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APKR030013132010
IN THE COURT OF THE VII ADDL. DISTRICT JUDGE AT VIJAYAWADA.
Present: Sri Abraham Bandela, VII Addl. District Judge.
Thursday, this the 7th day of May, 2026.
O.S.No.115/2010
Between:
Vakkalagadda Satyanarayana … Plaintiff A N D
1. Vakkalagadda Venkata Radha Krishna Murthy (died)
2. Vakkalagadda Venugopal
3. T.Lakshmi Gayathri
4. Devati Bhaskra Rao
5. Karumuri Lakshmi Kanaka Durga devi Divya
6. Yenugukonda Tejaswi (3rd defendant added as per the orders of Hon’ble High Court in CRP No.1403/2016 dated 2.9.2016) (Defendants 4 to 6 are added as per the orders in I.A No.466/2020
dated 27.1.2022)
... Defendants
This Original Suit, coming before me for final hearing in the presence of Sri I.Subrahmanyeswara Rao, Advocate for the plaintiff; defendant No.1 died; Sri K.Jogeswara Rao, Advocate for defendant No.2; Sri Ram Prasad Sistla,Advocate for defendant No.3; Sri V.Ravindranath, Advocate for defendant No.4 and the defendants No. 5 and 6 remained exparte, and having stood over for consideration till this day, this court made the following:
J U D G M E N T
1) The plaintiff filed the suit for partition of the plaint schedule property into two equal shares according to good and bad qualities, and by metes and bounds and order delivery of separate possession of one such share to the plaintiff, the remaining one share to the second defendant and 2 the first defendant is entitled to the sale consideration of item No.2 of plaint schedule property; to grant permission to apply for final decree in terms of preliminary decree and for appointing commissioner for ascertainment of future profits from the date of suit till the date of delivery of plaintiff’s ½ share; arrears of rent from June, 2009 to May, 2010 at the rate of1/3rd share in Rs.2,500/- per month and for costs of the suit.
2)Plaint pleadings:-
(a) The first defendant is the father of plaintiff and second defendant. The third defendant is the younger daughter of first defendant, fourth defendant is the pre-deceased elder daughter's husband of first defendant and fifth and sixth defendants are the pre-deceased elder daughter's daughters of first defendant. The first defendant died on 18-07- 2020, hence apart from plaintiff, second and third defendant, the fourth, fifth and sixth defendants are also legal representatives of deceased first defendant.
(b) Vakkalagadda Satyanarayana, who is the father of the first defendant after death of his father got partitioned the ancestral properties along with his senior paternal uncle on 1-4-1935 and got it registered in the office of sub-Registrar, Bezwada, bearing document No.1713/1935. The said Vakkalagadda Satyanarayana died intestate leaving behind his wife, and two sons. Subsequently on 30-05-1967 the first defendant, his brother
Vakkalagadda Venkata Pandu Ranga Rao, their mother Vakkalagadda
Durgamba and plaintiff & second defendant being minors represented by their father first defendant got partitioned the properties and executed registered partition deed bearing No.1982/1967 in the office of Sub-
Registrar, Vijayawada. The plaintiff, first and second defendants are in uninterrupted possession and enjoyment of the schedule property from the date of partition. The plaintiff, first and second defendants each are having 1/3 equal share in the plaint schedule property by virtue of the partition deed, dt. 30-05-1967.
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(c) The plaintiff made several demands to first and second defendants to come forward for effecting partition of the schedule property in to three equal shares and for execution of partition deed. Whenever demanded, the first defendant dragged the matter without coming forward to effect partition of the plaint schedule property. Finally, the plaintiff issued legal notice dt.10-05-2010 to the first and second defendants, but the first and second defendants kept quiet even after receipt of the legal notice. The first defendant developed ill mind and trying to alienate the plaint schedule property ignoring the share of the plaintiff. The first defendant collecting rents of Rs.2,500/- from the tenant and enjoying the same as per his wish since June, 2009 onwards without paying plaintiff's 1/3 share of the rent to the plaintiff. During the trial and the cross examination the first defendant made it mentioned that he alone alienated the item No.2 of the plaint schedule property to third parties on long back. The said fact was not established by the first defendant either in written statement or in chief affidavit. Without knowledge of the plaintiff the first defendant alienated the item No.2 of the plaint schedule property. Hence the plaintiff and the second defendant are only the right holder on the item No.1 of the plaint schedule property and both the plaintiff and the second defendant having ½ equal share in the item No.1 of the plaint schedule property and allot the item
No.2 of the plaint schedule property towards share of the first defendant as he alone enjoyed the fruits of the same.
