OS No.57/1998 1 PCJ (SD), Court
Dated 26.03.2025 Machilipatnam
IN THE COURT OF PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),
MACHILIPATNAM
Present: Smt.A.Padma, Prl.Civil Judge (Senior Division), Machilipatnam
Wednesday, the 26 th day of March, 2025
O.S.No.57/1998
Between:
1. Chekka Sarojanamma (Died)
2. Godavarthi Syamala Kumari, W/o Chandrasekhara Rao, Hindu, aged about 70 years, R/o Khojjillipet, Machilipatnam, Bandar Mandal, Krishna District.
...Plaintiffs
AND
Chekka Vithal Manikyala Rao, S/o late Rangarao, Hindu, aged about 72 years, Business, R/o D.No.29/89, Inugudurupet, Machilipatnam, Krishna District.
...Defendant
This suit was presented before me for final hearing on 12.03.2025 in the presence of Sri V.V.Varada Rajulu, Advocate for plaintiffs and of
Sri K.V.Sai Babu, Advocate for defendant and having stood over for consideration this court delivered the following:
J U D G M E N T
1.This suit is filed for partition of the plaint ‘A’ and ‘B’ schedule properties by the plaintiffs No.1 and 2, into 3 shares and to allot 1/6th share each to the plaintiffs in plaint ‘A’ schedule property and 1/3rd share each in the plaint ‘B’ schedule property. Subsequently, after the death of
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the 1st plaintiff, the plaint was amended to that effect and the 2nd plaintiff sought 1/6th share in the plaint ‘A’ schedule property and 2/3rd share in the plaint ‘B’ schedule property and for costs of the suit.
2.Brief facts of the plaint are that :-
(i) The 1st plaintiff is the wife, 2nd plaintiff is the daughter and the defendant is the son of Chekka late Rangarao. Chekka late Rangarao died intestate on 24.03.1995 leaving behind his ancestral property i.e., the plaint ‘A’ schedule immovable property and his self acquired property i.e., plaint ‘B’ schedule gold jewelry, silver and furniture, so also both the parties to the suit.
(ii) Chekka late Rangarao was the adopted son of late Ammayya and he succeeded the plaint ‘A’ schedule house property bearing door
No.29/89, Inugudurupeta, Machilipatnam. Late Rangarao had flourishing business in pachari shop and self acquisitions and earnings shown in ‘B’ schedule. Since late Rangarao died intestate leaving his wife i.e., the 1st plaintiff, his only son i.e., the defendant and the only daughter i.e., the 2nd plaintiff, the plaintiffs No.1 and 2 are entitled for 1/6th share in the ‘A’ schedule property and 2/3rd share in the plaint ‘B’ schedule property under Hindu Succession Act.
(iii) The defendant after the death of his father, is not treating his mother, the 1st plaintiff properly by providing necessities as a dutiful son.
He developed envy and prejudice against the 2nd plaintiff. He, his wife and his three sons are harassing the 1st plaintiff in many ways. She could not lead the miserable and distressed life with her only son and as such, she came out of the house in the 2nd week of May and started living
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Dated 26.03.2025 Machilipatnam
along with her daughter i.e., the 2nd plaintiff. The 2nd plaintiff is attending the needs and necessities of the 1st plaintiff and also serving her in her old age by providing medical assistance whenever required.
(iv) The 1st plaintiff has got bedroom with her furniture and gold jewelry. Unfortunately the defendant opened the bedroom and got joint possession of all the valuable jewelry and silver etc along with the movable articles, with evil intention to deprive the plaintiffs to have their legitimate share in the ‘B’ schedule valuable movable properties.
(v) The 1st plaintiff being vexed with the ill treatment and improper conduct and behaviour of the defendant and his wife, demanded for partition of ‘A’ and ‘B’ schedule properties personally and also through mediators and to allot her legitimate share in those properties but the defendant did not cooperate the plaintiffs for partition of the above properties. Hence the plaintiffs filed this suit.
(vi) The defendant remained exparte on 12.08.2004 and the suit was decreed on 17.08.2004. Subsequently the exparte decree was set aside as per the orders of the Honourable High Court and the suit was restored to file. The 2nd plaintiff filed a memo intimating the death of 1st plaintiff and got the plaint amended to that effect by way of filing a petition. Brief averments of the amended plaint are as follows :-
(vii) The 1st plaintiff executed a registered Will in favour of the 2nd plaintiff on 25.02.2002 in a sound and disposing state of mind in the presence of attestors by name Tata Srinivasarao and Kagitha
Durgaprasad and the Will was scribed by one V.Nameswararao. The 1st plaintiff bequeathed her share in the suit schedule properties and other properties to the 2nd plaintiff. Unfortunately, the 1st plaintiff died on
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20.08.2010. Immediately after the death of the 1st plaintiff, the Will came into force. Hence, the 2nd plaintiff became the absolute owner of the share of the 1st plaintiff in the suit schedule properties as mentioned in the Will. The plaintiff prayed the court to decree the suit in her favour as sought for.
