that, even if it is a registered Will, it cannot be accepted as a valid. 30 A.S. No. 1191 of 1999 Natural heir i.e., only the daughter of testatrix is alive by the date of alleged Ex.B5 and the testatrix and her husband is having affection on her and have no disputes, in such a case, at-least some explanation has to be given in the alleged Ex.B5 - Will why natural heir was not given an inch of property.
(f) As stated supra, the duty is casts upon the propounder of Will to disprove the aforesaid suspicious circumstances surrounding the Will, otherwise it is not a valid Will. But failed to do so. The DW1 is not having any personal knowledge about the said Will, therefore, Musunuru Gangamma/Plaintiff in O.S. No.266 of 1983 i.e., the 2nd Defendant in O.S. No.80 of 1985 failed to prove Ex.B5 - Will. The trial Court by giving cogent reasons held in its judgment that the Plaintiff in O.S. No. 266 of 1983 i.e., the 2nd Defendant in O.S. No. 80 of 1985, by name, Musunuru Gangamma, failed to prove Ex.B5 - Will. I do not find any legal flaw or infirmity in 31 A.S. No. 1191 of 1999 the said finding given by the trial Court. Accordingly, point (I) is answered.
27) Point No. (II) - Whether the Ex.A1 - Will, dated 14.06.1976, is true, valid and binding on the parties in all the three Suits?
(a) The Ex.A1 - Will is unregistered Will, dated 14.06.1976. The case of the 1st Plaintiff - Patchava Anasuya in O.S. No.80 of 1985 is that, her mother executed Ex.A1 - unregistered Will, dated 14.06.1976, bequeathing Ex.A1 property in favour of her and by creating life interest in favour of her father in the house property and she has given absolute rights in other property and vested rights in the house property was also given to the Patchava Anasuya by the testatrix of the Ex.A1 - Will.
(b) In order to prove her case, the 1st Plaintiff is examined as PW1. The evidence of PW1 is that Bharamaramba is her mother, she is the only child to her parents, her mother purchased Ac.6.00 of Cents of land in 32 A.S. No. 1191 of 1999 Pedavadlapuda Village and at the time of marriage of PW1, Ac.3.00 Cents of land was gifted to her orally, prior to her mother death, her mother sustained fracture injury on her right thigh and she was admitted in a Nursing Home as an inpatient and later she was admitted to Government General Hospital, Guntur, and underwent a surgery on her leg, later, she was admitted in a Nursing Home of Dr. N. Subba Rao for a period of two (2) months, at Vijayawada. When she was in the nursing home, PW1, and her maternal uncle Anne Basavaiah were looking after her welfare. The father of PW1 used to visit her mother often and shown affection towards her. The mother of PW1 sold Acres 3.00 cents of land but sale deed was not registered but contract of sale was executed. PW1 was informed by her mother that as the purchasers of her land were pressuring for the sale deed she was asked to execute a Power of Attorney in favour of 1st Defendant to which she agreed and thereafter he got some documents with her thumb 33 A.S. No. 1191 of 1999 impression executed and registered as Power of Attorney. She further informed PW1 that the contents of documents were not read over to her though she was a signatory.
(c) PW1 further deposed that, later the neighbour of her mother, by name, Kousalyamma came from Vadlapudi to see her mother and when she questioned her about the truth or otherwise of her executing a Will in favour of PW1 father with regard to the property gifted to PW1 at the time of my marriage. She further deposed, thereupon, the mother of PW1 sent a word to another maternal uncle of PW1, by name, Anne Nagabhushanam and told him what she learnt from Kousalyamma. Thereafter, as the father of PW1 did not turn up, the said Nagabhushanam questioned the father of PW1 by visiting him and he was told by the father of PW1 that the property belongs to him as he obtained a Will. She further deposed, the said 34 A.S. No. 1191 of 1999 Nagabhushanam promised to enquire about the affair from others and later came and advised PW1 mother to execute another Will in favour of PW1 to the earlier Will obtained by father of PW1 and get superseded and the problem would be solved. She further deposed, accordingly, the mother of PW1 executed a Will in the presence of PW1, the scribe was one Gopalakrishnamurthy, he was brought by Nagabhushanam, the attestors were Chigurupati Vasudevararao and PW1's uncle Nagabhushanan. The evidence of PW1 goes to show that her mother gave instructions for drafting the Will, the mother of PW1 instructed to scribe that the remaining land of her should be given to PW1 with absolute rights after her death and that the house and site should be enjoyed by PW1 father for life interest and thereafter should be given to PW1 with absolute rights. The said Will is marked as Ex.A1, but it was not registered. She further deposed that her mother wanted to get it registered after 35 A.S. No. 1191 of 1999 she gets better, at the time of the execution of Ex. A.1, the mother of PW1 was hale and healthy except the ailment with regard to the leg and she got it executed in a sound and disposing state of mind.
