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IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION)
-CUM-JUDICIAL. FIRST CLASS MAGISTRATE : BHIMAVARAM
PRESENT:- Sri Pavan Kumar Aka,
Principal Civil Judge(JD), Bhimavaram
FAC/ Principal Civil Judge(JD), Palakol.
Wednesday, this the 10th day of April, 2024
ORIGINAL SUIT No.113 of 2017
Between:
2. Khandavalli Immanuel, S/o.Israel, Christian, Male, Age. 52 years, D.No. 1-42, Bhatlamaguturu, Penumantra Mandal.
3. Noundru Nirmalamma, W/o. Nageswara Rao, Christian, Female, Age. 57 years, D.No. 1-42, Bhatlamaguturu, Penumantra Mandal. … Plaintiffs
And
1) Khandavalli Kepa Prakash S/o. Israel, Christian, Male, age. 46 years, D.No. 1-41, Bhatlamaguturu, Penumantra Mandal.
2) Revu Ratnabai, D/o. Raja Ratnam, Christian, Female, Age. 50 years, D.NO. 2-3-34/1, Narasingaravupeta, J.N.C.C.(SO) , Kothuru, Visakhapatnam District.
3) Geddada Mercibai, W/o. Prasad, Christian, Female, Age. 44 years, D.NO. F-123, BHPV, Gajuwaka, Visakhapatnam.
4) Revu Jhansibai, D/o. Rajaratnam, Christian, Female, Age. 44 years, D.No. 2-3-34/1, Narasingaravupeta, J.N.C.C(SO),Kothuru, Visakhapatnam District.
5) Revu Vijjulatha, D/o. Raja Ratnam, Christian, Female, Age. 27 years, D.No. 2-3-34/1, Narasingaravupeta, J.N.C.C(SO), Kothuru, Visakhapatnam District.
6) Revu Ravindra Prasad, S/o. Raja Ratnam, Christian, Male, Age. 36 years, Lecturar, D.No. 2-3-34/1, Narasingaraopet, J.N.C.C.C(SO) Kothuru, Visakhapatnam.
7) Khandavalli Sitamahalakshmi @ Baby, D/o. Ch.Asirwadam, Christian, Female,
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Age. 38 years, D.No. 23-2-27, Embarian Peta, Palakol.
8. Bosupamula Padma, W/o. Surya Rao, Christian, Female, Age. 57 years, D.No. 23-2-27, Embarian peta, Palakol.
9. Indian Bank Palakol Rep.by its Branch Manager, Palakol.
10. Life Insurance Corporation of India Rep.by its Branch Manager, Palakol.
11. Ravuru Nagaratnam , Female, Age. 47 years W/o. Vijaya Ratnachari, Hindu, D.No. 3-90/6, Bantumilli Village, Bhantumilli Mandal, Machiipatnam. … Defendants
This suit is coming on 12.02.2024 for final hearing before me in the presence of Sri P. V. Krishana Rao, advocate for the Plaintiff,
Sri S.K.Ramalingeswara Rao, advocate for 1st defendant, Sri D.Seshagiri
Rao, Advocate for 9th defendant, Sri P.D.S.V.Balaji, Advocate for 10th defendant, Sri K.Yohanu, Advocate for 11th defendant and D2 to D6 are remained ex parte, case against D7, D8 dismissed and upon hearing and having stood over the matter to this day for consideration, this Court delivered the following :
J U D G M E N T
1) This is a suit filed by the plaintiff seeking to grant necessary preliminary and final decree in favour of the plaintiffs and against the defendants for (a) for partition of item Nos.1 and 2 of the plaint schedule properties into 9 equal shares and for allotment of two such shares to the plaintiffs after evicting the defendants from item Nos. 1 and 2 (b) for partition of item Nos.3 and 4 of the plaint schedule properties into 9 equal share and for allotment of two such shares to the plaintiffs and (c) Costs of the suit.
2) The brief averments of the plaint are as follows:-
a). The plaintiff submits that, 1st plaintiff and the 1st defendant are brothers and the 2nd plaintiff is their sister. The plaintiffs and the 1st defendant
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Revu Rajaratnam and Jojibai. The 8th defendant is the daughter of
Chadalawada Ashirwadam and Bobamma. The 8th defendant was the wife of the late Chadalawada Daniel. Chadalawada Daniel and Ashirvadam, who is the father of 7th defendant, are brothers and, Khandavali Kamalamma who is the mother of the plaintiffs and 1st defendant and Revu Jojibai who is the mother of the defendants 2 to 6 are their sisters.
b). The 1st plaintiff further submits that, Chadalawada Daniel used to work as messenger in the branch of 9th defendant. In or about the year 1978
Daniel married the 8th defendant but they have no issues. Subsequently disputes arose between Daniel and the 8th defendant and they took customary divorce before the elders in the year 1996. Later the 8th defendant married one
Bosupamula Surya Rao of Palakol town and she changed her name as
Bosupamula Padma Mary and went to Gulf country in the year 1997 along with him. Since 1996 Ch.Daniel has been living separately and his sisters used to look after his welfare.
c). The 1st plaintiff further submits that, the property is the absolute property of the late Chadalawada Daniel. He purchased an extent of 66 sq.
yards of site and a terraced building there off i.e, item no.1 of the plaint schedule property from Smt. Unikela Lakshmi under the registered sale deed dt.5-12-1987 document No. 4617 of 1987. Ever since the date of purchase
Daniel alone had been in possession and enjoyment of the said property.