3.Brief averments of the written statement are that :-
(i) The defendant filed written statement denying the averments of the plaint. He specifically contended that he and his father partitioned their ancestral properties on 20.02.1983 orally. Later, it was reduced to writing on 11.04.1984. Ever since, the date of partition, the defendant and his father lived separately with separate mess and enjoying their share of property separately and the defendant became the absolute owner of the properties allotted to him in the said partition. The ‘A’ schedule property appended to the plaint was allotted to the defendant in the family partition.
(ii) The movables of the joint family were also partitioned in the year 1983 itself and the defendant and his father were enjoying them separately. The partition and separate possession of properties were also accepted by late Rangarao and he also gave a declaration before the notary to that effect during his life time. He also confirmed the partition and allotment of properties to the defendant at the time of taking loan by the defendant for his business purpose. Hence, the question of partition of ‘A” schedule property and other property would not arise. The suit is not maintainable and is misconceived.
(iii) ‘A’ schedule property of the plaint was allotted to the defendant and the adjacent house property bearing door No.29/450 and another
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shop in Robertsonpet (pachari shop street) were allotted to Chekka
Rangarao and subsequently, Chekka Rangarao gifted the house property to the 2nd plaintiff and the shop in Robertsonpet to the sons of the defendant by way of registered document. All the facts are known to the plaintiffs personally.
(iv) Gold, silver and furniture etc., are in the custody of the 1st plaintiff after the death of Rangarao. The 1st plaintiff shifted the movable properties to the 2nd plaintiff’s house long ago with a view to deprive the defendant from asking his share. The ‘B’ schedule movable properties are in the possession and enjoyment of plaintiffs No.1 and 2 ever since, the date of death of Rangarao.
(v) Due to the misunderstandings between the 1st and 2nd plaintiffs and the defendant, this suit was filed with evil motive to harass the defendant, although the plaintiffs are well aware of the partition between late Rangarao and the defendant herein and that after the death of late
Rangarao, the movable properties were shifted to the 2nd plaintiff’s house which is adjacent to the defendant’s house.
(vi) The defendant denied the allegation that he opened the bedroom of the 1st plaintiff and got joint possession of all the valuables etc., with an evil motive to deprive the plaintiffs. There is no demand either personally or through mediators at any time for partition of ‘A’ and ‘B’ schedule properties since the plaintiffs are aware of the partition between the defendant and his father. The defendant prayed the court to dismiss the suit with exemplary costs.
(vii) The defendant filed additional written statement after amendment of the plaint. He contended in his additional written
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statement that Chekka Sarojanamma never executed any Will much less the alleged Will dated 25.02.2002 and Chekka Sarojanamma was not in sound and disposing state of mind in the year 2002 and the alleged Will
dated 25.02.2002 is not all the Will of Sarojanamma and the Will is
brought into existence at the instance and instigation of 2nd plaintiff. The death of the 1st plaintiff was noticed by the Honourable High Court but the 2nd plaintiff did not bring the Will allegedly executed by the 1st plaintiff,
before the Honourable High Court.
(viii) It is further averred in the additional written statement that ‘A’ schedule property is a dwelling house and it is an ancestral property fell to the share of father of Chekka Rangarao by name Chekka Ammayya in the partition among himself and his brothers Venkataratnam and
Subbarao, they being the sons of Chekka Manikyam vide registered document No.194/1927 dated 01.09.1926. The share allotted to Chekka
Ammayya was survived by his adopted son Chekka Rangarao who is the father of the 2nd plaintiff and the defendant. Since the ’A’ schedule property is a dwelling house, the suit is not maintainable for partition in view of section 23 of Hindu Succession Act, 1956 and the suit is liable to be dismissed.
(ix) It is averred further in the additional written statement that the plaintiff is not entitled for any right basing on the Will dated 25.02.2002 without probate under section 213 of Indian Succession Act. Chekka
Rangarao during his life time acquired a shop bearing door No.11/1057 as his self acquisition under registered document No.2903/1963 and gifted the same to the sons of the defendant under document
No.559/1993. Hence the defendant prayed the court to dismiss the suit.
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4.Basing on the above pleadings of both the parties, the following issues were framed by the then Presiding Officer :-
1.Whether there was a partition in between the defendant and his father in respect of ancestral properties in the year 1983 ?
2.Whether the defendant is in possession of ‘A’ schedule property as absolute owner ?
3.Whether the plaint schedule properties are to be divided into three equal shares and if so, plaintiffs No.1 and 2 are entitled to 1/6th share each ?
4. To what relief ?
Additional Issues 10.12.2024 :-
1. Whether the deceased 1st plaintiff executed Will dated 25.02.2002 in a sound and disposing state of mind in favour of the 2nd plaintiff and the same is binding on the defendant ?
2. Whether the 2nd plaintiff is not entitled to claim any share in plaint ‘A’ schedule property which is a dwelling house ?
3. Whether the 2nd plaintiff is entitled to 1/6th share of her mother in addition to her share in ‘A’ schedule property and 2/3rd share in the ‘B’ schedule property in view of Will dated 25.02.2002 ?
4. Whether the 1st plaintiff shifted ‘B’ schedule movable properties to the house of 2nd plaintiff after the death of husband of the 1st plaintiff ?