(d) To prove the Ex.A1 - Will, the propounder of Will examined two attesters in Ex.A1 as PW2 and PW3. The case of Patchava Anasuya is that, the scribe is no more. The same is not disputed by the other side. Therefore, in order to prove the said Ex.A1- Will, Patchava Anasuya relied on the evidence of PW2 and PW3.
(e) PW2 deposed that, he knows PW1. He also knows the mother and father of PW1, the mother of PW1 expired about 16 or 17 years back, before her death, she executed a Will in favour of the 1st Plaintiff and he is the 1st attester to Ex-A1, the other attestor is one Anne Nagabhushanam and it was scribed by one Mullapudi Gopala Krishna Murthy. As per his evidence, in their presence, the mother of PW1 - Musunuru 36 A.S. No. 1191 of 1999 Bramarambha signed on Ex.A1, PW2, the other attestor and the scribe have seen Musunuru Bramarambha signing Ex.A1 - Will, Musunuru Bramarambha also seen the attestation of PW2 and the other attestor on Ex.A1. As per his evidence, first, the Bramarambha signed on Ex.A1 - Will and afterwards PW2 and the other attestor signed on Ex.Al as 'attestors'; lastly Gopala Krishna Murthy signed as the 'scribe' and at the time of execution of Ex.A1, Musunuru Bramaramba was in a sound and disposing state of mind, Bramaramba herself gave instructions for drafting Ex.A1 - Will. He denied that that Ex.A1 is a forged document. As per his evidence, the scribe of Ex. A1 expired nearly 10 years back.
(f) PW3 deposed that, he knows Musunuru Bhramaramba Brahmaranth, who died about 15 or 16 years ago, she was his paternal uncle's daughter, before her death, Brahmarambha executed a Will bequeathing her 37 A.S. No. 1191 of 1999 properties to her daughter Patchava Anasuya. As per his evidence, the Will was executed in the Nursing Home of Dr.N.Subbarao of Vijayawada. The scribe was one Mullapudi Gopala Krishna Murthy of Vijayawada, he is no more, PW2 was present at that time along with him i.e., the scribe, PW1 and her brother Anne China Basavaiah, Basavaiah is no more. As per his evidence, Brahmaramba gave the details of the dispositions of the Will to the scribe at that time she was in sound and disposing state of mind, she was like that till her death, she was in a sound health except the fracture of the leg, the scribe prepared a draft of the Will and read it over and thereafter fair Will was prepared, after it was read over again, the mother of PW1 approved the contents and it was handed over to her and he signed on the same. As per his evidence, after that PW3 and Ch. Vasudevarao (PW2) attested, thereafter, the scribe signed on the document. When Brahmaramba executed the Will and signed on the same, PW2 and PW3 and 38 A.S. No. 1191 of 1999 others witnessed it, she saw both PW2 and other attestors attesting the document. The evidence on record shows that Ex.A1 is the said Will and it contains the signature of Musunuri Brahmaramba and also PW3's signature and that of PW2 and the scribe, this was executed on 14.6.76 itself, after the execution of Ex.A1, she stayed there for some-time and later went to Pedavadlapudi village, after reaching her native place she died there 3 or 4 days later. In Ex.A1, there is a recital that the earlier Will shall get cancel. As per his evidence, while she was in the hospital, the neighbour from her village came and told her that her husband proclaiming in the village that he obtained Will from her, at the instance of PW3 sister, he enquired her husband in the village who gave evasive replies and thereupon at the instance of PW3 sister, he consulted Advocate who advised him that no litigation is necessary and if she execute another Will, the earlier Will, if any, will get superseded, accordingly, Ex.A1 was executed. 39 A.S. No. 1191 of 1999
He deposed that, the deceased was a signatory all through she never executed any document with her left thumb impression.