Chadalavada Samiel, the father of Daniel, purchased an extent of Ac.1.00 cents from Chadalavada Yobu under the registered sale deed dt.29.01.1961.
After the death of Chadalavada Samiel the said Ac.1.00 cents devolved upon his two sons Daniel and Ashirvadam equally and each has got undivided half share in the said land. In the year 1992 Chadalavada Ashirvadam sold away his undivided half share of an extent of Ac.0.50 cents out of Ac.1.00 cents to one Koppineedi Srinivas under the registered sale deed dt.10.7.1992. So the remaining Ac.0.50 cents which is item No.2 of the plaint schedule property belongs to Chadalavada Daniel.
d). The plaintiff further submits that, as Chadalavada Daniel died
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Chadalavada Daniel is the absolute owner of the plaint schedule property and nobody has got any right over the same.
e). The plaintiff further submits that Chadalawada Daniel while working in bank suddenly died on 3.2.2001 due to heart attack. By the date of death of Daniel the 8th defendant was at Kuwait and she did not attend the funerals of Daniel as she already gave divorce to him. As Daniel died issueless and intestate and as his wife gave customary divorce to him all his properties devolved upon the plaintiffs and the defendants 1 to 7 equally who are the children of two sisters and brother of late Daniel as per section 47 of the Indian Succession Act.1925. As the 8th defendant took divorce from late
Daniel and married another person she has no right or share in the properties of late Daniel.
f). The plaintiff further submits that, 1st defendant who is no other than the own brother of the plaintiffs with a malafide intention and to knock away the monetary benefits consequent on the death of Daniel, who is an employee in 9th defendant bank, hatched up a plan and as per his plan brought in to existence a will dt.12-11-1999 by forging the signatures of late Ch.Daniel.
Basing on the forged will the 1st defendant filed succession OP 25/2013 on the file of Senior Civil Judges Court Narsapur as if late Daniel bequeathed all his properties in his favour behind the back of the other legal heirs and obtained an order dt.23-4-2015 by playing fraud.
g). The plaintiff further submits that, the 1st plaintiff went to 9th defendant branch and enquired about the death benefits of late Daniel. The branch manager informed that he is going to pay away the death benefits to the 1st defendant as he obtained a succession certificate. After coming to know about the illegal efforts of the 1st defendant in obtaining succession certificate immediately the 1st plaintiff gave representation to the 9th defendant requesting not to pay the monetary benefits of the deceased Chadalavada Daniel to him.
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But in spite of the representations given by the plaintiffs the 9th defendant making active preparations to pay away the monetary benefits to the 1st defendant. So the plaintiffs filed W.P.No. 362009/2016 on the file of
Honourable High Court of Judicature at Hyderabad against the 1st defendant,
9th defendant and its higher authorities seeking direction to consider the representations of the plaintiff and tostop the payment of death benefits of late
Daniel to the 1st defendant. In view of the filing of the said Writ petition the 9th defendant stopped payment of death benefits to 1st defendant.
h). The plaintiff further submits that, the 1st defendant having failed in his attempt to withdraw the death benefits of Ch.Daniel brought into existence the registered sale deed dt.24-10-2016 in respect of item No.1 of the plaint schedule property in favour of the 11th defendant as if he is the absolute owner of the said property. The plaintiffs submits that the plaintiffs and the defendants 2 to 7 are the Legal heirs of late Ch.Daniel and they have got equal shares in the plaint schedule property along with the 1st defendant. So the sale deed dt.24-10-2016 is not valid under law and the 1st defendant has no right to sell away item No.1 of the plaint schedule property to the 11th defendant herein. The alleged sale deed dt.24-10-2016 will not bind the shares of plaintiffs in item No.1 of the plaint schedule property as they are not parties to the said document. As the plaintiffs and defendants 2 to 7 have got equal shares in the plaint schedule properties deemed to be in joint possession of items (a) and(b) of plaint schedule property.
i). The plaintiff further submits that, late Ch. Daniel died intestate and he never executed any will in respect of the plaint schedule property. The succession certificate dt.23-4-2015 obtained by the 1st defendant by playing fraud on the Honourable court and it will not bind the shares of the plaintiffs in respect of item No.3 and 4 of the plaint schedule property.
j). The plaintiff further submits that, as late Ch.Daniel is the former husband of the 8th defendant and so she is added as a proforma party to the suit. As the monetary benefits of late Daniel are in the custody of 9th defendant and as the 9th defendant tried to pay away the monetary benefits to 1st defendant the 9th defendant is a proper and necessary party to the suit. The insurance claim amount of the deceased Daniel is lying with the 10th defendant and the plaintiffs have got share in item 4 of the plaint schedule
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k). The plaintiff further submits that, 1st defendant in order to knock away the item No.3 and 4 of the plaint schedule property for himself making hectic preparations and influencing the defendants 9 and 10 for payment of monetary benefits and insurance claim amount to him. The 1st st defendant is also trying to alienate item No.2 of the plaint schedule property to others by suppressing the real facts in order to defeat the shares of the plaintiffs in the said property. Hence the plaintiffs are filed this suit for partition of item Nos.1 and 2 of the plaint schedule property into 9 equal shares by metes and bounds and for allotment of one such share each to the plaintiffs and also for payment of 1/9th share of amount from out of the amounts lying with 9th and 10th defendants. Hence the suit.