5. Whether the 2nd plaintiff is not entitled to claim any right under the alleged Will dated 25.02.2002 without a probate to that effect ?
5.Evidence of parties on record:
2nd Plaintiff got examined herself as P.W.1. She also got examined the Sub-Registrar, Machilipatnam as P.W.2 and son of one of the
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attestors of the Will said to have been executed by the 1st plaintiff, as
P.W.3 to prove the execution of the Will under Ex.A.1. The plaintiff exhibited the registered Will dated 25.02.2002, voter identity and household card of the 1st plaintiff. The defendant got himself examined as D.W.1. He also got examined one of the attestors of Ex.B.1 and B.4 as D.W.2. The defendant got marked Exs.B.1 and B.2 the gift deed executed by father of the defendant Chekka late Rangarao in favour of the sons of the defendant and the annual death ceremony card of the 1st plaintiff, during the cross examination of P.W.1. The defendant exhibited
Exs.B3 to B.5, i.e., the partition list dated 11.04.1984 entered into by the defendant and his father Chekka late Rangarao, partition among Chekka
Manikyam and his sons vide document No.194/1927 dated 01.09.1926 and declaration of Chekka late Rangarao dated 27.01.1993 along with death certificate of Chekka Rangarao.
6. Heard arguments of both parties. Defendant filed memorandum of written arguments. Gone through the evidence on record.
7.Arguments of the learned counsel for the plaintiffs :- ‘A’ schedule property is the ancestral property and as such both the plaintiffs get 1/6th share each in the plaint ‘A’ schedule property. ‘B’ schedule property is the self acquired property of husband of the 1st plaintiff by name Chekka late Rangarao. Since husband of the 1st plaintiff died intestate, both the plaintiffs and the defendant are entitled for equal share in the ‘B’ schedule property.
8.Arguments of the learned counsel for the defendant :-
(a) the plaint ‘A’ schedule property fell to the share of the defendant in the oral partition of 1983 between Chekka late Rangarao and the
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defendant, which was reduced to writing as a partition list in the year 1984 and as such the plaintiffs have no right in the plaint ‘A’ schedule property.
(b) The Will under Ex.A.1 was not proved as contemplated under section 68 of Indian Evidence Act by examining at least one of the attestors who is said to have been alive. Death of one of the attestors and paralysis of the other attestor as contended by the plaintiff No.2, is also not proved
before the court. Even if the attestor is suffering from paralysis, he has to
be examined before the court or through an advocate commissioner.
The Registrar cannot prove the contents of the documents. He can only prove the fact of registration.
(c) The Will requires probate.
(d) The law of land by the date of last breathe of propositors shall be followed while determining the rights and shares of the parties over the property. Section 6 of the amended Act cannot be applied since Chekka
Rangarao died before 2005 amendment.
(e) Though section 23 of Hindu Succession Act was repealed by way of amendment Act in the year 2005, the 2nd plaintiff must file a fresh suit.
She cannot get any share in a suit filed before the amendment Act since the plaint schedule property is a dwelling house.
(f) The earlier partition as pleaded by the defendant in his written statement was not denied by the plaintiffs even in the amended plaint.
(g) P.W.1 admitted the previous partition in her cross examination.
(h) Evidence of P.Ws.2 and 3 would not help the case of the plaintiff.
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(i) The chief examination of 1st plaintiff recorded before setting aside the exparte decree cannot be used as evidence so also, it cannot be looked into and the same cannot be considered as a statement under section 33 of Indian Evidence Act. It does not have any validity after setting aside the decree.
9.In reply the learned counsel for the plaintiffs argued that :-
(a) Probate is not necessary under section 213 (2).
(b) Omission of section 23 by way of amendment Act, can be extended to pending proceedings and there is no hurdle in its application until a final decree is passed.
(c) When the attesting witnesses are not alive, evidence of Sub-Registrar can be taken into consideration as per the law laid down by the Supreme
Court.
(d) Will is not required to be proved with mathematical accuracy, the test of satisfaction of prudent mind has to be applied.
Appreciation of Evidence on record :-
Issue No.1 :-
1. Whether there was a partition in between the defendant and his father in respect of ancestral properties in the year 1983 ?
10.There is no dispute with regard to the fact that the plaint ‘A’ schedule property is the ancestral property. Origin of the property is that late Chekka Manikyam got three sons by names Venkataratnam,
Subbarao and Ammayya. Venkataratnam, Subbarao, Ammayya and the son of Venkataratnam got the property partitioned in the year 1926 by
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way of a registered partition deed dated 01.09.1926. ‘C’ schedule property therein, fell to the share of Ammayya. Late Chekka Ammayya was not having children and as such he adopted Rangarao by way of registered adoption deed. Subsequently, late Chekka Ammayya purchased house and house site to an extent of 1857 square feet vide registered relinquishment deed document No.1431/1941 from Udattu
Subrahmanyam. Thereafter, his son late Chekka Rangarao purchased a house and house site bearing door No.29/450, old door No.26/59 to an extent of 1801 square feet vide document No.1576/1964 in favour of his wife Sarojanamma with the income derived from the joint family property.