(g) The learned Counsel for the Appellant would submit that, PW2 and PW3 have not proved Ex.A1 - Will and relied on a decision Gur Charan - Plaintiff -
Appellant Vs. Ram Bharose Singh and Ors -
Defendants - Respondents1. In that decision, it was held in paragraph No. 68 as under:
"68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian registration Act, 1908, unless its execution by 1 AIR 1943 OUDH 218 40 A.S. No. 1191 of 1999 the person by whom it purports to have been executed is specifically denied."
(h) Here in the present case, to discharge her burden, the Plaintiff examined both the attesters in a Will as PW2 and PW3 and Ex.A1 - Will is proved by examining the two attesters as PW2 and PW3. As stated supra, Ex.B5 - Will is not proved by Musunuru Gangamma. Though, PW2 and PW3 were cross-examined at length, their evidence is not at all disputed on the material aspects of the case. It is not the case of the Musunuru Gangamma that she is having enmity with PW2 and PW3, due to that they deposed falsehood against her. Another significant point is, one of the attester in Ex.A1 - Will is close relative to the testatrix of Ex.A1 - Will and the scribe of the Ex.A1 - Will is no more. Therefore, the propounder of the Will proved the Will, as required under the provisions of the Indian Evidence Act.
(i) As stated supra, in lengthy cross-examination, the evidence of PW2 and PW3 is not at all disputed on the 41 A.S. No. 1191 of 1999 material aspects of the case. Nothing was elicited by the other side in cross-examination of PW2 and PW3 to disprove Ex.A1 - Will and to prove Ex.B5 - Will. The evidence of PW2 and PW3 is trustworthy and the same is well supported. The 1st Plaintiff in O.S. No.80 of 1985 Patchava Anasuya proved the execution of Ex.A1 - Will by virtue of provisions of Indian Evidence Act. PW2 and PW3 the attesters of Ex.A1 - Will asserted that they have seen the testatrix signing Ex.A1 - Will. PW3 asserted that the testatrix signed Ex.A1 - Will in his presence and other attesting witnesses also signed in his presence. PW2 also deposed the same in same lines as stated by PW3 in his evidence.
(j) The contention of the Musunuru Gangamma is that the alleged Ex.A1 - Will is not at all genuine. In order to prove the said contention, no steps are taken by Musunuru Gangamma to disprove the Ex.A1 - Will. As stated supra, even though PW2 and PW3 were cross- 42 A.S. No. 1191 of 1999 examined by the learned counsel for other side, in lengthy cross-examination their evidence is not disturbed on the material aspects of the case. The evidence of PW2 and PW3 is trustworthy. To repudiate the evidence of PW1 to PW3 and Ex.A1 - Will, no other evidence is placed by Musunuru Gangamma. Therefore, for the foregoing reasons, the Will under Ex.A1 is proved, as required under the provisions of the Indian Evidence Act. In Ex.A1- Will, there was a clear recital that by cancelling the earlier Wills the testatrix executed Ex.A1 - Will. Ex.A1 - Will is the last testament i.e., last will executed by the testatrix.
(k) For the reasons stated supra, Ex.A1 - Will is proved by Patchava Anasuya. The trial Court by assailing cogent reasons came to the aforesaid conclusion that Ex.A1 - Will is true, valid and binding on all the parties in the Suit. Therefore, I do not find any illegality in the said 43 A.S. No. 1191 of 1999 finding given by the trial Court. Accordingly, Point No.(II) is answered.