3) After receipt of summons, 1 st defendant filed his detailed
written statement and the same is adopted by 11 th defendant by denying
the all the averments in plaint are as follows :
a). The 1st defendant humbly submits that, he is the fostered nephew / son of deceased Chadalawada Daniel. Chadalawada Daniel did job in Indian Bank, Palakol branch as Sub staff Daftary. The said Chadalawada
Daniel during his service of employment in IndianBank, Palakol, W.G.District died testate on 3-2-2001 at Palakol due to cardiac arrest. Chadalawada
Daniel got married one Gangolu Padma in the year 1980. But no children were born to them during their marital lie. Due to serious family disputes arose between them, Chadalawada Daniel and his wife Gangollu Padma took customary divorce in the month of January,1996. Later, in the year 1998, the said Gongolu Padma got second marriage with Bosupamula Surya Rao and she is living with her 2nd husband Bosupamula Surya Rao, by changing her name as Bosupamula Padma Marry.
b) The 1st defendant further submits that, Chadalawada Daniel, due to love and affection towards children, he took this 1st defendant as his fostered son and got educated and performed his marriage with his elder
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PJCJ Court, PKL 7 brother’s daughter “Seethamahalakshmi @ Baby i.e, 7th defendant herein on 11-6-1994. The 1st defendant attended all his needs of Chadalawada Daniel and rendered services to him during his ill health in his last days. During his life time, due to love and affection towards 1st defendant, the said
Chadalawada Daniel executed an unregistered will dt.12-11-1999, bequeathing all his properties including his death benefits which are lying with the Indian bank, Palakol branch and the amount of his LIC patta No. 37066138 policy. So, by virtue of will dt.12-11-1999, the 1st defendant came into possession and enjoyment of the plaint schedule properties immediately after the death of Chadalawada Daniel. The 1st defendant also obtained succession certificate in his favour from senior civil Judge Court, Narsapuram in order to receive the amounts lying with the Indian Bank, Palakol branch in the shape of provident fund, Gratuity, Leave Encashment, and bank balance in his account
No.2360 and amount lying with the LIC of India under policy No. S37066138 dt.10-1-1979. These facts are well aware to the plaintiffs, defendants 2 to 8 and 11 also. But no one raise any objection.
c) 1st Defendant further submits that, 1st defendant is the absolute owner of items No.1 and 2 of plaint schedule properties and he is also entitled to receive the amounts of deceased Chadalawada Daniel lying with the defendants 9 and 10 by virtue of will dt.12-11-1999 and by virtue of succession certificate dt.23-4-2015 passed in S.O.P No.25/2013 by the Honourable Senior
Civil Judge Court, Narsapuram. Either the plaintiffs or defendants 2 to 8 have
no right or interest to claim any share in the plaint schedule properties.
d) Further submits that, 1st defendant also discharged the housing loan due amount of rs. 66,384/- due by deceased Chadalawada Daniel to the
Indian Bank, Palakol ie., 9th defendant herein from the sale proceeds of item
No.2 of plaint schedule property which was sold by him to 11th defendant under registered sale deed dt. 24-10-2016 by virtue of will dt.12-11-1999 executed by Chadalawda Daniel in favour of 1st defendant. The possession was also given to 11th defendant on the date of execution of Registered Sale deed dt.24-10-2016 itself and 11th defendant is in possession and enjoyment of the item No.2 of the plaint schedule property since the said date. Item No.1 of the plaint schedule property also in the possession and enjoyment of the 1st defendant only. The plaintiffs or the defendants 2 to 8 never in joint possession
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4. After receipt of summons, as the D2 to D6 are called absent and remained unrepresented, they are set exparte on 3-12-2018. As the plaintiffs had not paid process in spite of number of opportunities given for servicing of notices on D7 and D8, the case against D7 and D8 is dismissed by the Court.
5. After receipt of summons, 9 th defendant filed his detailed written statement as follows :
While admitting the employment of Chadalavada Daniel, S/o.
Samuel with their Bank, and his death, denied all the rest of allegations. They further contended that after the death of Chadalavada Daniel his legal heirs are entitled to PR and gratuity payable after death. It is further submitted that the 1st defendant Khandavalli Kepa Prakash issued a notice on dt.17-10-2016 informing the bank that he filed succession OP No.25/2013 on the file of
Senior Civil Judge’s Court, Narsapuram for issuance of succession certificate
for the amounts due to Chadalavada Daniel and obtained the orders on dt.23- 4-23.4.2015 and therefore as per the succession certificate, the 1st defendant is entitled for the amounts payable to Late Chadalavada Daniel. The provident fund amount Rs.77,334/- and gratuity of Rs.92,122/- are to be settled on the account of Chadalavada Daniel, as the terminal benefits. The 9th defendant is unnecessary brought to the suit proceedings. The cause of action of the suit is false. The amount claimed is not correct, and there are no deposits hold with the bank, except the terminal benefits to be settled without interest according to procedure and law and the bank has to oblige the court orders. Hence prays to dismiss the suit.