Thereafter, in the year 1965 late Chekka Rangarao purchased a daba shop existed in an extent of 90 square feet under a registered document 2903/1965 from Gajjala Seetharamaswamy under Ex.B.1, in door
No.11/1057 (old door No.11/888). It is the contention of the defendant that the defendant and his father late Chekka Rangarao got their joint family property partitioned in the year 1983 and it was reduced to writing into a partition list dated 11.04.1984 exhibited under Ex.B.4. In the above partition, the property succeeded by late Ammayya vide partition
dated 01.09.1926 and the property that was purchased by late Ammayya
by way of relinquishment deed under registered document 1431/1941 from Udattu Subrahmanyam to an extent of 1857 square feet, fell to the share of the defendant as ‘B’ schedule property. The other two properties i.e., the house to an extent of 1801 square feet purchased in the year 1964 vide document No.1576/1964 and the daba shop to an extent of 90 square feet vide document No.2903/1965 that was purchased in the year 1965 by late Chekka Rangarao, fell to the share of late Rangarao as ‘A’ schedule, under Ex.B.4.
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11.The age of defendant when he was examined before the court in the year 2025, is 75 years. It is clear that the age of defendant by 1964 and 1965, by which years the father of defendant allegedly purchased the properties with the income arise out of joint family property, was of 14 and 15 years respectively. Then the question of purchasing property with income of joint family property of the defendant would seldom arise.
12.The plaint schedule property is the ancestral property. It cannot be looked into on par with the other properties under Ex.B.4. Ancestral property cannot be settled in favour of a person by considering it to be the joint family property in a family settlement. In fact, the plaintiffs were also the members of the joint family and they were also entitled for a share in the joint family properties on par with the defendant in the family settlement as contended by him.
13.Since the plaint schedule property which is shown as item No.1 of ‘B’ schedule property in Ex.B.4 is an ancestral property, the entire property cannot be allotted to the share of one party in the alleged partition between 1st defendant and his father late Rangarao that took place in the year 1983 and 1984. The 1st defendant and his father would be having half share each in item No.1 of the ‘B’ schedule property under
Ex.B.4 and the legal heirs of late Chekka Rangarao would be having equal share in the half share of late Chekka Rangarao if he dies intestate. The plaintiffs herein rightly claimed 1/6th share each in the plaint ‘A’ schedule property. It had to be divided between Chekka
Rangarao and his male issues primarily. Since the defendant is the only male issue for late Chekka Rangarao, the property shall be notionally partitioned between late Chekka Rangarao and the defendant.
Thereafter, both the plaintiffs and the defendant are entitled for equal
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share in the half share of Chekka late Rangarao. Hence they are entitled for 1/6th share. (½ + ½ to Chekka Rangarao and his son i.e., the defendant under section 6 of Hindu Succession Act 1956. ½ / 3 = 1/6 to each plaintiff and defendant after the demise of Chekka Rangarao being his only legal heirs under section 8 of Hindu Succession Act).
14.It is mentioned in Ex.B.4 the partition list of joint family properties that the marriage of the 2nd plaintiff was performed in the year 1964 in a grand manner and that she was given presentations towards ‘pasupukumkuma’ in a grand manner and as such she was not given any share in the above partition. Giving presentations at the time of marriage of a daughter and performing marriage in a grand manner would not dis- entitle a daughter from getting her share.
15.Though the defendant contended that there was a partition in the year 1984 between himself and his father and that his father executed a gift deed in favour of sons of the defendant in the year 1993 under
Ex.B.1 with respect to the property fell to his share, there is no recital in the gift deed dated 12.02.1993 under Ex.B.1 that there was a partition between the defendant and his father and that the property under the gift deed fell to the share of Chekka Rangarao in the alleged partition.
16.Both the attestors for Ex.B.1 gift deed dated 12.02.1993 and the attestors of partition list dated 11.04.1984 are one and the same. One of the attestors of Ex.B.4 partition list dated 11.04.1984 was examined as
D.W.2. He did not depose anything with regard to the gift deed under
Ex.B.1. He admitted during his cross examination that his sister is given in marriage to the 1st attestor of Ex.B.4 and that the 1st attestor gave his daughter to the son of the executant, in marriage. It is clear from his
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evidence that the 1st attestor is the father-in-law of the defendant and that the 2nd attestor is the brother-in-law of the 1st attestor. This witness admitted that he knows that the slabbed house mentioned in Ex.B.4 was the property of Chekka Rangarao which he got from his father and that the remaining two properties were the self acquired properties of Chekka
Rangarao. With this evidence it can be said that there was no necessity for execution of Ex.B.4 only between the defendant and Chekka
Rangarao when one of the properties is ancestral property and the other properties are the private properties of Chekka Rangarao, that too, by excluding the other members of the family i.e., the plaintiffs as discussed above. In the light above evidence, the court is of the considered view that the partition list dated 11.04.1984 cannot be considered to be a genuine one. Even if it is a genuine one, father of the defendant did not have a right to give the entire ancestral property to the defendant to his share in the partition of other joint family properties. The ancestral property cannot be seen on par with the other properties under Ex.B.4 and the partition of ancestral property cannot be affected under Ex.B.4.
