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2024 DIGILAW 360 (AP)

Racha Venka Reddy v. Racha Sreelakshmamma

2024-03-15

V.GOPALA KRISHNA RAO

body2024
JUDGMENT V. Gopala Krishna Rao, J. - Aggrieved by the Decree and Judgment, dated 10.01.2003, passed in O.S.No.43 of 1997, on the file of the Principal Senior Civil Judge, Ongole, (hereinafter referred to as 'trial Court'), this instant appeal is preferred by defendant Nos.1, 6 to 8 against the plaintiff and other defendants challenging the Decree and Judgment passed by the trial Court. 2. Both the parties in the Appeal will be referred to as they are arrayed in the suit. 3. The plaintiff in O.S.No.43 of 1997 filed the suit against the defendants for claiming the relief of partition of the plaint schedule property into four (4) equal shares and to allot one such share to the plaintiff and for profits. 4. The brief averments of the plaint, filed by the plaintiff in O.S.No.43 of 1997, are as follows:- The plaintiff is the wife of one Sundara Rami Reddy, who is the brother of 1st defendant; 2nd defendant is the mother of the plaintiff's husband and D1 and 3rd defendant is the son of 1st defendant and 4th defendant is the purchaser of the property from the plaintiff. The plaint schedule property originally belongs to Venkata Subba Reddy who died intestate, long ago and he left behind the plaintiff, his wife 2nd defendant, 1st defendant and plaintiff's husband who are his sons. During the life time of Venkata Subba Reddy, he managed and enjoyed the family properties as a manager; after his death, his sons enjoyed the schedule properties of Sundara Rami Reddy. The said Sundara Rami Reddy died leaving behind his wife i.e., the plaintiff herein and the 1st defendant assumed the management of joint family properties. She demanded the defendants 1 and 2 for partition of the properties and put her in separate possession of her share. The Will referred to in the reply notice of D1 and D2 is not a genuine one and she succeeded to the share of Ganga Rami Reddy as per the Hindu Succession Act, 1956. 5. The plaintiff further pleaded that she sold item Nos.20 to 22 of the schedule property to the 4th defendant. The Will referred to in the reply notice of D1 and D2 is not a genuine one and she succeeded to the share of Ganga Rami Reddy as per the Hindu Succession Act, 1956. 5. The plaintiff further pleaded that she sold item Nos.20 to 22 of the schedule property to the 4th defendant. D1 and D2 filed O.S.No.92 of 1994 on the file of the District Munsif Court, Ongole, against her and the 4th defendant and one Vijaya Lakshmi, foster daughter of the plaintiff and an interim injunction was also passed against them and the suit is still pending for disposal. The 2nd defendant, who is mother of 1st defendant and plaintiff's husband are entitled to a share in the properties of plaintiff's husband. Thus, the plaintiff and second defendant are entitled to half share with full and absolute rights. As the defendants are not cooperating, she filed the suit for partition of the plaint schedule property into four (4) equal shares and for allotment of one such share to her. 6. The defendant Nos.2 and 3 died during the pendency of the suit and the 4th defendant remained ex parte. 7. The 1st defendant filed written statement which was adopted by the D2 and D3. They admitted the relationship between the parties, but denied the material allegations in the plaint and pleaded that the joint family properties of Venkata Subba Reddy were partitioned by his two sons at about 30 years ago during the life time of Venkata Subba Reddy. The 1st defendant and his brother Subdrarami Reddy took half share each and on 30.05.1974, the first defendant and his brother Sundararami Reddy purchased item Nos.20 to 22 jointly in the name of their father. D1 also got service connection in his name for running electric motor for the use of the said item Nos.20 to 22 of the schedule property. The defendants further pleaded that Sundara Rami Reddy got kidney trouble in the year 1989 and his health was deteriorated and he executed an unregistered Will in the morning hours on 22.04.1990 in a sound and disposing state of mind, wherein he bequeathed the residential house bearing No.2-15 in Madanur village, to his wife. The defendants further pleaded that Sundara Rami Reddy got kidney trouble in the year 1989 and his health was deteriorated and he executed an unregistered Will in the morning hours on 22.04.1990 in a sound and disposing state of mind, wherein he bequeathed the residential house bearing No.2-15 in Madanur village, to his wife. The plaintiff herein with, absolute rights created life estate in her favour for an extent of Ac.3.70 cents of land with vested reminder to one Baddela Vijaya Lakshmi alias Jhansi Lakshmi, who is the foster daughter of Sundara Rami Reddy and plaintiff and also jewelry was given to her. After the death of Sundara Rami Reddy, the plaintiff has been collecting the monies and enjoying the other properties bequeathed under the Will. 8. The material on record reveals that the appellants herein also filed another suit in O.S.No.139 of 2000, for claiming the relief of declaration of the half share in the plaint schedule property and for consequential relief of permanent injunction against the defendants. In fact, both the suits for partition and suit for declaration i.e., O.S.No.139 of 2000 were clubbed by the trial Court and Common Judgment is being pronounced by the learned trial Judge on 10.01.2003. 9. Learned counsel for the appellants herein fairly conceded that the suit filed by the appellants vide O.S.No.139 of 2000, was dismissed by the trial Judge, which is filed for declaration of their rights to the extent of half of the plaint schedule property and no appeal is filed against the said Decree and Judgment. 10. During the course of trial, after completion of trial on hearing of arguments of both the learned counsel, learned trial Judge decreed the suit in O.S.No.43 of 1997 by passing a preliminary Decree of partition of plaint schedule property by dividing into four (4) equal shares and to allot of one such share to the plaintiff herein. 11. Aggrieved against the said Decree and Judgment, the defendant No.1 and D6 to D8 filed the instant appeal. 