6. After receipt of summons, 10 th defendant filed his detailed written statement by denying the averments of plaint as follows :
While admitting as to late Chadalawada Daniel during his life time in the year 1978 obtained insurance policy bearing No. S37066138 from this defendant and the insurance claim amount of the deceased Daniel is with them contended that as per the specifications of the organization, the
Claimants should submit Death Certificate and Claim forms and then
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The claim is barred by limitation of time but this defendant may examine the claim on exgratia basis. Further submits that, 1st defendant/Khandavalli Kepa
Prakash filed S.O.P.No.25 of 2013 in the Court of the Hon’ble Senior Civil
Judge at Narsapur for issuance of succession Certificate in his name for the
death benefits pertaining to Chadalawada Daniel which are lying with the
Indian Ban, Palakol and the death claim amount in LIC policy No. S37066138.
Subsequently, the Honourable court had passed order dt.23-4-2015 allowing the petition and issued succession Certificate in SOP No. 25/2013 vide dated 21-3-2017 in favour of Khandavalli Kepa Prakash. On submitting the said
Original Succession Certificate and Original policy bond under Policy No.
S37066138 by Khandavalli Kepa Prakash, this defendant had issued claim forms to him. This defendant had received claim forms duly fileld in by
Khandavali Kepa Prakash. But as per the documents enclosed in this plaint in
O.S.N.113/2017 filed by plaintiff Khandavalli Immanuel and another, it is observed that petitioner Khandavalli Emmanuel approached High Court in
W.P.No. 36209/2016 on the file of Hon’ble High Court of Judicature at
Hyderabad claiming that he and some others are also legal heirs of the deceased employee namely Chadalavada Daniel and petitioned for stopping the payment of monetary benefits by Respondents 2 and 3 (Indian Bank) to respondent 4/ Khandavalli Kepa Prakash. Though this defendant LIC is not made a party in the W.P.No. 36209/2016, the issue raised by the petitioner
before the Hon’ble High Court in W.P.No. 36209/2016 is contrary to the order
in succession O.P.No. 25/2013 and also in the petition in this
O.S.No.113/2017, we have stopped payment of death claim benefits in respect
of policy No. S37066138. Further submits that, this defendant is ready and willing to pay the insurance amount as per the norms of the organization and as per the direction of the Honourable Court. The plaintiffs have no cause of action to file the suit against this defendant and the claim is not correct. Hence prays to dismiss the suit.
7. As the efforts made U/s.89 CPC are not worked out, basing on the above rival contentions and basing on the above pleadings, the following issues and additional issues are settled for trial :
2. Whether the plaint schedule properties are be entitled for partition into 9 equal shares ?
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3. Whether the plaintiffs are entitled for shares in the schedule properties?
4. Whether the 10th defendant is entitled for pay the insurance amount as per the norms of the organization and as per the direction of the Honourable Court?
5. Whether there is no cause of action in this suit as contended by 10th defendant?
6. If So, to what relief ?
8. To substantiate the contentions of the plaintiff, the plaintiff himself examined as PW.1, and also got exhibited Exs.A1 to A6. To contradict the evidence of plaintiff and to substantiate their contentions, the 1st defendant examined himself as DW.1, apart from exhibiting Ex.B1 to B4 on their behalf.
Except the evidence of P.W.1 and D.W.1, there is no other oral evidence is adduced by either parties.
9. To determine the issues when the evidence on record is perused, the 1st Plaintiff / K. Immanuel / P.W.1 filed his chief examination affidavit in lieu of his chief examination, reiterating the contents of the plaint. To substantiate his contentions as to purchase of property by Chadalavada Daniel from
Unikela Lakshmi, got exhibited the extract of registered sale deed dt.5.12.1987 / Ex.A1 and to further show as to purchase of property by Chadalavada
Samuel from one Chadalavada Yovu, got exhibited the extract of registered sale deed dt.29.01.1961 / Ex.A2 and further got exhibited the extract of registered sale deed of Chadalavada Aseervadam dt.10.07.1992 / Ex.A3 also.
To further substantiate that he got share in the said property as the said Daniel died, got exhibited the death certificate of the said Chadalavada Daniel /
Ex.A4. To say that the 1st defendant alienated the property to 11th defendant, got exhibited the extract of registered sale deed dt.24.10.2016 / Ex.A5.