28) Point No. (III) - Whether the Plaintiff in O.S. No. 266 of 1983 - Musunuru Gangamma proved her right and title in Item No. 1 of plaint "A" schedule property and so also past and future maintenance @ Rs.500/- per month, as prayed for, from the 1st Defendant?
And
29) Point No. (IV) - Whether the 1st Plaintiff - Patchava Anasuya in O.S. No.80 of 1985 is having right and title in Item Nos. 1, 3(b) and ½ of 3(a) of the plaint schedule property and so also consequential relief of permanent injunction, as prayed for in the plaint?
30) As stated supra, even though Patchava Anasuya filed a Suit O.S. No. 287 of 1985 against the other Defendants, the said Suit was decreed by the trial Court and no appeal is pending against the said Decree and Judgment. The 1st Plaintiff - Patchava Anasuya is claiming right and title in Item 44 A.S. No. 1191 of 1999 3(b) and ½ of item 3(a) of plaint schedule property against the 1st Defendant, 2nd Defendant, 3rd Defendant and other Defendants. The other Defendants have not filed any appeal, the 2nd Defendant alone filed the appeal claiming right and title in item No. 1 of plaint "A" schedule property. The finding of the trial Court in respect of title to item No. 3(b) and ½ of item No. 3(a) of schedule property is granted by the trial Court is not challenged by any of the Defendants. Therefore, the said finding is final. There is no need to interfere with the said finding.
31) The Musunuru Gangama claimed maintenance of Rs.500/- per month towards her future and past maintenance from the 1st Defendant, the trial Court by giving cogent reasons held that she is not entitled maintenance. It is not a Suit for declaration of the validity of marriage in between the 1st Defendant and 2nd Defendant. It is not in dispute that the 1st Defendant is no more and he died during the pendency of the Suit before the trial Court. The same is 45 A.S. No. 1191 of 1999 not disputed by the other side. The learned Counsel for the Appellant did not press the maintenance aspect and he did not argue the said maintenance aspect during the course of arguments before this Court because the 1st Defendant - Musunuru Venkatanarayana is no more and he died during the pendency of the Suit itself. The learned Counsel for the Appellant pressed the aspect of right and title in Item No. 1(a) of the plaint schedule property only. Therefore, the subject matter to be decided in the present appeal is whether Musunuru Gangamma is having right and title in Item No.1(a) of the plaint schedule property.
32) The contention of the Appellant is that, she got vested remainder right in item No. 1(a) of the plaint schedule property by virtue of registered Gift Deed. Ex.B4 - Gift Deed is said to have been executed by Musunuru Venkatanarayana. Ex.B4 recitals goes to show that the donor i.e., the 1st Defendant retained life interest in Ex.B4 - Gift Deed property and vested remainder to done - the 2nd Defendant. The 46 A.S. No. 1191 of 1999 alleged Gift Deed was executed in the year 1981. The 1st Defendant died in the year 1996 during pendency of the Suit. It is not in dispute by Musunuru Gangamma that she is staying at her parent's house since within one year from the date of alleged Gift Deed i.e., 1982 itself.