12. Heard Sri Y. Chakravarthi, learned counsel representing on behalf of Sri Addepalli Suryanarayana, learned counsel for the appellants. No representation on behalf of the respondents. 13. Now the point for determination is:- 'Whether the Decree and Judgment passed by the trial Court in O.S.No.43 of 1997 needs any interference? If so, to what extent'? POINT:- 14. 12. Heard Sri Y. Chakravarthi, learned counsel representing on behalf of Sri Addepalli Suryanarayana, learned counsel for the appellants. No representation on behalf of the respondents. 13. Now the point for determination is:- 'Whether the Decree and Judgment passed by the trial Court in O.S.No.43 of 1997 needs any interference? If so, to what extent'? POINT:- 14. The case of the plaintiff is the plaint schedule property is ancestral property and her husband was having 1/4th share in the plaint schedule property; after the death of her husband, herself and her mother-in-law who is the 2nd defendant herein, succeeded the share of her husband and thus, she is entitled to 1/4th share in the plaint schedule property and sought for division. 15. The contention of the appellants is that the husband of the plaintiff executed an unregistered Will dated 22.04.1990 under which, he settled some of the properties in favour of the plaintiff and remaining properties are bequeathed to D3, who is the son of 1st defendant with absolute rights. The said alleged Will is filed and marked as Ex.B1. The said alleged Will is an un-registered Will dated 22.04.1990. As per the case of the appellants, the Sundara Rami Reddy executed a Will in the morning hours and he died in the evening hours on the same day, to prove the alleged Will Ex.B1, the profounder of the Will examined the attesters of the Will as DWs.2 to 4 and scribe of the Ex.B1 alleged Will is examined as D.W5. 16. On appreciation of entire evidence on record, the trial Judge came to a conclusion that the said Will is a forged and not a genuine one. Accordingly, the learned trial Judge dismissed the suit vide O.S.No.139 of 2000, which is filed by the plaintiff seeking for the relief of Declaration. As stated supra, no appeal is preferred by the defendants who are the appellants herein, challenging the said Decree and Judgment passed in O.S.No.139 of 2000. 17. Admittedly, the alleged Will Ex.B1 is not at all proved by its profounder of the Will. The appellants herein claimed the relief of declaration of title basing on the alleged Ex.B1 Will and they are claiming half share in the plaint schedule property. The said suit in O.S.No.139 of 2000 was dismissed by the trial Judge. No appeal is preferred against the said Decree and Judgment. The appellants herein claimed the relief of declaration of title basing on the alleged Ex.B1 Will and they are claiming half share in the plaint schedule property. The said suit in O.S.No.139 of 2000 was dismissed by the trial Judge. No appeal is preferred against the said Decree and Judgment. No evidence is put-forth by the appellants to prove the alleged Ex.B1 Will. On appreciation of entire evidence on record, the trial Judge rightly came to a conclusion that the Ex.B1 Will is not at all a genuine one. 18. In order to prove the case of the plaintiff, the plaintiff relied on her selftestimony as P.W.1. As per her evidence, she is living in a rented house for want of accommodation, later her husband purchased a house from V Subba Reddy. She further deposed that prior to death of her husband i.e., 20 days prior to her husband's death, her husband admitted in the Hospital at Madanur village for his Kidney disease and prior to that he took treatment at Tangutur and her husband died on 22.04.1990 in the night hours. As per the evidence of P.W2, Sundara Rami Reddy took treatment in the hospital on the date of his death. P.W.3 is the evidence of R.M.P Doctor. He testifies that Sundara Rami Reddy was treated by him. On 22.04.1990, said Sundara Rami Reddy was taken by the plaintiff from his hospital in an unconscious stage while he was suffering from heart complaint. 19. The evidence on record clearly indicates that the husband of plaintiff died intestate and she succeeded the estate of her husband after his demise while he was in joint possession and enjoyment of the plaint schedule property along with 1st defendant. As per the evidence of P.W.1, her husband died intestate, by living herself and her mother-in-law, who is the 2nd defendant herein, succeeded the share of husband and thus, she is entitled to 1/4th share in the plaint schedule property. The evidence on record clearly supports the case of the plaintiff. 20. Per contra, even though the appellants placed the evidence of D.Ws.1 to 7, their evidence is not convincing to prove the defence put-forth by the defendants in their written statement. As stated supra, by virtue of alleged Ex.B1 unregistered Will, the appellants are claiming right in the half of the plaint schedule property. 20. Per contra, even though the appellants placed the evidence of D.Ws.1 to 7, their evidence is not convincing to prove the defence put-forth by the defendants in their written statement. As stated supra, by virtue of alleged Ex.B1 unregistered Will, the appellants are claiming right in the half of the plaint schedule property. It is not in dispute that the alleged Will, Ex.B1 is disbelieved by the trial Judge in a suit for declaration of title and the said suit was dismissed. The appellants herein did not choose to challenge the said Decree and Judgment passed by the trial Judge vide O.S.No.139 of 2000. It is not the case of the appellants that the plaintiff is not entitled to any share in the pliant schedule property. The relationship of plaintiff with deceased is not in dispute. 21. The contention of the appellants is that by virtue of Ex.B1 unregistered Will, they are entitled to half share in the plaint schedule property. As stated supra, the alleged Ex.B1 unregistered Will is not proved by the defendants. Therefore, the Decree and Judgment passed by the trial Court in O.S.No.43 of 1997 is perfectly sustainable under law and it requires no interference. 22. In the result, the Appeal Suit is dismissed confirming the Decree and Judgment, dated 10.01.2003, passed in O.S.No.43 of 1997 by the Principal Senior Civil Judge, Ongole. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.