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2011 DIGILAW 1018 (AP)

Pragada Satyarao v. Nallamilli Gurunadharao

2011-11-17

L.NARASIMHA REDDY

body2011
JUDGMENT : The plaintiffs in O.S. No.23 of 1995 on the file of the Senior Civil Judge, Rajam, are the appellants. The suit was filed for the relief of declaration of title and perpetual injunction or in the alternative for recovery of possession of the suit A, B, C and D schedule properties. The relevant facts pleaded by them are as under: One Pragada Ramamurthy had one son, the appellant and three daughters, by names, Kanakaratnam, mother of 1st respondent, Venkata Narayanamma and Saraswati, respondents 4 and 5 herein. He died on 25-12-1969 leaving behind his wife and children. The appellants 3 and 4 and respondent No.3 are sons of the 1st appellant. It was pleaded that Ramamurthy executed a Will on 10-12-1969, Ex.A-3, bequeathing the suit schedule property in favour of the appellants 3 and 4. The suit was resisted mainly by the deceased 1st respondent. He pleaded that his father Apparao was brought in as illetum by Ramamurthy and throughout his lifetime, he was in possession and administration of the suit schedule properties. Alternatively, he pleaded that his father, and after his death, himself, perfected title through adverse possession vis-à-vis the plaint-A schedule properties. The trial Court disbelieved the Will pleaded by the appellants and theory of illetum by the 1st respondent. It ultimately passed a preliminary decree directing that the 1st appellant and respondents 1, 4 and 5 are entitled to 1/4th share of the suit schedule properties. A.S. No.38 of 2001 filed by the appellants herein in the Court of the II Additional District Judge, (FTC), Srikakulam, was dismissed. Hence, this Second Appeal. 2. Heard Sri M.V.S. Suresh Kumar, learned counsel for the appellants and Sri K.V. Subrahmanya Narsu, learned counsel for the respondents. 3. The dispute in the suit is in relation to the properties left by late Ramamurthy. While the 1st appellant is the only son of Ramamurthy, one of his daughters, by name, Kanakaratnam died and her estate is represented by respondents 1and 2; respondents 4 and 5 are his other daughters. In the normal course, the property has to devolve by way of succession on Class-I heirs or the respective branches of such heirs. The appellants wanted to scuttle the devolution through succession by pleading a Will, marked as Ex.A-3. The trial Court and the lower appellate Court disbelieved the Will. In the normal course, the property has to devolve by way of succession on Class-I heirs or the respective branches of such heirs. The appellants wanted to scuttle the devolution through succession by pleading a Will, marked as Ex.A-3. The trial Court and the lower appellate Court disbelieved the Will. The appellants are not able to convince this Court to take a different view. 4. Even if Ex.A-3 is to be ignored, the successors would not get any relief, in case the plea of the 1st respondent as to adverse possession is accepted. That plea, however, is totally untenable. Whenever an outsider is brought into a family, as illatum, he would, at the most, acquire rights on par with a coparcener. The question of his exercising rights over the coparcenery properties, adverse the interest of the other coparceners does not arise. The trial Court and the lower appellate Court have taken the correct view in rejecting the plea. Once these obstructions are removed, the succession, as provided for in law, must take place. That is what the Courts did and no other alternative is possible. 5. The appellants pleaded that the respondents 4 and 5 have relinquished their rights in their favour. That, however, is a matter, which needs to be taken into account at the stage of final decree proceedings. So is the case with the sale of some items of machinery by the legal representatives of the 1st respondent. In case, they have appropriated to themselves, any proceeds of the machinery, the trial Court has to take that into account at the time of allocating the shares. 6. The Second Appeal is, accordingly, dismissed. There shall be no order as to costs.