33) The case of the Appellant is that, she is having vested remainder rights in item No. 1(a) of the plaint schedule property, since the 1st Defendant retained life interest in item No.1(a) of the plaint schedule property, she relied on Ex.B4 - Gift Deed. As per the recitals of Ex.B4 - Gift Deed, the donor retained life interest in item No. 1(a) of the plaint schedule property. The 1st Defendant admitted that, originally the property belongs to his wife [Bhramaramba]. Admittedly, the property is self-acquired property of Bhramaramba. It is not the case of the 1st Defendant that the said property is inherited by way of succession. There is a clear recital in Ex.B4 - Gift Deed that the donor got the said property by virtue of Ex.B5 - Will said to have been executed by 47 A.S. No. 1191 of 1999 Bhramaramba. This Court held, as stated supra, by giving cogent reasons that Ex.B5 - Will is not proved by the propounder of the Will. Therefore, the fact remains that Ex.B5
- Will is not proved by Musunuru Gangamma. When once Ex.B5 - Will is not proved, question of acquiring the rights by the 1st Defendant through Ex.B5 - Will does not arise. Therefore, the 1st Defendant has no right or title in Ex.B4 - Gift Deed property. When once he is not having any right and title in Ex.B4 - Gift Deed property, question of transferring vested remainder rights in Ex.B4 - Gift Deed property does not arise. As stated supra, the 1st Defendant has no right and title in Ex.B4 - Gift Deed property. Therefore, no right will transfer to the donee from donor, since donor himself is not having any right or title in the said property. As stated supra, the Suit is filed for relief of declaration of title by Musunuru Gangamma for claiming relief of declaration of title in Item No. 1(a) of plaint schedule property. Therefore, the burden is on her to prove the right and title of donor in the said property. But she failed to do so. When once the donor is not 48 A.S. No. 1191 of 1999 having any rights in the said property, transfer of right in the said property through Ex.B4 - Gift Deed does not arise.
34) The learned Counsel for the Appellant relied on a decision Duddumpudi Venkatarayudu Vs. Duddumpudi Rajagopal alias Tatabbai and another 2. In the said decision, it was held in paragraph No. 35 as under:
"..........A transfer through gift becomes complete, only when it is made by the donor and accepted by the donee. If what is gifted is an item of immovable property, acceptance can be discerned from the act of delivery of possession. In case, the property is in possession of a tenant, the delivery can be affected through adornment of tenancy. If the donor and donee reside in the gifted premises, no independent act of delivery possession becomes necessary. Where, however, the property is in possession of a different individual and no specific acts of bringing the possession under the control of donee are taken, the effectiveness of acceptance of the gift suffers a dent.' 2 2012 (2) alt 421 (S.B.) 49 A.S. No. 1191 of 1999
35) The learned Counsel for the Appellant placed another reliance in Julakanti Krishnamurthi and others Appellants Vs. Appalarajugari Venkata Ramanaiah Respondent3. In the said decision, it was held as under:
"When the instrument of gift has been handed by the donor to the done and accepted by them, the former has done everything in his power to complete the donation and to make it effective. Registration does not depend upon his consent but is the act of an officer appointed by law for the purpose, who if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it if it is presented by a person having the necessary interest within the prescribed period. Neither death, nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.'
36) Here, in the present case, the donor has no right or title in item No. 1(a) of the plaint schedule property and when once the donor is not having any right in the said property, question of transferring rights by way of gift deed does not arise.3
AIR 1958 Andhra Pradesh 213 50 A.S. No. 1191 of 1999
37) The learned Counsel for the Appellant placed reliance on another decision reported in Smt. Nur Bhanu and Others Vs. Abdul Amin Bhuinya and Others4. The ratio laid down in the said decision is, suit for cancellation of gift deed has to be filed within three years from the date of registration of Gift Deed. Here, the Suit is not filed for cancelation of gift settlement deed.
38) The learned Counsel for the Appellant also placed reliance in Dwarampudi Tulasamma (died) per L.Rs. Vs. Nallamilli Atchireddy and others5. The ratio laid down in the said decision is, once a gift deed is executed, it has to be cancelled through court of law but not by way of executing a registered document.
39) The learned Counsel for the Appellant relied on M. Venkatasubbaiah Appellant Vs. M. Subbamma and other 4 AIR 2006 Gauhati 27 5 2011 (1) ALT 70 51 A.S. No. 1191 of 1999 Respondents6. The learned Counsel for the Appellant also placed reliance in Kamalakanta Mohapatra and Ors. Vs. Pratap Chandra Mohapatra and Ors7. In the said decision, it was held in paragraph No. 11 as under:
"Mr. Mukherji, learned senior Counsel for the appellants, thereafter contended that the gift deed (Ext.A) having been cancelled, the appellate Court should have discarded it. Section 126 of the Transfer of Property Act creates an embargo and it is clear that a deed of gift once executed and registered cannot be revoked, unless the mandatory requirements of the said section are fulfilled. That apart as would be evident from the pleadings and evidence, cancellation of the deed has not been proved in the case in hand."