10. When his cross examination is perused, it is his evidence that his father Khandavalli Israel got three sisters by name Vajramma, Annamma and
Vaiduryam and five brothers by name Khandavalli Simonu, Israel, Sudarsan,
Ananda Rao and Santha Rao and out of the above five brothers and sisters, only Khandavalli Ananda rao is alive and he did not shown the legal heirs of such brothers and sisters in this suit and also not shown that Anandarao as
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Daniel and admitted that the 1st defendant was provided a job in the same bank, where the Daniel worked and he has not shown the house of Daniel as schedule property and for that added that as the 1st defendant sold the house of Daniel and he also did not shown the purchaser of the house and he know that on the date of demise of Daniel, the amount of Rs.66,384/- is due for payment of house loan and he did not discharge the said amount. He further admitted as to filing of Succession O.P.No.25/2013 on the file of Hon’ble
Senior Civil Judge’s Court, Narasapuram based on the will dt.12.11.1999 and
he does not know whether paper publication was given on 11.4.2013 for any objections in such Succession OP. He admitted as to granting of Succession
Certificate and he was not added as party and he filed a suit in OS
No.173/2015 on the file of Palakole Courts for cancellation of the said
Succession Certificate and he does not know the stage of the said suit. He further admitted that the 1st defendant is declared as successor as per the
Succession Certificate for the plaint schedule property.
11. During further cross examination of 9th Defendant, he admitted that the terminal benefits of the Daniel are Rs.77,334/- as Provident Fund and
Rs.92,122/- as Gratuity and he did not obtain for succession certificate separately and he did not prayed for making the Succession Certificate issued in OP No.25/2013 as null and void and the said benefits are joint and for separation of shares and he did not addressed any letter to the Commissioner of Provident fund and he did not added the Commissioner of Provident Fund as a party to the suit. During further cross examination by the 10th defendant, it is further brought on record that he had not filed any documentary proof to show that Daniel is his junior maternal uncle and stated that Daniel is having
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High Court, he did not shown the LIC as party in the said writ petition.
12. When the evidence of the 1st Defendant/ K. Keepa Prakash /
D.W.1 is perused, he filed his chief examination affidavit in lieu of his chief examination reiterating the contents of his written statement. In support of his contentions, he got exhibited the certified copy of Will dt.12.11.1999 / Ex.B1 to say that the Daniel executed the same in his favour and the original wedding invitation of 1st defendant / Ex.B2 to say that his marriage is performed by the said Daniel and also got exhibited the Certified Copy of Succession
O.P.25/2013 of Hon’ble Senior Civil Judge, Narasapuram / Ex.B3 to say that he is identified as the Successor to the property of deceased Daniel and he also got published the original paper publication given in respect of such
Succession OP / Ex.B4. During the cross examination of this witness by the 10th defendant, it is brought on record that Chadalavada Daniel is his maternal uncle and he is having one brother by name Aseervadam and got two sisters by name Khandavalli Kamalamma and Jojamma and there is no documentary proof to show that he is the foster son of Chadalavada Daniel and he has no objection if the 10th defendant / LIC releases policy amount as per the orders given by the court. In the cross examination by the 11th defendant, he admitted that he is the foster son of Daniel and the said Daniel executed a will in his favour and also admitted as to sale of property in favour of 11th defendant and delivering the possession there of also.
13. During the cross examination of the said witness by 9th defendant, he stated that he did not added Immanuel as party to the suit in OP
No.25/2013 on the file of Senior Civil Judge’s Court, Narsapuram and he did not added the Provident Fund Commissioner as party in the OP No.25/2013.
During further cross examination by the Plaintiff, he stated that as per the record, it does not disclose the Chadalavada Daniel educated him and there is no documentary proof to show that the said Daniel fostered him and he know about the personal benefits, allowances and retirement benefits of
Chadalavada Daniel and he filed divorce OP against 7th defendant and obtained divorce in the year 2006 and admitted that as per Ex.B2, the 7th
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Kodavalli Halafansu are brought by Chadalavada Daniel through Yarlagadda
Timothi in his presence and except the above no others are present at the time of execution of will and there are no corrections in the will and the executed will was kept under the custody of Daniel and his wife brought the will from the beeruva and gave it to him and he does not know the subsequent registered documents or any other will and stated that he does not know the reason for executing the will in his favour by daniel and he admitted Daniel in the hospital on 3.2.201 and he died in the hospital, which is disclosed through his death certificate and as per Ex.A6 / the online sale deed dt.3.11.2009 obtained from e-seva, 7th defendant sold 74 Sq.Yds of vacant site to one G. Suseela, w/o.
Jayapal on 3.11.2009 reciting that the property under that Ex.A6 is acquired by her on 2.2.2001 through the will executed by Chadalavada Daniel and on 12.09.2008 will executed by Chadalawada Aseervadam and he does not know the details of property covered under the Will executed on 2.2.2001 and he does not know as to execution of such will and he admitted that if Daniel died intestate, the plaintiffs, defendants 1 to 7 are entitled to share in the properties of Daniel and the Succession Certificate is filed for the purpose of death benefits of LIC and in that SOP 25/2013, the plaintiffs and the defendants 2 to 7 are not shown as parties to the suit and he did not issue or paper publication to the plaintiffs and defendants 2 to 7 with regard to the receipt of the death benefits and LIC by him by way of succession certificate and Ex.B4 is issued at the instruction of the Court.
14. During further cross examination, he admitted that the death benefits and LIC amounts from 9th and 10th defendants are claimed by him and also admitted as to issuance of legal notice to 9th defendant not to pay the amounts to 1st defendant and the 10th defendant also not paid the amounts to him on the petition filed by the plaintiff. He further admitted that he sold away the house property to one Ravuri Nagaratnam on 24.10.2016 and in that sale deed he recited that he is selling the house property as per the orders of SOP 25/2013 and further admitted that he filed SOP for the relief of only death benefits of Daniel and he did not file the original will dt.12.11.1999 before the
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Court.