(d) The plaintiff is entitled to seek partition of the plaint schedule property into three equal halves and to be put in possession of his ½ share in the plaint schedule property and also to be given the 1/2 share of the income of the plaint schedule property by the first defendant. Hence the suit for partition of the plaint schedule property into the equal division according to good and bad qualities, and for separate possession of his share in the plaint schedule property and for recovery of the 1/2 share of the income of the plaint schedule property.
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3)Written statement of the first defendant:-
(a)On the other hand, the 1st defendant filed written statement and
additional written statement denied the averments of plaint and inter alia
contended that he is the father of plaintiff and second defendant. The 1st defendant developed the entire family by providing education to the plaintiff and 2nd defendant by satisfying them, and also performed their marriages and they are settled in their life with the support of him and that for welfare of family and for development of plaintiff and 2nd defendant, the 1st defendant borrowed huge amounts to meet family necessities. The plaintiff and 2nd defendant left the joint family and living separately, by the time of leaving the joint family the plaintiff and 2nd defendant relinquished their right over the plaint schedule property in favour of the 1st defendant and they also executed a letter in favour of 1st defendant for the same, thus plaintiff or 2nd defendant have no right over the plaint schedule property. The 1st defendant is a senior citizen aged 80 years and he is suffering from old aged ailments and spent so much amount for his medical expenses. Plaintiff and 2nd defendant never provided any amount to 1st defendant for his medical treatment and look after the welfare of first defendant. Instead of looking welfare of 1st defendant, the plaintiff and 2nd defendant colluded together and filed this suit with a view to harass him. He also performed his daughter’s marriage recently and spent nearly Rs.7,00,000/- towards marriage and that the plaintiff or 2nd defendant did not provide any single pie to their sisters marriage. Plaintiff and 2nd defendant left joint family by leaving 1st defendant to his fate long back and they are not in possession and enjoyment of plaint schedule property. 1st defendant is in possession and enjoyment of schedule property. Plaintiff has no right to demand 1st defendant for partition of property. Plaintiff and 2nd defendant did not share the responsibilities and troubles in the joint family along with the 1st defendant, only they left the joint family as per their wish and will, but they did not provide any amount for family expenses or marriage of 1st defendant's daughter. The 1st defendant borrowed lakhs of rupees for the 5 family necessities and to lead the life efficiently. So, they have no right over the plaint schedule property, as the plaintiff and 2nd defendant never shared the responsibilities and left the family by relinquishing their right over the plaint schedule property. Cause of action is incorrect.
(b)It is further case of 1st defendant in his additional written statement that the plaintiff and 2nd defendant are the sons and 3rd defendant is the daughter of 1st defendant. He provided good education to his children and put them in good position in society, 1st defendant had borrowed huge amounts from others. While the matter stood thus, after getting married both the plaintiff and the 2nd defendant left the family of 1st defendant as early as 26.04.2002 itself and since then they are leading their life independently by leaving their parents and sister to their fate.
Plaintiff and 2nd defendant relinquished their respective shares in the property to the 1st defendant by executing a relinquishment deed dated 26.04.2002 and left the joint family of 1st defendant. Since then the 1st defendant became absolute owner of plaint schedule property and he is in possession and enjoyment of the same without any obstructions and interruptions of whatsoever from any corner. He was enjoying the property by paying taxes and electricity consumption charges to the concerned authorities. 1st defendant, his wife and his daughter (3rd defendant) leading their lives in plaint schedule property. The original relinquishment deed is in possession of 2nd defendant. Plaintiff and 2nd defendant completely abandoned their parents since 2002 by totally neglecting them.
