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2024 DIGILAW 780 (AP)

G. Prakasha Rao v. Ganapa Mohinamma

2024-07-15

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. The appeal is filed against the judgment and decree dated 11-7-2001 passed by the learned Senior Civil Judge, Sompeta, Srikakulam District, in O.S. No. 59 of 1995. The appellants are defendants 1 to 3 and the respondents are plaintiffs 1 and 2 in the said suit. 2. For the sake of convenience, the parties herein will be referred to as arrayed before the trial Court. 3. The case of the plaintiffs as narrated in the plaint, in brief, is as follows: (a) The suit is filed for partition of plaint A to C schedule properties into 12 equal shares and to allot 7 shares to the plaintiffs. (b) It is pleaded that the 1st defendant is the son of late Sundarayya. Late Sundarayya possessed ancestral property which he got from his father. Sundarayya died undivided in the year 1995 leaving behind him the 1st defendant (son), the 2nd defendant (wife), the 3rd defendant (daughter) and the 1st plaintiff. Due to the wedlock with the 1st defendant, the 1st plaintiff gave birth to a son by name Prasanth. He survived for 6 months and later died. Therefore, the undivided share of the deceased son Prasanth vests with the 1st plaintiff. It is further pleaded that the suit is filed for partition and for the benefit of the minor son since his father 1st defendant left and is acting detrimental to the interests. 4. Brief averments in the written statement filed by the 1st defendant, which is adopted by the defendants 2 and 3, are as follows: (a) It is contended that Prasanth is not born to the 1st defendant, therefore, the plaintiffs have no right to claim any share and they have no right to file this suit. The 1st defendant and his father late Sundarayya divided their properties on the intervention of elders during the year 1991 and are enjoying their respective shares. (b) It is further contended that Items 1 and 2 of plaint A-schedule lands are purchased by the 1st defendant under a registered sale deed dated 11-5-1994 with her own money from 3rd parties and as such these two items cannot be brought for partition. The 1st defendant and his minor son sold Item No. 3 of plaint A-schedule property to the 2nd defendant under a registered sale deed dated 22-10-1994. The 1st defendant and his minor son sold Item No. 3 of plaint A-schedule property to the 2nd defendant under a registered sale deed dated 22-10-1994. Therefore, the said property is not liable for partition. Item No. 4 of plaint A-schedule property is sold by the 1st defendant and his minor son to his sister 3rd defendant under a registered sale deed dated 26-11-1994, therefore, the said property is not liable for partition. Items 5, 6 and 7 of plaint A-schedule properties devolved upon the 1st defendant's father in partition and the plaintiffs have no right to claim those properties. Item No. 8 of plaint A-schedule property is not with the defendants. (c) It is further contended that late Sundarayya had executed a registered Will dated 09-3-1998 in respect of plaint B-schedule property western portion of the house in favour of his wife 2nd defendant. The plaintiffs have no right to claim their share. The eastern half of plaint B-schedule property is with the 1st defendant and he is residing therein. The plaint C-schedule properties are not in existence. The plaintiffs are not in joint possession. Hence, it is prayed to dismiss the suit. 5. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the 1st plaintiff has the right to represent the 2nd plaintiff and the claim for partition is in the interest of the minor? (2) Whether the 1st plaintiff had conceived any child by name Prasanth through her husband, the 1st defendant and the 1st plaintiff has any right to claim partition through the son? (3) Whether the plaintiffs 1 and 2 and the 1st defendant are members of a joint family and whether the plaintiffs 1 and 2 are entitled to any share? (4) Whether the 2nd plaintiff has any right to claim any share in the suit schedule properties? (5) Whether the suit schedule properties are the joint family properties of plaintiffs and 1st defendant? (6) Whether the partition pleaded between 1st defendant and his father late Sundarayya is true and valid? (7) Whether the items 1 and 2 of the suit A-schedule properties are the personal properties of 2nd defendant not liable for partition? (5) Whether the suit schedule properties are the joint family properties of plaintiffs and 1st defendant? (6) Whether the partition pleaded between 1st defendant and his father late Sundarayya is true and valid? (7) Whether the items 1 and 2 of the suit A-schedule properties are the personal properties of 2nd defendant not liable for partition? (8) Whether the sale of item 3 of the plaint A-schedule property by the 1st defendant and 2nd plaintiff to the 2nd defendant, under registered sale deed dated 22-10-1994 is true, valid and binding on the plaintiffs? (9) Whether the sale of item 4 of the suit A-schedule by 1st defendant and his son to the 3rd defendant under a registered sale deed dated 25-11-1994 is true, valid and binding on plaintiffs? (10) Whether the items 5, 6 and 7 of the suit A-schedule fell to the share of the 1st defendant Sundarayya in a partition with his son? (11) Whether the suit schedules are correct in their extent, survey numbers and boundaries? (12) Whether the registered Will dated 09-3-1993 executed by late Ganapa Sundarayya in favour of the 2nd defendant is true, valid and binding on plaintiffs? (13) Whether the suit C-schedule moveables are available for partition? (14) Whether the plaintiffs have a right of the suit? (15) Whether the court fee paid is correct or not? and (16) To what relief? 