Issue No.1: Whether the plaint schedule properties are be entitled for
partition into 9 equal shares:
15. To determine this issue, prior to deciding the issue as to the details of plaint schedule properties, this court intends to refer the relationship of parties for better understanding, not only from the pleadings, but also from the evidence of parties.
16. In this suit, mainly three families are referred viz., Chadalavada,
Khandavalli and Revu families. One Chadalavada Samuel has two sons and two daughters by name Chadalavada Daniel, Chadalavada Aseervadam,
Kamalamma and Joji Bai and one Khandavalli Israel has three daughters and five sons viz., Vajramma, Annamma, Vaidhooryam, Simonu, Isreal, Sudarson,
Ananda Rao and Santha Rao. The said Kamalamma is given in marriage to one Khandavalli Israel. The Khandavalli Israel and Kamalamma are blessed with two sons and one daughter by name Immanuel (1st Plaintiff), Kepa
Prakash (1st Defendant) and Nirmalamma (2nd Plaintiff). The said Joji Bai is given in marriage to one Revu Rajaratnam. Revu Rajaratnam and Joji Bai are blessed with five daughters and one son viz., Ratnabai (2nd Defendant),
Meerabai (3rd Defendant), Jhansibai (4th Defendant), Vijjullatha (5th
Defendant), Sita Mahalakshmi @ Babu (7th Defendant) and Ravindra Prasad (6th Defendant). Chadalavada Daniel, S/o. Samuel is said to be married the daughter of Chadalavada Aseervadam and Bobamma by name Padma in the year 1978, who subsequently took customary divorce and the said Padma married one B. Surya Rao and thereby her name is B. Padma Mary (8th defendant). On perusal of the entire material on hand, when it is referred that
Daniel and Aseeradam are sons of Chadalavada Israel, and when it is said that the said Daniel married the daughter Aseervadam and Bobamma by name Padma can take place is not clarified by none of the parties, as could be understand by a common prudent man that the said Padma and Daniel becomes daughter and paternal uncle. So also when it is referred that
Kamalamma and Joji Bai are daughters of Chadalavada Daniel, who are the sisters, again when it is said that the son of Kamalamma and Khandavalli
Israel by name Kepa Prakash (1st Defendant) married the daughter of Jojibai
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PJCJ Court, PKL 15 and Revu Rajaratnam by name Sitamahalakshmi (7th Defendant) can take place is also not clarified by none of the parties, as could be understand by a common prudent man that the said Kepa Prakash and Sitamahalakshmi becomes brother and sister. But at the same time, it is to be noted from the material on record that after the customary divorce, the said Chadalavada
Daniel fostered the 1st Defendant is the version of 1st defendant, which is denied by the others. If it is true and correct, then the son of Kamalamma, when becomes the son of Daniel, then there appears nothing strange in getting marriage with 7th Defendant, as they becomes brohter in law and sister in law. In this regard, the 1st defendant/DW.1 exhibited his wedding card /
Ex.B2, said to be got printed and invited by Chadalavada Daniel. But when the said Ex.B2 is perused, it shows that the said Baby is shown as the daughter of the elder brother of Daniel, by name Aseervadam, and the said
Baby is referred as her foster daughter. If it is so, Baby (7th Defendant) is the foster daughter, but not the said Kepa Prakash (1st Defendant).
17. Leaving all the above relationships aside, now when this court travels into the details of plaint schedule properties, employment of deceased
Chadalavada Daniel with the 9th Defendant Bank and taking of an Life
Insurance Policy with the 10th Defendant is no where denied by any party. The death of the said Chadalavada Daniel is also not in dispute. Hence, the Item
Nos.3 and 4 of Plaint Schedule Properties can be inferred that initially they are the properties of the deceased Chadalavada Daniel there being any hesitation. Now coming to the Item Nos.1 and 2 of the plaint schedule properties, it is relevant to note that the father of deceased Chadalavada
Daniel by name Chadalavada Samuel purchased Ac.1.00 cents of land from one Yobu under Doc.No.273/1961 / Ex.A2 situated in RS No.136/2 out of his
Ac.2.41 cents of land in the total extent of Ac.3.86 cents of land in that RS number. After the death of the said Samuel, the said one acre is said to have been devolved to his two sons Daniel and Aseervadam. But the relationships as observed supra shows that apart from these Daniel and Aseervadam, the said Samuel got two daughtes by name Kamalamma and Jojibai. But from the pleadings, it shows that they were given any share or they have not devolved any share after the death of their father Samuel. The said one acre fell equal shares to Daniel and Aseervadam and subsequently, the said Aseervadam sold away his half share i.e., Ac.0.50 cents to one K. Srinivas under Ex.A3
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PJCJ Court, PKL 16 sale deed dt.10.07.1992 under Doc.No.3195/1992. Thereby the property of
Samuel to the extent of Ac.0.50 cents (Item No.1) is said to be in the hands of
Chadalavada Daniel. The said Daniel also purchased property from one U.