With these observations issue No.1 is decided against the defendant.
Issue No.2 :-
Whether the defendant is in possession of ‘A’ schedule property as absolute owner ?
17. Validity of Ex.B.4 was already dealt in issue No.1. As the partition under Ex.B.4 with respect to the plaint ‘A’ schedule property cannot be said to be a valid one, the defendant cannot be said that he was in possession of ‘A’ schedule property as the absolute owner.
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Issue No.3 :-
Whether the plaint schedule properties are to be divided into three equal shares and if so, plaintiffs No.1 and 2 are entitled to 1/6th share each ?
18.Both the plaintiffs sought 1/6th share each in the plaint ‘A’ schedule property at the time of filing of the suit. Subsequently 1st plaintiff died.
The 2nd plaintiff sought her 1/6th share in ‘A’ schedule property by way of amendment. The contention of plaintiffs was that plaint ‘A’ schedule property is the ancestral property. Defendant also did not dispute the same. Since plaint ‘A’ schedule property is the ancestral property, there shall be a notional partition between husband of the 1st plaintiff and the son of the 1st plaintiff. Later, all the three legal heirs of husband of 1st plaintiff would be entitled to equal shares, in the half share of the husband of the 1st plaintiff. Both the plaintiffs and the defendant were the only legal heirs of husband of 1st plaintiff and as such all the three persons were entitled for 1/6th share each in the plaint ‘A’ schedule property. The calculation of the plaintiffs in the ancestral property was correct. The plaintiffs admitted the notional partition of the ancestral property between late Rangarao and his son i.e., the defendant under section 6 of Hindu Succession Act, 1956. They are claiming their share under section 8 of Hindu Succession Act as the class I heirs of late
Rangarao.
19.While the terms "coparcenary property" and "joint family property" are often used interchangeably, they are not entirely the same under
Hindu law. When it comes to Joint family property, it refers to all the property owned by a Hindu Undivided Family (HUF), which includes ancestral property, property acquired jointly by family members, and property acquired by the Karta (manager) of the HUF. The HUF consists
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of all persons lineally descended from a common ancestor, including their wives and unmarried daughters. The Karta manages the HUF property and has the power to dispose of it, but only for the benefit of the family.
20.Where as theCoparcenary Property is aspecific type of joint family property, consisting of ancestral property inherited by male lineal descendants up to three generations from the last male holder. The concept of coparcenary was limited to male members, till the recent amendments to the Hindu Succession Act which granted daughters equal coparcenary rights. Each coparcener acquires an interest in the coparcenary property by birth and they have an equal share in the property. Coparcenary property is characterized by "unity of possession, title, and interest" among the coparceners.
21.Here, the contention of the defendant is that 2nd plaintiff is not entitled for a share in the plaint schedule property being the daughter of late Rangarao under section 6 of Hindu Succession Act and that the amendment of Hindu Succession Act cannot be applied to the facts of this case, since late Chekka Rangarao died before commencement of the amendment Act. Daughters are coparcenors by birth as per the amendment Act, but their right can be enforced after 2005. As Chekka
Rangarao died prior to 2005 the right of the plaintiff No.2 as coparcenor cannot be exercised. The learned counsel for defendant relied on the following decisions :-
1. Vineeta Sharma vs. Rakesh Sharma and Others, (2020) 9 SCC 1
2. Uttam vs. Saubhag Singh & Ors., AIR 2016 SC 1169
3. Revana Siddappa and another vs. Mallikarjun and others, 2023 10 SCC 1
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The learned counsel for the plaintiffs relied on the following decisions :-
1. B.Chandrakala vs. A.Anuradha and another, 2016 (4) ALD 548 (DB)
2. Ganduri Koteshwaramma & Anr., vs. Chakiri Yanadi & Anr., 2011 SAR (Civil) 957
Here, in this suit, contention of the 2nd plaintiff is not that she is a coparcernor and that she is entitled for a share as coparcenor under section 6 of Hindu Succession Amendment Act, 2005. Contention of the plaintiffs from the beginning is that they are entitled for 1/6th share each in the plaint ‘A’ schedule property. Since the plaintiffs claimed share under section 8 of Hindu Succession Act, they claimed 1/6th share. If at all, the 2nd plaintiff claimed her right as a coparcenor, she would have claimed 1/3rd share in the plaint schedule property but her claim is not that. She claimed only 1/6th share in the plaint ‘A’ schedule property i.e., 1/3rd share in her fathers 1/2 share and as such the above contention of the learned counsel for the defendant cannot be considered and the facts of the judgments relied upon by the learned counsel for defendant are with regard to the share of a daughter in the copacenery property.
With these observations the court is of the considered view that the plaintiffs were entitled for 1/6th share each in plaint ‘A’ schedule property.
Shares in ‘B’ schedule property will be decided separately. Issue No.3 is decided in favour of the plaintiffs and against the defendant.