Subsequent to death of his wife he is leading his life with his daughter in plaint schedule property. In the year 2010, this defendant performed the marriage of 3rd defendant by spending more than Rs.7,00,000/-. Neither plaintiff nor 2nd defendant contributed single rupee for the marriage of their sister moreover they even did not attend her marriage. Neither the plaintiff nor 2nd defendant looked after the welfare of 1st defendant and they totally neglected their father. 1st defendant sold away item No.2 of plaint schedule property long back to clear the loans and to meet out other 6 expenses incurred by him for the welfare of his children. In the year 2013, the Municipal Authorities demolished the building existing in item No.1 of plaint schedule property and this fact is fully aware to plaintiff and the defendant No.2.
(c) It is further case of 1st defendant that as plaintiff and 2nd defendant herein are not taking care of him at this old age, the 3rd defendant is looking after day to day needs, and in the circumstances he executed a Will in favour of his daughter (3rd defendant) bequeathing item no.1 of plaint schedule property which is his absolute property. 3rd defendant is also a member of joint family and if at all item No.1 of plaint schedule property has to be divided into shares then she too must be allotted her share. As a matter of fact, since plaintiff and 2nd defendant have relinquished their rights in the joint family property. Defendants 1 and 2 are the only coparcenaries of joint family property. Now the vacant land of item No.1 of plaint schedule property is not fetching any income is in complete possession and enjoyment of him. Neither plaintiff nor other defendants have any right over the property in any manner. Plaintiff and 2nd defendant colluded together and got filed this false case by suppressing real facts that they already relinquished their share in the property in favour of this defendant in the year 2002 itself. There are no bonafidies to the plaintiff to file this suit, thus, plaint schedule property is not liable to be partitioned as 1st defendant is absolute owner of it apart from that item No.2 of plaint schedule property was sold long back and it is not liable to be partitioned.
4)Written statement of the second defendant:-
(a)2nddefendant filed written statement and additional written statement denied the averments of plaint and inter alia contended that
Vakkalagadda Satyanarayana who is the father of 1st defendant, after death of his father got partitioned the ancestral properties along with his senior paternal uncle on 01.04.1935 and got it registered in the Office of
Sub-Registrar, Bezwada bearing document No.1713/1935. Vakkalagadda 7
Satyanarayana died intestate leaving behind his wife, and two sons and then on 30.05.1967 the 1st defendant, his brother Vakkalagadda Venkata
Pandu Ranga Rao, their mother Vakkalagadda Durgamba and himself and plaintiff being minors represented by their father 1st defendant got partitioned the properties and executed partition deed and also got registered the said Partition Deed in the Office of Sub-Registrar,
Vijayawada bearing document No.1982/1967. They are in uninterrupted possession and enjoyment of the schedule property from the date of partition stated above. The plaintiff, himself, and 1st defendant each are having 1/3rd equal share in the plaint schedule property by virtue of above
Partition Deed, and that plaintiff made several demands to him and 1st defendant to come forward for effecting partition of schedule property into three equal shares and for execution of partition deed. Whenever demanded the 1st defendant dragged the matter without coming forward to effect partition of the plaint schedule property, and that plaintiff issued a legal notice dated 10.05.2010 as a final demand to the defendants, but defendants kept quite even after receipt of legal notice. The 1st defendant developed ill mind and trying to alienate the plaint schedule property ignoring the share of plaintiff. The 1st defendant collecting rents of
Rs.2,500/- from the tenant and enjoying the same as per his wish since
June, 2009 onwards without paying plaintiff's 1/3rd share of rent to the plaintiff. It is no longer safe in the legal and personal safety to continue to remain joint with the defendants 1 and 2 are incorrect. Plaintiff and 1st defendant colluded to get wrongful benefit and that 2nd defendant made several demands against them to come forward to effect partition of the properties and dragged the matter. Therefore, the 2nd defendant prays to direct the plaintiff and 1st defendant to come forward for effecting partition.