6. During the course of trial, on behalf of the plaintiffs, PWs. 1 to 3 are examined and Ex.A-1 is marked. On behalf of the defendants, DWs. 1 to 4 are examined and Exs.B-1 to B-6 are marked. 7. After completion of the trial and hearing the arguments of both sides, the trial Court passed preliminary decree in the suit with costs, by giving a finding that the plaintiffs 1 and 2 together will be entitled to 7/12th share, that the 2nd defendant will be entitled to 3/12th share and the 3rd defendant will be entitled to 2/12th share in A and B schedule properties, by giving liberty to the plaintiffs to file a separate petition for ascertainment of mesne profits. 8. Heard Sri K. Sai Ram Murthy, learned counsel for the appellants and Sri M.S.R. Subrahmanyam, learned counsel for the respondents, through virtual mode. 9. 8. Heard Sri K. Sai Ram Murthy, learned counsel for the appellants and Sri M.S.R. Subrahmanyam, learned counsel for the respondents, through virtual mode. 9. The learned counsel for appellants would contend that the trial Court failed to appreciate the evidence on record in a proper manner and decreed the suit and the learned trial Judge came to wrong conclusion and disbelieved the registered Will dated 09-3-1998 in respect of plaint B-schedule property and he would further contend that the appeal may be allowed by setting aside the judgment and decree passed by the learned trial Judge. 10. Per contra, the learned counsel for respondents would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge. 11. Now, the points for determination are: (1) Whether the trial Court is justified in decreeing the suit? (2) Whether the judgment and decree passed by the trial Court needs any interference? and (3) To what extent? 12. Points 1 and 2: Whether the trial Court is justified in decreeing the suit? and Whether the judgment and decree passed by the trial Court needs any interference? The case of the plaintiffs is that the 1st plaintiff is the wife of 1st defendant, the 2nd plaintiff is their son, the 2nd defendant is the mother of 1st defendant, the 3rd defendant is the sister of 1st defendant and daughter of 2nd defendant. The plaintiffs further pleaded that the 1st defendant is the son of late Sundarayya and late Sundarayya possessed ancestral property which he got from his father and Sundarayya died intestate in the year 1995 leaving behind him, 1st defendant the son, 2nd defendant the wife, 3rd defendant the daughter and the plaintiffs. The relationship, as stated supra, is not at all disputed by the defendants. 13. The relationship, as stated supra, is not at all disputed by the defendants. 13. The plaintiffs further pleaded that due to wedlock with the 1st defendant, the 1st plaintiff gave birth to a son by name Prasanth, he survived for 6 months child and later died and therefore undivided share of deceased son Prasanth vests with the 1st plaintiff and the suit is filed for partition of the plaint schedule properties and for the benefit of minor son since his father 1st defendant left and acting detrimental to the interest of the minor son i.e. the 2nd plaintiff. 14. It was pleaded by the plaintiffs that due to the wedlock, the 1st plaintiff gave birth to a son by name Prasanth through the 1st defendant and he survived for 6 months and later he died. The 1st defendant simply denied about the paternity of the son Prasanth. But, in Ex.A-1 served copy of petition in O.P. No. 5 of 1995, which is filed by the 1st defendant for divorce against the 1st plaintiff, it was categorically admitted by the 1st defendant about the birth of the 2nd son by name Prasanth to the 1st plaintiff through him and so also about the death of Prasanth. Therefore, the defence put-forth by the 1st appellant that Prasanth is not born to the 1st plaintiff through him is unbelievable. Having pleaded by the 1st appellant in the earlier proceedings i.e. in divorce proceedings that the said Prasanth is born to the 1st plaintiff through him, now the 1st appellant/1st defendant is estopped from denying the paternity of late Prasanth. 