Lakshmi under Ex.A1 sale deed dt.5.12.1987 under Doc.No.4617/1987, which is a building in 66 Sq.Yds., (Item No.2). Thereby the Item Nos.1 to 4 of plaint schedule properties can be said that they belongs to the deceased
Chadalavada Daniel. As per the material brought on record, the death of deceased Ch. Daniel is evidently brought on record through Ex.A4 death certificate, apart from the admitted evidence of 9th and 10th defendants, apart from the pleadings of parties who are intending to have interest over the properties of the deceased Daniel. Though both the parties adduced their oral evidence along with documentary evidences, none of the parties to the suit filed any genealogy chart, family members certificates of any of the parties to the suit at any point of time for any one to say that they are in one way or the other way connected to the deceased Chadalavada Daniel, except their oral evidence. Undisputedly, the said deceased Chadalavada Daniel has neither legally wedded wife nor issues. As the parties to the suit claimed that they are Christians, it is the contention of the Plaintiffs that Indian Succession
Act, 1925 applies to them and as the said Daniel died without having any
Legal Heirs, the properties are to be reverted to his siblings under Sec.47 of the said Act. Whereas the 1st Defendant denies that Sec.47 of the said Act is not applicable as one Will has been executed by deceased Chadalavada
Daniel.
18. Now coming to the issue, plaintiffs says that the properties are liable for partition. Whereas the 1st defendant / D.W.1 says that they fell to his share by virtue of a Will said to have been executed by the deceased
Chadalavada Daniel under Ex.B1. It is the contention of D.W.1 that by virtue of the said Ex.B1, he devolved all the plaint schedule properties and to succeed them, he also filed one Succession OP before the Hon’ble Senior
Civil Judge’s Court, Narasapur in SOP No.25/2013 and the same has been
issued by the said Court duly identifying him as the successor of deceased
Daniel for the properties left behind him. Filing of Succession OP is not in dispute by any party to the proceedings. The contention of P.W.1 is that
Ex.B1 is fabricated one and with fraud, DW.1 obtained Ex.B3. Though the plaintiffs took such plea, none of the parties to the suit challenged neither the
O.S.No.113/2022, Dt.10-4-2024
PJCJ Court, PKL 17 genuinty of Ex.B1 nor the validity of Ex.B2 by taking up necessary legal proceedings before the appropriate Court. When it is so, the Succession
Certificate issued by a Competent Court always holds good and it will have its authority in force for the relevant things. When this court perused Ex.B1, the executant executed the said Will for all the 1 to 4 items of Plaint Schedule
Properties. At the same time, when the evidence of DW.1 is also perused, except filing of Exs.B1 and B3, no other witnesses are examined before this
Court. For the mere reason of filing of certified copy of a Will, it cannot be inferred that the said Will is proved beyond doubts. The 1st defendant/DW.1 though relied upon the recitals of Ex.B1, it is not properly proved. It is not the certified copy of judgment to have the presumptions. In the case of Surinder
Pal Sharma v. Surjit Kaur 1, the Supreme Court held that an unregistered will could be proved by leading evidence of its possession and custody by the testator (the person who made the will). The Court also held that the absence of registration did not make the will invalid. Except stating that Ex.B1 is obtained from the Senior Civil Judge’s Court, Narasapur from the proceedings under SOP 25/2013, the defendant has not chosen to prove the execution of
Will in the case on hand. As the Will is not proved in the manner specified, it cannot be said that the 1st defendant failed to prove the Will. But that does not mean that the Succession Certificate obtained by DW.1 is not valid. As the
Succession Certificate issued by a Competent Court is neither declared as null and void nor invalid for any reason either by the same court or by any competent and appellate Court, said Succession Certificate will have its validity and operates as per Law. Under such circumstances, it is to be presumed that 1st Defendant is entitled to have the properties covered under
Ex.B1, which are item Nos.1 to 4 of plaint schedule properties.
19. Even before coming a proper and final conclusion, this court perused the judgment of Hon’ble Apex Court in the case of Smt. Guro .v. Atma
Singh 2, wherein the Hon’ble Apex Court dealt with the mode of proving of a
Will. Admittedly, the DW.1 has not chosen to prove the said Will as per the
Law, except filing the Certified Copy of the same, which is said to be obtained from another judicial proceedings of a Competent Court, in which proceedings, 1 RSA No.654 of 2011 2 1992 Civil Court Cases 329 (SC)
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PJCJ Court, PKL 18 the original is said to have been filed. So, even this Court observed the circumstances and the outcome of the said judgment of Guro 2 , it is no way helpful to the case on hand, in the light of unchallenged Succession Certificate issued in favour of D.W.1 by a competent Court. This court also perused the judgment of the same court in the case of Kartar Kaur & Anr .v. Milkho & Ors 3 , wherein the Hon’ble Apex Court dealt with the aspects of burden of establishing without reasonable doubt as to execution of Will by its propounder. Undoubtedly, herein the case on hand also, the DW.1 failed to prove the genuinty of Ex. B1 and the said judgment is applicable. But keeping in view of the unchallenged Succession Certificate as observed and discussed supra, the same is not applicable. This court also perused the judgment of
Hon’ble Andhra Pradesh High Court in the case of v. Rajamma .v. A. Ram
Reddy & Ors., 4 , wherein it is observed that mere proof of Will as required under Sec.68 of Evidence Act and Sec.63 of Succession Act, by itself would not suffice legal requirements, when suspicious circumstances are alleged and in case of suspicious circumstances, lis ceases to be one between propounder and challenger and the Court shall assume proactive role to pierce events to satisfy itself plausibility of Will. Certainly the observations made by the
Hon’ble Court are to be scrupulously followed by Trial Court. But for the case
on hand, even this court made journey as to deciding the truth or otherwise of either recitals or execution or validity of Ex.B1, certainly it effects the judgment passed by a superior competent court as the said Will is accepted and a
Succession Certificate is issued by the said Court.