(b) The 2nd defendant contended in his additional written statement that the 3rd defendant examined as DW2 on behalf of 1st defendant and she was examined along with 1st defendant elaborately the admissions made by them in their cross examination and the plea mentioned in their 8 written statements are totally different. The Will executed by 1st defendant is not valid one and without having rights executant cannot transfer alleged rights under the alleged Will dated 11.03.2011 and same is contrary to the recitals of Partition Deed dated 30.05.1967, and denied the genuinity and validity and legality of the alleged Will dated 11.03.2011 is tainted with illegality unethical suspicious pleasureful and threaten circumstances mind. The 3rd defendant taking advantage of confuse traumatize uncertainty ambiguity, unclarity, unsoundness mind of deceased the 1st Defendant have got it created with false frivolous recitals.
The deceased, Vakkalagadda Venkata Radhakrishna Murthy was not in a position, rational, valid knowledgeful judgement by the time of alleged Will
dated 11.03.2011 and he was not in position to assess result of his actions
as such the said alleged Will is not genuine, valid, legal, enforceable and its recitals mentioned by the 1st defendant in his written statement as well as in his deposition recitals are contrary and same is suspicious.
(c)It is further case of 2nd defendant that the claim of 3rd defendant is barred by limitation and the 2nd defendant has got equal undivided joint share with 1st defendant defendant and plaintiff as per
Partition Deed dated 30.05.1967 bearing document No.1982/1967. In all these days, the 3rd defendant is sole responsible person to dragon the proceedings and increase litigation over plaint schedule properties after filing of main suit and both defendants 1 and 3 colluded. As per his whims and fancies, the 1st defendant alienated the item No.2 of plaint schedule property to 3rd parties same alienation is not binding and that 3rd defendant has no rights in the plaint schedule properties as alleged coparcener or basing on the alleged Will. The alleged photocopy of document dated 26- 04-2002 filed by 3rd defendant is created, fabricated and forged one and cleverly concocted the bank loan story, and that the 2nd defendant never executed relinquished his rights in plaint schedule properties. 3rd defendant has no legal capacity to claim any rights over plaint schedule property. 3rd defendant has no right to take inconsistent pleas from the 9 date of deposing as witness on behalf of 1st defendant till to day and same are not permissible as per law. Therefore, the 2nd defendant prays to reject the alleged claim of 3rd defendant in her written statement and also defendants 3 to 6 have no rights in the plaint schedule property and they are unnecessary parties to the suit proceedings and they are nothing to do with the plaint schedule properties.
5)Written statement of the third defendant:-
(a) The 3rd defendant filed her written statement denied the averments of plaint except the relationship between the parties. She inter alia contended that the 1st defendant brought the entire family by providing a good life to the plaintiff, defendants 2 and 3 and performed their marriages and thus 1st defendant discharged his duties as a dutiful father and head of the family and as a result the plaintiff, defendants 2 and 3 are well settled in their own lives today. The most heart wrecking issue is that the plaintiff and 2nd defendant have colluded among themselves and got filed the present suit by hiding the true facts and further by fabricating many treacherous allegations forgetting all the efforts put in by 1st defendant in raising the plaintiff, defendants 2 and 3 as they have sketched up vicious plans to grab hold the plaint schedule properties by even degrading themselves to the standard to mentally harass the 1st defendant. She further contended that for the welfare and development of the family and to meet the necessities of family including plaintiff and 2nd defendant, the 1st defendant had to borrow many a times huge amounts from others for the development of plaintiff, defendants 2 and 3.
(b) It is further contention of 3rd defendant that plaintiff and 2nd defendant have left the family of 1st defendant by relinquishing their rights, responsibilities and liabilities of the family of 1st defendant as early as 26.04.2002 itself and since then the plaintiff and 2nd defendant are living their own life with their own families, separately from the 1st defendant.