15. The plaint schedule properties consist of Items 1 to 8 of plaint A-schedule property and Item B-schedule is a house property and Item C-schedule is a movable property. It is the case of appellants that Items 1 and 2 of plaint A-schedule lands are purchased by the 1st defendant under a registered sale deed dated 11-5-1994 with her own money from 3rd parties and therefore, Items 1 and 2 of plaint A-schedule properties are not at all liable for partition. In order to prove the same, the 1st defendant examined himself as DW-1 and also relied on the registered sale deed said to have been executed on 11-5-1994 and got exhibited as Ex.A-1. In order to prove the same, the 1st defendant examined himself as DW-1 and also relied on the registered sale deed said to have been executed on 11-5-1994 and got exhibited as Ex.A-1. The learned counsel for plaintiffs would contend that Items 1 and 2 of plaint A-schedule properties were purchased from out of ancestral nucleus. Therefore, it is not the self-acquired property of the defendants. The defendants relied on the evidence of DWs. 1 to 3. It was admitted by DWs. 1 to 3 that the 2nd defendant has no independent properties of her own. Furthermore, the 2nd defendant has no independent source of income of her own. Admittedly, by the date of acquisition of Items 1 and 2 of plaint A-schedule properties, Sundarayya i.e. husband of 2nd defendant was alive and the 2nd defendant has no independent source of income of her own and it is also not in dispute that the joint family possessed landed properties Items 5 to 8 which are income yielded properties. Furthermore, the defendants failed to prove that the 2nd defendant is having capacity to earn money and the 2nd defendant is having independent source of income and the appellants failed to prove that Items 1 and 2 of plaint A-schedule properties were purchased from the own earnings of the 2nd defendant. Furthermore, the evidence on record clearly proves that by the date of acquisition of Items 1 and 2 of plaint A-schedule properties, Items 5 to 8 of plaint A-schedule properties are in the joint possession of the joint family members. It is not in dispute by the defendants that Items 5 to 8 of plaint A-schedule properties are the joint family properties and the plaintiffs are entitled to a share from out of Items 5 to 8 of plaint A-schedule properties. Therefore, in the absence of independent evidence to show that Items 1 and 2 of plaint A-schedule properties were self-acquired properties, it has to be presumed that Items 1 and 2 of plaint A-schedule properties were purchased by the 2nd defendant from out of joint family funds. 16. Therefore, in the absence of independent evidence to show that Items 1 and 2 of plaint A-schedule properties were self-acquired properties, it has to be presumed that Items 1 and 2 of plaint A-schedule properties were purchased by the 2nd defendant from out of joint family funds. 16. It was pleaded by the appellants that Item No. 3 of plaint A-schedule property was sold to the 2nd defendant i.e. the mother by the 1st defendant under Ex.B-4 registered sale deed dated 25-10-1994 and Item No. 4 of plaint A-schedule property is sold by the 1st defendant under a registered sale deed dated 25-11-1994 under Ex.B-3. It is not in dispute that the said Items 3 and 4 of plaint A-schedule properties are the ancestral properties. Furthermore, there is no evidence on record to show that for legal necessities, the 1st defendant alienated Item No. 3 of plaint A-schedule property to his mother. The 2nd defendant is none other than the mother of 1st defendant. It is also not in dispute that the 3rd defendant is none other than the sister of 1st defendant. As noticed supra, there is no evidence on record to show that for legal necessities, the 1st defendant alienated Item No. 3 of plaint A-schedule property to his sister i.e. 3rd defendant. As noticed supra, originally Items 3 and 4 of plaint A-schedule properties are ancestral properties. Therefore, the said alienations are not valid alienations and the plaintiffs are also entitled to a share in Items 3 and 4 of plaint A-schedule properties which was granted by the trial Court. 17. It was admitted by the appellants in the written statement itself that Items 5 to 7 of plaint A-schedule properties were devolved upon the father of 1st defendant in a family partition. Therefore, the plaintiffs are entitled to the share in Items 5 to 7 of plaint A-schedule properties. 18. It was further pleaded by the appellants that plaint B-schedule property is a house property and they further pleaded that late Sundarayya executed a registered Will dated 09-3-1998 in respect of western portion of plaint B-schedule house in favour of his wife the 2nd defendant and the plaintiffs are not having any right to claim it. It is admitted by the 1st defendant that eastern half of plaint B-schedule property is with the 1st defendant. The alleged Will is disputed by the plaintiffs. It is admitted by the 1st defendant that eastern half of plaint B-schedule property is with the 1st defendant. The alleged Will is disputed by the plaintiffs. Therefore, a duty casts upon the propounder of the Will to prove the alleged Will in accordance with Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act. The said Will is exhibited as Ex.B-6. As per Ex.B-6 Will, the 1st defendant and one Bodda Krishna Murthy are attestors to the said Will. It is a fact that the 1st defendant i.e. DW-1 did not depose anything about his attesting the alleged Will. It was pleaded by the defendants that the other attestor by name Bodda Krishna Murthy is no more and he died. Therefore, the defendants failed to prove Ex.B-6 Will. As noticed supra, one