Additional issue No.1 dated 10.12.2024 :-
1. Whether the deceased 1st plaintiff executed Will dated 25.02.2002 in a sound and disposing state of mind in favour of the 2nd plaintiff and the same is binding on the defendant ?
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22.Though the 2nd plaintiff contended that her mother i.e., the 1st plaintiff executed a Will in her favour on 25.02.2002 in a sound disposing state of mind bequeathing her share in the plaint schedule property, she did not claim the property of her mother in her prayer, in the plaint. She only claimed her 1/6th share of the plaint schedule property. If the 2nd plaintiff succeeds in proving the execution of the Will by the 1st plaintiff in favour of the 2nd plaintiff, the share of the 1st plaintiff if she gets any in the suit, can be decreed in favour of the 2nd plaintiff although she did not seek it specifically, since it is a suit for partition.
23.In order to prove the Will, the 2nd plaintiff examined P.Ws.2 and 3 i.e., the Sub-Registrar, Machilipatnam and son of one of the attestors, whose father was said to have been died. There is no evidence on record that P.W.3 is the son of Kagitha Durga Prasad, who was one of the attestors. Evidence of P.W.3 is that he can identify the signature of his father and that the signature of 2nd attestor in Ex.A.1 is the signature of his father and that the signature of the 2nd identifying witness in Ex.A.1 is also the signature of his father. He did not depose as to the name of his father so also, the fact whether his father is alive, if not alive as to when he died. He did not file any document to show either his relationship with the 2nd attestor of Ex.A.1, or his identity particulars or any document in proof of the death of the alleged attestor.
24.As far as the evidence of the other attestor is concerned, contention of the plaintiff is that the other attestor is suffering from paralysis. No document is produced before the court to show that the other attestor was suffering from paralysis and that he was not in a position to appear before the court and give evidence as a witness.
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25.The plaintiff got examined the Sub-Registrar, Machilipatnam to show the execution of a registered gift deed by the 1st plaintiff in favour of the 2nd plaintiff. The learned counsel for the plaintiff relied on the following decisions :-
1. Savitri Bai and Another vs. Savitri Bai, 2024 0 Supreme (SC) 171
2. Poonnamma Jagadamma & Others vs. Narayanan Nair & Others, 2017 SAR (Civil) 734
3. Ved Mitra Verma vs. Dharam Deo Verma, 2014 0 Supreme (SC) 1013
4. Meena Pradhan & Ors., vs. Kamla Pradhan & Anr., 2023 Supreme (SC) 985
In all the judgments relied upon by the plaintiff, either the attesting witnesses of the Will were examined before the court or the attesting witnesses died, but in the present case, one of the attesting witnesses is alive as per the contention of the 2nd plaintiff herself, but he was not examined before the court. Though it was contended by the 2nd plaintiff that the attestor who is alive, is suffering from paralysis, no document is produced before the court to that effect. Hence the judgments relied upon by the 2nd plaintiff can be said to be on different set of facts.
The learned counsel for the defendant relied on the following judgments as to the proof of Will :-
1. Dhani Ram (died) through LRs., & others vs. Shiv Singh, 2023 Live
Law (SC) 862
2. Leela & Ors., vs. Muruganantham & Ors., Civil Appeal No.7578 of 2023
3. Moturu Nalini Kanth vs. Gainedi Kaliprasad (dead, through LRs.,) 2024 (1) ALT (SC) 58 (DB)
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Strict compliance of section 68 of Indian Evidence Act to prove a
Will, was reiterated in the above judgments. Relying on the verdicts relied upon by the defendant, this court is of the considered view that the plaintiff could not prove the Will as per the procedure established by law under section 68 and 69 of Indian Evidence Act and section 63 of Indian
Succession Act by examining at least one of the attestors, if alive or by proving their signature that it is in their handwriting.
26.However, it is not the case of the defendant that the 1st plaintiff executed any other deed in his favour or in favour of any other person.
Admittedly, the 2nd plaintiff and the defendant are only the legal heirs of the 1st plaintiff. If it is not decided in this suit as to the succession of the share of the deceased 1st plaintiff that she got in this suit, by the court in this suit itself, the parties will be constrained to file another suit for a share in the 1/6th share of their deceased mother. Under these circumstances, the share of the 1st plaintiff i.e., 1/6th share in the plaint schedule property can be divided into two shares as per section 15 of
Hindu Succession Act and one share each can be allotted to the 2nd plaintiff and the defendant.
The learned counsel for the defendant relied on the following judgment contending that suit cannot be decreed for the entire property if it is filed for 1/2 share in the property :
1. Gulabrao Balwantrao Shinde and others vs. Chhabubai Balwantrao
Shinde and others, AIR 2003 SC 160
Here, in this suit, the 2nd plaintiff sought her 1/6th share and also relied on the Will of her mother, for her 1/6th share in the plaint ‘A’ schedule. However, as she failed to prove the Will and it is admitted fact
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that 2nd plaintiff and the defendant are the only legal heirs of the 1st plaintiff and it is not the contention of the defendant that his mother executed any other testament, this court is of the considered view that the share of the deceased 1st plaintiff in the suit can also be shared between the 2nd plaintiff and the defendant and that the facts of the case relied upon by the learned counsel for the defendant is on different footing.