20. Therefore, without much more discussion, it can be concluded that as long as the Succession Certificate issued in favour of D.W.1 will be in force without there being any change in it, the execution of the Will cannot be looked into by this Court, as the entire case revolves around such Will and such
Succession Certificate. When such is so, it can safely be concluded that by virtue of Exs.B1 and B3, the properties devolves to D.W.1 only and hence, the plaint schedule properties are not liable for partition.
21. Apart from that, even for the sake of argument, it is said that as the Will is not proved and the property reverts back as per Sec.47 of Indian 3 1997 (1) Civil Court Cases 153 (SC) 4 2014 [Suppl.] Civil Court Cases 835 (A.P.)
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PJCJ Court, PKL 19
Succession Act, the plaintiffs had not adduced any documentary evidences to show that they are the family members / siblings as per the said Sec.47 of the
Act to have share in the said property. At the same time the material shows that the deceased Israel is all siblings are not added as parties to the suit, as per admission of PW1 also. When such is so, here in this aspect also, the plaintiffs failed to prove their case. More over the general principle is that the plaintiff should win or lose his case on the basis of the case set up by him.
22. Thus basing on the above observations and discussions, the
Issue No.1 is answered accordingly, finding that plaint schedule properties are not entitled for partition.
ISSUE No.2:
23. As the plaint schedule properties are not entitled for partition, the plaintiffs are not entitled to seek any share in them and thereby the Issue No.2 is also answered against the interest of plaintiffs.
ISSUE No.3:
24. Needless to say that whenever any dispute arouses as to making of payment, certainly the garnishee has to follow the directions of the Court in whose favour they may be passed, subject to their rules and regulations. With these observations, the Issue No.3 is also answered accordingly.
ISSUE No.4:
25. As the plaintiffs and the 1st defendant made legal battle as to the properties that are left over by the deceased Daniel, for the mere reason of not showing them as party to the proceedings in the Writ Petition filed before the
Hon’ble High Court of Andhra Pradesh, it cannot be concluded that there is no
cause of action in this suit as contended by 10th defendant and hence, the issue No.4 is also answered accordingly.
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PJCJ Court, PKL 20
ISSUE No.5:
26. Thus basing on the above all observations and discussions, at the cost of repetition as the pliant schedule properties under Item Nos.1 to 4 are found not liable for partition and hence the plaintiffs are not entitled to get any relief as prayed for.
In the result, the suit of the plaintiffs is dismissed without costs.
Typed to Dictation by the Stenographer, corrected and
pronounced by me in open court this the 10th day of April, 2024.
Sd/-Sri Pavan Kumar Aka
PRINCIPAL CIVIL JUDGE(Jr.Division),
BHIMAVARAM
FAC/ PRINCIPAL CIVIL JUDGE(Jr.Division),
PALAKOL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANTS: PW.1:Khandavalli ImmanuelDW.1:Khandavalli Kepa Prakash.
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1 : Registration Extracxt of the Registered sale deed dt.5-12-1987 executed by Unikela Lakshmi in favour of Ch.Daniel.
Ex.A2 : Registration Extract of the registered sale deed dt.29-1-1961 executed by Chadalavada Yovu in favour of Ch.Samuel
Ex.A3 Registration Extract of the registered sale deed 10-7-1992 executed by Ch.Ashirvadam in favour of K.Srinivas :
Ex.A4 : Original Death Certificate of Ch.Daniel dt.3-2-2001.
Ex.A5 : Registration Extract of the Registered sale deed dt.24-10-2016 executed by the 1st defendant in favour of 11th defendant. Ex. Ex.A6 :Online copy of sale deed obtained from e-seva dt.03-11-2009
FOR DEFENDANT:
Ex.B1:Certified copy of will dt.12-11-1999 executed by Chadalawada Daniel in favour of 1st defendant
Ex.B2:Original of the wedding invitation of 1st defendant card got printed by Chadalawada Daniel.
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PJCJ Court, PKL 21
Ex.B3:Certified copy of Order dt.23-4-2015 in S.O.P.No. 25/2013 passed by
Honourable Senior Civil Judge Court, Narsapuram.
Ex.B4:Original Paper publication in Sakshi paper dt.11-4-2013 in S.O.P.No. 25/2013 on the file of Honourable Senior Civil Judge Court, Narsapuram.
ID/-SriPavan Kumar Aka
P.C.J.(JD), BVRM.
FAC/P.C.J(JD)Palakol.