of the attestors to the said alleged Will i.e. 1st defendant did not depose anything about attesting of alleged Will Ex.B-6. Furthermore, the scribe of Ex.B-6 is examined as DW-4. As per his evidence, he had no personal acquaintance with Sundarayya and he is also not having any acquaintance with the other attestors and he further deposed that he is unable to say as to how the executants subscribed his signature. He further stated that with the same pen which he scribed, Sundarayya made his signature. As seen from Ex.B-6 Will, Ex.B-6 Will is scribed with blank ink pen and the signature made by the testator Sundarayya is in blue ink and it is also scribed with a ball point pen. By giving cogent reasons, the learned trial Judge rightly came to the conclusion that the evidence of scribe cannot be taken into consideration to find out the genuineness of the Will. The law also well settled that the scribe cannot be treated as an attestor. Therefore, the alleged Will Ex.B-6 is not at all proved by the propounder of the Will. 19. Section 68 of the Indian Evidence Act, 1872 reads as under: “68. The law also well settled that the scribe cannot be treated as an attestor. Therefore, the alleged Will Ex.B-6 is not at all proved by the propounder of the Will. 19. Section 68 of the Indian Evidence Act, 1872 reads as under: “68. Proof of execution of document required by law to be attested: 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 for 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 20. In the case on hand, the execution of alleged Will Ex.B-6 is strongly denied by the defendants. Therefore, the onus of proving the Will was on the propounder of the Will. But he failed to prove the same. Admittedly, in the case on hand, the alleged Will Ex.B-6 is a registered Will. The law is also well settled that mere fact that a Will is registered Will, no importance will be given to the registered Will. In the case on hand, DW-1 and one Bodda Krishna Murthy are attestors to the said alleged Ex.B-6 Will. DW-1 did not depose anything about his attesting the Will Ex.B-6. As per Ex.B-6 Will, the 1st defendant Ganapa Prakasa Rao i.e. DW-1 is also one of the attestors but he did not depose anything about the attestation of the alleged Will and another witness Bodda Krishna Murthy died, therefore, the propounder of the Will failed to discharge his burden in proving the alleged Will as required under Section 68 of the Indian Evidence Act. The law is also well settled that scribe cannot be treated as an attestor. 21. In the case of Rani Purnima Devi v. Kumar Khagendra Narayan Deb, 1961 INSC 245 : AIR 1962 SC 567 , a four-Judge Bench of the Apex Court held as follows: “23. The law is also well settled that scribe cannot be treated as an attestor. 21. In the case of Rani Purnima Devi v. Kumar Khagendra Narayan Deb, 1961 INSC 245 : AIR 1962 SC 567 , a four-Judge Bench of the Apex Court held as follows: “23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon: [See for example, Vellasamay Servai v. L. Sivaraman Servai, (1930) ILR 8 Ran 179, Surendra Nath Lahiri v. Jnanendra Nath Lahiri, AIR 1932 Cal 574 and Girji Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346 ]. Law reports are full of cases in which registered wills have not been acted upon: [See for example, Vellasamay Servai v. L. Sivaraman Servai, (1930) ILR 8 Ran 179, Surendra Nath Lahiri v. Jnanendra Nath Lahiri, AIR 1932 Cal 574 and Girji Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346 ]. Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting.” 22. In the case on hand, the propounder of the alleged Will has been unable to dispel suspicious circumstances which surround the execution and attestation of the alleged Will. The learned trial Judge, on appreciation of the entire evidence on record, rightly held in his judgment that the alleged Will Ex.B-6 is not at all proved by the 1st defendant. 23. The plaintiffs also claimed a share in plaint C-schedule properties. Admittedly, there is no evidence on record about the existence of plaint C-schedule properties. The learned trial Judge rightly in his judgment held that the plaintiffs failed to prove the existence of plaint C-schedule properties. 24. The material on record clearly reveals that plaint A and B-schedule properties are joint family properties, the same are ancestral properties and inherited by late Sundarayya who died intestate by leaving son, wife and children. By giving cogent reasons, the learned trial Judge rightly decreed the suit by granting a share in Items 1 and 2 of plaint A and B-schedule properties to the plaintiffs. I do not find any illegality in the decree passed by the learned trial Judge. Therefore, the judgment and decree passed by the learned trial Judge is perfectly sustainable under law and it requires no interference. Point No. 3: To what extent? 25. Resultantly, the appeal is dismissed, confirming the judgment and decree dated 11-7-2001 in O.S. No. 59 of 1995 on the file of Senior Civil Judge's Court, Sompeta, Srikakulam District. Pending applications, if any, shall stand closed. Considering the circumstances of the case, I order each party to bear their own costs in the appeal.