Additional issue No.2 dated 10.12.2024 :-
2. Whether the 2nd plaintiff is not entitled to claim any share in plaint ‘A’ schedule property which is a dwelling house ?
27.Contention of the defendant is that plaint ‘A’ schedule property is a dwelling house and as such 2nd plaintiff cannot claim any share in the plaint ‘A’ schedule property in view of section 23 of Hindu Succession Act 1956. Though section 23 of the Act was omitted by way of amendment, 2005, the 2nd plaintiff cannot seek a share in a suit filed before the amendment Act coming into force. The defendant contended that at the best the 2nd plaintiff can claim a share in the dwelling house by filing a fresh suit.
The learned counsel for the defendant relied on the following decision :-
1. G.Sekar vs. Geetha & Ors., AIR 2009 SC 2649
The learned counsel for the 2nd plaintiff relied on the following decisions contending that omission of section 23 applied to pending suits.
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1. Burugupalli Seesharatnam vs. Sirigina Ramalakshmi and others, 2015 (4) ALD 122
2. G.Sekar vs. Geetha & Ors., AIR 2009 SC 2649
28.Though it is the contention of the defendant that the plaint ‘A’ schedule property is the dwelling house, the defendant admitted in his cross examination that he has been residing in Kojjillipeta and that he did not mention in his chief examination affidavit that he is residing in
Inagudurupeta at present and that the plaint ‘A’ schedule property is a vacant site at present. As it is admitted by the defendant that it is not a dwelling house at present, there is no reason for rejecting the prayer of the plaintiff by considering that the plaint ‘A’ schedule property was a dwelling house. It is ridiculous to cause the 2nd plaintiff to file another suit to claim a share in a property which is not a dwelling house and it is a vacant site by the time of partition even after the amendment of Hindu
Succession Act omitting section 23 of the Act. The facts of the judgment relied upon by the learned counsel for the defendant are on different set of facts from that of the present suit. With these observations, this issue is decided in favour of the 2nd plaintiff and against the defendant.
Additional issue No.3 dated 10.12.2024 :-
3. Whether the 2nd plaintiff is entitled to 1/6th share of her mother in addition to her share in ‘A’ schedule property and 2/3rd share in the ‘B’ schedule property in view of Will dated 25.02.2002 ?
29.Share of 2nd plaintiff with regard to the property of her mother in ‘A’ schedule property is already decided in additional issue No.1. Share of mother of the plaintiff No.2 with respect to ‘B’ schedule property under the Will, will be covered under additional issue No.4. Hence this issue is decided accordingly.
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Additional issue No.4 dated 10.12.2024 :-
4. Whether the 1st plaintiff shifted ‘B’ schedule movable properties to the house of 2nd plaintiff after the death of husband of the 1st plaintiff ?
30.The plaintiffs claimed that ‘B’ schedule movable property is in the ‘A’ schedule house and that the ‘B’ schedule property was in the possession of the 1st plaintiff and that due to the harassment caused to her by the defendant, his wife and children, the 1st plaintiff went to the house of 2nd plaintiff with her wearing apparel by leaving all her movable properties in the house of the defendant and that the defendant broke open the doors of the room of the 1st plaintiff and secreted the ‘B’ schedule property. Contention of the defendant is that after the death of husband of the 1st plaintiff, she shifted the entire ‘B’ schedule property to the house of the 2nd plaintiff which is adjacent to the house of the defendant and that the same is in the possession of the plaintiffs. Both the parties did not produce any evidence with regard to the existence of the ‘B’ schedule property. The 2nd plaintiff did not produce any evidence that defendant broke open the room of the 1st plaintiff and secreted the ‘B’ schedule property. The defendant also did not produce any evidence to show that the 1st plaintiff shifted the movable properties to the house of the 2nd plaintiff with a view to deprive the defendant from asking a share.
31. An advocate commissioner was appointed on the petition of the plaintiffs for ascertaining the existence of ‘B’ schedule movable properties in IA No.1022/1998. The learned advocate commissioner conducted inventory and filed his report. The report of the advocate commissioner shows the availability of general household items. No valuable furniture is seen in the indventory. Gold and silver articles as mentioned in ‘B’ schedule are not seen in the report filed by the learned
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advocate commissioner. The learned advocate commissioner mentioned in his report that only 4 gold items were found in the locker and that they are gold ‘nanthadu’ - 2 in number, gold ‘kasulu’ 2 in number, ‘nallapusala danda’ with gold wire -1, single roleblack beads (‘Nallapusalu’) and gold ‘mangalasutralu’ - 2 in number with red stones and that they were weighed in the presence of both the parties at electronic madhyavarthi kata, at Bullian Jewelers Merchants Association, Machilipatnam and obtained the receipt and that he enclosed them to the report.