40) Here in the present case, the ratio laid down in the said decision is not in dispute. The law is well settled, gift deed has to be cancelled through court of law only but not by way of executing any cancellation deed by the donor. 6 AIR 1956 Andhra 195 7 AIR 2010 Orissa 13 52 A.S. No. 1191 of 1999
41) The learned Counsel for the Appellant placed another reliance on Fazalullah Khan Vs. State of A.P. and others8 and so also other case laws relating to cancellation of gift settlement deed and so also validity of the gift deed. As stated supra, in the present case, when once the executant of gift deed is not having any right in Ex.B4 - Gift Deed property, the decisions relied on by the learned Counsel for the Appellant is nowhere helpful to prove the case of the Appellant.
42) The learned Counsel for the Respondents would submit that, Ex.B4 - Gift Deed was revoked by the 1st Defendant by way of executing a Revocation Deed [Ex.A6] by giving reasons. The recitals in Ex.A6 are the donee married the donor without informing her earlier marriage and he questioned the father of the donee, he accepted the same and when he questioned the donee, the donee kept quiet without giving any reply, therefore, he has cancelled the vested remainder rights said 8 AIR 2012 Andhra Pradesh 163 53 A.S. No. 1191 of 1999 to have been given in Ex.B4 - Gift Settlement Deed. The Revocation Deed [Ex.A6] was said to have been executed on 16.09.1982 and the executant of Revocation Deed i.e., the donor of Ex.B4 - Gift Deed is alive from 1982 to 1996 and he died during the pendency of the Suit. It is not disputed by Musunuru Gangamma that she is not residing with her husband since 1982 onwards and she is staying at her parents house. The date of Ex.B4 - Gift Deed is 19.09.1981. The date of Revocation Deed is 16.09.1982. The time gap in between Ex.B4 - Gift Deed and Ex.A6 - Revocation Deed is approximately one year. The case of the donor is that the 2nd Defendant left the house in his absence with her belongings and gold ornaments of 15 sovereigns and he given up the vested remainder rights to the 2nd Defendant. As per the contention of both the parties, the 1st Defendant is aged about 70 years by the date of alleged marriage and the 2nd Defendant is aged about 20 years. Moreover, the law is well settled that 'gift' has to be cancelled through court of law only but not by way of executing a registered cancellation deed. As 54 A.S. No. 1191 of 1999 stated supra, the donor has no right in Ex.B4 - Gift Deed property, therefore, the question of transferring the vested remainder rights by way of Ex.B4 - Gift Deed does not arise. Therefore, the Musunuru Gangamma is not having any right in Item No. 19(a) of the plaint schedule property. For the foregoing reasons, the 2nd Defendant - Musunuru Gangamma is not having any right or title in item No. 1(a) of the plaint schedule property.
43) The learned Counsel for the Appellant would submit that, the Suit vide O.S. No. 80 of 1985 filed by Patchava Anasuya for declaration is barred by doctrine of res judicata and relied on a decision in Juttika Suryanarayana Vs. Sri Madhavaswamivari Temple rep., by its Manager, Tokalapudi, Bhimavaram Taluk, W.G. District9. In the present case, Patchava Anasuya filed O.P. No. 6 of 1982, which was withdrawn by her. The said O.P. No. 6 of 1982 is not finally decided by the Court.