Ever since then the 3rd defendant was looking after the welfare and day to day needs of 1st defendant and his wife, till the death of 1st defendant wife, 10 and even after the death of wife of 1st defendant, the 3rd defendant looked after the welfare of 1st defendant even till date. Plaintiff and 2nd defendant did not even visit the 1st defendant at any point of time for looking the welfare of 1st defendant, but the 2nd defendant visited the house whenever he felt necessary to take forward their ulterior motives of filing the present suit. She is only person to look after the 1st defendant even till date, and the plaintiff and 2nd defendant have not paid a single rupee for any of the expenses of 1st defendant, and further they have colluded among themselves only to grab hold the plaint schedule properties by all means and also they did not contribute any such amount for getting the 1st defendant treated or his medical expenses which are borne by 3rd defendant and also the father of 3rd defendant (1st defendant) spent over
Rs.7,00,000/- (Rupees Seven Lakhs only) by her father apart from the expenses borne directly by her for her marriage which took place in the year 2010, and either plaintiff or 2nd defendant did not attend the marriage of 3rd defendant and further they did not pay any single rupee for the marriage of 3rd defendant since they have separated from the family of 1st defendant since 2002 itself. The 1st defendant was in peaceful possession of item No.1 of plaint schedule property along with 3rd defendant. The building in item No.1 of plaint schedule property was completely demolished in the year 2013 itself by the Municipal Authorities and since 2013 itself no rents are being collected by 1st defendant.
(c) It is further contention of 3rd defendant that the plaintiff and 2nd defendant have started relinquished their relation with the family of 1st defendant as early as 1998 itself, and since 2002 the plaintiff and 2nd defendant have completely abandoned the family of 1st defendant, and the plaintiff directly stopped contacting the 1st defendant, and the 2nd defendant acted like a spy and messenger to carry the information of happenings in the family of 1st defendant, and finally the plaintiff and 2nd defendant have come up with the most heinous plan by filing this suit.
Ignoring her rights Ex.A1 could not be executed and as such Ex.A1 even if 11 assumed to exist in real is not binding on 3rd defendant. 3rd defendant further contended that if the plaint schedule properties were to be divided into shares, then 3rd defendant must be allotted one share along with the other coparceners since the 3rd defendant too was admittedly member of the joint family. Ever since the complete abandoning of 1st defendant by the plaintiff and 2nd defendant, the complete welfare of 1st defendant was being looked after by 3rd defendant and even till date the entire welfare including the medical expenses, living expenses, etc., of 1st defendant are being taken care of by 3rd defendant and her husband. 1st defendant executed a registered Will in favour of 3rd defendant in the year 2011 bequeathing item No.1 of plaint schedule properties to 3rd defendant.
Taking advantage that the 1st defendant grew old by age and suffering from health problems and age related complications, the plaintiff and 2nd defendant brought up this spurious litigation by trying to drag plaint schedule properties into a lis thereby grab the plaint schedule properties.
Item No.2 of plaint schedule property was sold by 1st defendant much earlier itself the complete details of which are not even known to her, but she came to know that since the 1st defendant had to secure maintenance to the plaintiff, defendants 2 and 3 and the wife of 1st defendant, the item
No.2 of plaint schedule properties were sold out. The greed of plaintiff and 2nd defendant grew to such an extent that they even resorted to litigate item No.2 of plaint schedule property which they know were sold away long back for their welfare and maintenance itself with malicious intentions. Hence, the 3rd defendant prays to dismiss this suit with exemplary costs.
6)Written statement of the fourth defendant:-
The 4th defendant filed his written statement denied the averments of plaint except the relationship between the parties. He inter alia contended that Vakkalagadda Satyanarayana who is the father of 1st defendant after death of his father got partitioned the ancestral properties along with his senior paternal uncle on 01.04.1935 and got it registered in the office of 12
Sub-Registrar, Bezwada, bearing document No.1713/1935. Vakkalagadda
Satyanarayana died intestate leaving behind his wife and two sons.