32.The report of the learned Advocate Commissioner shows that an inventory was conducted. The receipt filed along with the report of the learned advocate commissioner shows that ‘sutralu’ 2, ‘roopulu’ 2 and ‘nanthadu’ 2 were weighed 12 grams 900 milligrams and black beads (‘nallapusala golusu’) was weighed 11 grams 830 milligrams. The plaintiffs did not file any objections to the report of the learned Advocate
Commissioner. Defendant filed objections to the report. The defendant raised objections with regard to the other items but he did not raise any objections with regard to the gold items. He specifically mentioned in the objections that the weight of the gold ornaments is not disputed. Hence the parties are entitled for 1/3rd share in the available gold ornaments.
Since the Will allegedly executed by the 1st plaintiff in favour of the 2nd plaintiff is not proved to the satisfaction of the court, the 2nd plaintiff and the defendant are entitled for half share in the 1/3rd share of the 1st plaintiff in available gold ornaments in plaint ‘B’ schedule property. With these observations this issue is decided.
Additional issue No.5 dated 10.12.2024 :-
5. Whether the 2nd plaintiff is not entitled to claim any right under the alleged Will dated 25.02.2002 without a probate to that effect ?
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33.The plaintiff contended that no probate is required in Andhra
Pradesh to enforce the Will. He relied on the following judgment :-
1. Gangavath Lalu vs. Gangavathi Tulsi 2001 (0) Supreme (AP) 154
The learned counsel for the defendant contended that a probate is required to prove the Will, he relied on the following verdicts to support his contention :-
1. Sri Gajanan Stores rep., by its Managing Partner, Sri Sudhakar Phadki and others vs. Smt.Shailaja Khadikar and others, 2012 (5) ALT 43 (D.B.)
2. Kanta Yadav vs. Om Prakash Yadav and others, AIR 2019 SC 5556
3. Narasimha Murthy vs. Smt.Susheelabai and others AIR 1996 SC 1826
Since it was already decided by this court in additional issue No.1 that the 2nd plaintiff i.e., the propounder of the Will could not succeed in proving the Will, this court is not inclined to go into the facts as to requirement of probate to enforce the Will. Hence this issue is decided accordingly.
Issue No4. :- To what relief?
34. In view of the result of all other issues decided above, this court is of the considered view that the 2nd plaintiff is entitled for her 1/6th share and 1/12th share i.e., 1/2 share in the 1/6th share of her mother in the plaint ‘A’ schedule property, = 1 + 1 6 12 = 2 +1 = 3 = 1 12 12 4
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The defendant is entitled for his 1/2 share and 1/6th share and also the 1/12th share i.e. 1/2 share out of 1/6th share of his mother in the plaint ‘A’ schedule property.
= 1 + 1 + 1 2 6 12 = 6+2+1 = 9 = 3 12 12 4
Out of 200 square yards of plaint ‘A’ schedule property, the plaintiff is entitled for 1/4 share i.e., 50 square yards and the defendant is entitled for 3/4th share i.e., 150 square yards.
The entire ‘A’ schedule property is 1/4 + 3/4 = 4/4 = 1.
As far as ‘B’ schedule property is concerned, the plaintiff and the defendant are entitled for half share equally in the available plaint ‘B’ schedule property as per the report of the advocate commissioner.
35. In the result, the suit is preliminary decreed. Plaintiff No.2 is entitled for 1/4th share i.e., 50 square yards out of 200 square yards of the plaint ‘A’ schedule property and 1/2 share of gold ornaments in the available ‘B’ schedule property as per the report of the learned advocate commissioner. The defendant is entitled for 3/4 share i.e., 150 square yards out of 200 square yards of the plaint ‘A’ schedule property and 1/2 share of gold ornaments in the available ‘B’ schedule property as per the report of the learned advocate commissioner. There is no order as to
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costs in view of the relationship between the parties.
Typed to my dictation by the Personal Assistant, corrected, signed and pronounced by me in the open court, on this the 26 th day of March, 2025.
Sd/- A.Padma,
Prl.Civil Judge (Senior Division),
Machilipatnam.
APPENDIX OF EVIDENCE
witnesses examined for
Plaintiffs: Defendant:
P.W.1: Godavarthi Syamala Kumari D.W.1: Chekka Vithal Manikyalarao
P.W.2 : K.Naga SrinivasD.W.2: Bonda Krishna Gopal @ Bonda Gopala Krishna
P.W.3: Kagitha Venkata Jayakumar
Exhibits marked for Plaintiffs :-
Ex.A.1 Registered Will dated 25.02.2002
Ex.A.2Voter identity card of 1st plaintiff
Ex.A.3Household card of 2nd plaintiff
Ex.X1 : Copy of the Will dated 25.02.2022
Exhibits marked for Defendant:
Ex.B.1 :- Gift deed executed by father of the 2nd plaintiff in favour of sons of defendant dated 12.02.1993
Ex.B.2:- 1st Annual death ceremony card of the 1st plaintiff
Ex.B.3 :- Partition deed among Chekka Manikyam’s sons vide document No.194/1927 dated 01.09.1926
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Ex.B.4 :- Partition list dated 11.04.1984
Ex.B.5 :- Declaration of Chekka Rangarao dated 27.01.1993 along with death certificate of Chekka Rangarao
Sd/- A.Padma,
Prl.Civil Judge (Senior Division), Machilipatnam.
// True Copy //
PCJ (SD), MTM