9 2010 (4) ALT 754 (S.B.) 55 A.S. No. 1191 of 1999
44) The learned Counsel for the Appellant would submit that, the Suit filed for declaration of title is barred by limitation and placed reliance on Tumu Srihari Vs. Thumu Padmamma and others10. In the present case, the 1st Plaintiff - Patchava Anasuya filed O.P. No. 6 of 1982 on the file of Sub-Court, Guntur District, on 07.12.1981 for declaration of her title to the schedule item Nos. 1, 3, 4 and house property. The case of the Patchava Anasuya is the elders intervened and adjusted the affairs and after the 1st Defendant agreeing to convey the whole property to the daughter [the 1st Plaintiff] as though he gave it to avoid the indignity of his being found to have obtained Ex.B4 - Will dated 12.05.1976 by fraud, she was made to agree as anyhow she was getting the whole property and the 1st Defendant executed the gift settlement deeds in favour of his daughter [the 1st Plaintiff], therefore, the said O.P. No. 6 of 1982 was withdrawn by the Plaintiff - Patchava Anasuya. She further pleaded that, after sometime, her father was won over by 10 2011 (3) ALT 70 (D.B.) 56 A.S. No. 1191 of 1999 Musunuru Gangamma and that the Plaintiff has to file O.S. No. 80 of 1985 for declaration of title and permanent injunction. As stated supra, the above O.P. No. 6 of 1982 is dismissed as withdrawn on 15.05.1982. The present suit is filed in the year 1985. Therefore, the Suit for declaration of title filed by Patchava Anasuya is not barred by law of limitation.
45) The learned Counsel for the Respondents relied on a decision in Durga Prasad Vs. Devi Charan and Others11. Here in the present case, the propounder of Ex.A1 proved Ex.A1 and propounder of Ex.B5 - Will not proved the Ex.B5. The case of the 1st Plaintiff - Patchava Anasuya is that, she is having right and title in item No. 1(a) of the plaint schedule property by virtue of Ex.A1 - Will said to have been executed by her mother. As stated supra, the said Ex.A1 - Will is proved. It is not dispute by both the sides that the said property is self-acquired property of mother of Patchava 11 AIR 1979 SC 145 57 A.S. No. 1191 of 1999 Anasuya, by name, Bhramaramba. It was held that, Ex.A1 - Will is proved by the 1st Plaintiff - Patchava Anasuya. The right and title of Bhramaramba is not at all disputed by both sides, since Bhramaramba executed Ex.A1 - Will in favour of her only daughter i.e. Patchava Anasuya. The said Ex.A1- Will is proved. Therefore, the 1st Plaintiff in O.S. No. 80 of 1985 Patchava Anasuya i.e., the 2nd Defendant in O.S. No. 266 of 1983 is having valid right and title in item No. 1(a) of plaint schedule property. The trial Court by assailing cogent reasons came to the aforesaid conclusion and rightly decreed Suit O.S. No. 80 of 1985 and dismissed the Suit O.S. No.266 of 1983. Therefore, the Appeal Suit No. 1191 of 1999 and T.R.A.S. No.405 of 2003 have to be dismissed. For the foregoing reasons point Nos. (III) and (IV) are answered in favour of the 1st Plaintiff - Patchava Anasuya and against Musunuru Gangamma.
58A.S. No. 1191 of 1999
46) Point No. (V) - Whether the Appellant/2nd Defendant - Musunuru Gangamma is liable to pay suit claim in O.S. No.342 of 1986? (Tr.A.S. No. 1112 of 2003).
(a) The Suit O.S. No. 342 of 1986 is filed by Patchava Anasuya and her husband Patchava Narasimha Rao for claiming recovery of Rs.20,500/- towards damages for value of crop amount against the 1st to 3rd Defendants. The 1st Defendant is none other than father of 1st Plaintiff. The 3rd Defendant is the alleged tenant. The decree was passed against all the Defendants. No appeal is filed by the 1st and 3rd Defendants. They remained ex parte before the trial Court in the Suit proceedings. The present appeal is filed by the 2nd Defendant alone.