Subsequently on 30.05.1967, the 1st defendant, his brother Vakkalagadda
Durgamba and plaintiff and 2nd defendant being minors represented by their father, 1st defendant got partitioned the properties and executed partition deed, and also got registered the said Partition Deed in the office of Sub-
Registrar, Vijayawada bearing document No.1982/1967. Plaintiff and defendants 1 and 2 are in uninterrupted possession and enjoyment of schedule property from the date of partition and they each are having 1/3rd equal share in the plaint schedule property by virtue of the Partition Deed
dated 30.05.967. Plaintiff with malicious intention failed to mention the wife
of 4th defendant as a party to the suit at the time of filing of suit to avoid her share. However, 4th defendant’s wife is entitled one such share from the share allotted to Vakkalagadda Venkata Radhakrishna Murthy the same share has to be allotted equally to all the legal heirs of wife of 4th defendant.
Therefore, the defendants 4 to 6 are entitled one such share of property of plaint schedule properties. Therefore, the 4th defendant prays to pass decree with exemplary costs for partition of plaint schedule properties and allot one such share to his deceased wife and same has to be allotted equally to all her legal heirs.
7)On the above pleadings, the following issues were settled for trial:-
I. Whether the plaintiff is entitled for partition as prayed for?
II. Whether the plaintiff is entitled for his share of rental amount as
prayed for?
III. Whether the plaintiff and second defendant relinquished their
rights in the plaint schedule property?
IV. Whether there is cause of action to file the suit?
V. To what relief?
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The following additional issues were framed on 20.06.2018.
1. Whether the partition deed dated 30.05.1967 is true, valid and binding on D.3?
2. Whether the Will said to have been executed by D1 in favour of D3
in the year 2011 bequeathing item No.1 of the plaint schedule property
to D3 is true, valid and binding on the plaintiff and D2?
8)On behalf of the plaintiff, Pws 1 and 2 were examined and
Exs.A1 to A5 were marked. On behalf of defendants, Dws 1 to 8 were examined and Ex.B1 was marked.
9)Heard both sides. Plaintiff filed written arguments.
10)ISSUE NO.4:-
The contention of the defendant No.1 is that the suit is not maintainable, as the plaint does not disclose any valid cause of action, as the plaintiff and the defendant No.2 have already abandoned their rights by relinquishment as well as by leaving the family, as such they are having no right in the suit schedule property. And it is his further contention that the plaintiff has no subsisting right over the suit schedule properties and the plaintiff failed to plead about his existing right in the suit schedule property with regard to his possession and enjoyment, as such the plaint is liable to be rejected.
11)Per contra, the contention of the plaintiff is that the suit schedule properties continue to remain joint and undivided among the parties ie., the plaintiff, defendant No.1 and defendant No.2, as such the plaintiff is entitled to seek partition at any point of time and the defendant
No.1 refused to allot the legitimate share of the plaintiff, thereby giving raise to a recurring and continue cause of action.
12)It is a settled principle of law that in a partition suit the cause of action consist of existence of joint property, entitlement of the plaintiff to a share therein, and denial or refusal by the defendants to effect partition or recognize such share. A meaningful reading of the pleadings discloses that the plaintiff specifically pleaded that the suit schedule properties are joint 14 family properties and that despite repeated demands, the defendants failed to effect partition and separate possession of the plaintiff share. In view of the circumstances this court is opined that the facts constituting a cause of action as every co-owner is presumed to be in joint possession unless ouster is specifically established. The right to seek partition is a continuing and recurring right so long as the properties remained undivided. Hence, the contention of the defendants that there is no cause of action cannot be accepted merely because they dispute the plaintiff’s entitlement. The plea relating to prior partition, relinquishment, ouster or exclusive possession involved mixed question of fact and law which require the evidence and trial. Accordingly, this issue is answered in favour of the plaintiff as there is exists of cause of action.
13)ISSUES 1 TO 3, ADDL.ISSUE No.1:- :-
The contention of the plaintiff is that the Vakkalagadda
Satyanarayana, who is the father of the first defendant after death of his father got partitioned the ancestral properties along with his senior paternal uncle on 1.4.1935 and got it registered vide document No.1713/1935. The said Vakkalagadda Satyanarayana died intestate leaving behind his wife and two sons. Subsequently on 30.05.1967 the first defendant, his brother/
Vakkalgadda Venkata Pandu Ranga Rao, their mother/ Vakkalagadda
Durgamba and plaintiff and second defendant being the minors represented by their father/first defendant got partitioned the properties and got executed partition deed and the same was registered vide document
No.1982/1967 under original of Ex.A1. The plaintiff, first and second defendants are in uninterrupted possession and enjoyment of the suit schedule property from the date of the said partition and having 1/3rd equal share each by virtue of the said deed.