47) The case of the Plaintiffs, in the Suit, is that the Suit schedule property originally belongs to late Bhramaramba, who was the wife of the 1st Defendant and mother of the 1st Plaintiff and mother-in-law of the 2nd Plaintiff and the 1st Plaintiff is their only child and she was married to the 2nd 59 A.S. No. 1191 of 1999 Plaintiff. The Plaintiffs further pleaded that, Bhramaramba was admitted for treatment by the Plaintiffs in a Nursing Home of Dr. N. Subba Rao, while she was there, the 1st Defendant was visiting her often pretending all affection, which the said Bhramaramba believed and he then represented that he will look after the property and for that a power of attorney has to be executed. The averments in the plaint further goes to show that, the 1st Defendant deceived his wife - Bhramaramba and obtained a thumb impression of Bhramaramba not only on the power of attorney, but also on a Will and got both of them registered on the same day on 14.05.1976 by getting the Sub-Registrar to the Nursing Home, by that time Bhramaramba was bed ridden and the 1 st Defendant fraudulently obtained the Will, dated 12.05.1976 and on knowing the same through her relatives, the Bhramaramba executed another Will on 14.06.1976 in a sound and disposing state of mind superseding all the earlier wills. The plaint averments itself goes to show that, on 14.04.1985, the 1st and 3rd Defendants stolen away the maize 60 A.S. No. 1191 of 1999 crop worth Rs.18,000/- for which the Plaintiffs gave a police report and to get over the same, the Defendants in collusion brought into existence some false receipts with anti-dates by the 1st Defendant as though the 3rd Defendant was tenant and got A.T.C. No. 20 of 1985 before the District Munisf Court, Mangalagiri against the 1st and 2nd Defendants and all the Plaintiffs and obtained temporary injunction in I.A. No. 783 of 1985 on 16.09.1985. The plaint averments further go to show that the 3rd Defendant trespassed into the land and made violence and the 1st and 3rd Defendants stolen away the maize crop worth of Rs.1,500/- and later the 1st and 3rd Defendants also took away Jonna crop worth of Rs.1,000/- raised by the Plaintiffs.
48) It is not the case of the Plaintiffs that the 2nd Defendant/Appellant herein stolen away the crop. Admittedly, no allegations are levelled against the 2nd Defendant about theft of crop. In-fact, there is no evidence on record to show that the Appellant/2nd Defendant herein stolen away the crop. 61 A.S. No. 1191 of 1999 As per the case of the 1st Plaintiff, the Appellant is not in possession of an inch of property of her father. In such a case, the Appellant is not liable to pay suit claim in O.S. No.342 of 1986. The 1st and 3rd Defendants remained ex parte in the suit proceedings. As stated supra, no allegations are levelled against the Appellant for the alleged theft of crop. The case of the Plaintiffs is that the Appellant is not in possession of an inch of property of the father of the 1st Plaintiff. The contention of the 1st Plaintiff is that, she got entire property by virtue of Ex.A1 - Will executed by her mother. The case of the Plaintiffs is that, the 1st and 3rd Defendants stolen away the crop. Therefore, in such a case, the Appellant/2nd Defendant is not liable to pay the suit claim in O.S. No.342 of 1986. Unfortunately, the trial Court has not considered the said aspect and decreed the Suit against the Appellant/2nd Defendant along with other Defendants. Therefore, for the foregoing reasons, the Appellant/2nd Defendant is not liable to pay the suit claim in O.S. No. 342 of 1986. Therefore, the finding of the trial Court in fixing the liability on the 62 A.S. No. 1191 of 1999 Appellant/2nd Defendant is liable to be set-aside. The Tr.A.S. No.1112 of 2003 filed by the Appellant/2nd Defendant is liable to be allowed. Accordingly, the point is answered.
49) Point No. (VI) - To what relief. In the result, A.S. No.1191 of 1999 and Tr.A.S. No. 405 of 2003 are dismissed and Tr.A.S. No. 1112 of 2003 is allowed. All the parties shall bear their own costs in all the three appeals.
50) As a sequel, miscellaneous petitions, if any, pending in the Appeals shall stand closed.
_____________________________ V.GOPALA KRISHNA RAO, J Date: 17.11.2023 Sm..
63A.S. No. 1191 of 1999 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO A.S. NO. 1191 of 1999 Tr.A.S. NO. 405 of 2003 Tr.A.S. NO. 1112 of 2003 Date: 17.11.2023 sm