14)The further contention of the plaintiff is that on several demands the defendants are not co-operate for effecting partition of the schedule property and the first defendant dragged the matter without coming forward for amicable partition and then he got issued legal notice 15 under Ex.A2 dated 10.05.2010. The first and second defendants kept quiet even after receipt of the legal notice. Initially the suit was filed for partition of item Nos. 1 and 2 of suit schedule property for partition of 1/3rd share to the plaintiff, defendant No.1 and defendant No.2. During the trail the first defendant in his cross-examination stated that, he alone alienated the item
No.2 of the suit schedule property to third parties on long back without knowledge of the plaintiff and the first defendant. Hence, the plaintiff and the second defendant are only having right on the item No.1 of the plaint schedule property and both of them having ½ equal share in it and to allot the item No.2 of the plaint schedule property towards share of the first defendant as he alone enjoyed the fruits of the same etc.
15)The contention of the first defendant is that plaintiff and the second defendant relinquished their respective shares in the property to the first defendant by executing a relinquishment deed dated 26.4.2002 and left the joint family since then the first defendant became absolute owner of the plaint schedule property and he is in possession and enjoyment of the same without any obstruction and interruptions of what so ever from any corner.
And he further contended that in the year 2010, he performed the marriage of third defendant by spending more than Rs.7 lakhs, neither the plaintiff nor the second defendant contributed single rupee for the marriage of their sister, moreover they even did not attend her marriage. As such he sold away the item No.2 of plaint schedule property long back to clear the loans and to meet out other expenses incurred by him for the welfare of his family.
The plaintiff and defendant No.2 are fully aware of this fact, and he further contend that in the year 2013 the Municipal Authorities demolished the building existing in item No.1 of plaint schedule property as it was dilapidated condition, as such no rents are being collected. And his sons i.e., plaintiff and second defendant were not taking care of him and third defendant is looking after day to day needs and in that circumstances he executed a Will in favour of his daughter ie., third defendant bequeathing the item No.1 of the plaint schedule property in her favour.
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16)And he further would contend that defendant No.3 is also a member of joint family and if at all item No.1 of the plaint schedule property has to be divided into shares, then she too must be allotted her share. As a matter of fact, since plaintiff and defendant No.2 have relinquished their right in the joint family property, as such they are not entitled to get any share in the suit schedule property etc.
17)The contention of the defendant No.2 is that even he admitted the contention of the plaintiff and he submitted that the plaintiff and first defendant without coming forward, dragged the matter and when he insisted to come forward the plaintiff filed the present suit. During the trial the defendant No.2 filed additional written statement and would submit that the defendant No.2 have got equal undivided joint share with the first defendant and plaintiff as per partition deed under Ex.A1. The first defendant alienated the item No.2 of the plaint schedule property to third parties and the said alienation is not binding. The claim of the third defendant is barred by limitation. The third defendant have no rights in the plaint schedule properties as alleged co-parcener or basing on alleged Will.
The alleged document photostat copy dated 26.4.2002 filed by D3 is created, fabricated and forged one and prayed to reject the claim of third defendant and support the contention of the plaintiff to make partition of the item No.1 of the suit schedule property and to allot the same to the plaintiff and to him.
18)The contention of the third defendant is that she is only person to look after the welfare of the defendant No.1, and the plaintiff and the defendant No.2 have not pay a single rupee for any expenses of the defendant No.1 and they did not contribute any amount for the medical expenses to the defendant No.1 which are borne by the defendant No.3.
And at about Rs.7 lakhs has been spent by defendant No.1 for the marriage of defendant No.3. Defendant No.1 was in peaceful possession of the plaint schedule property along with the defendant No.3 and that the item
No.1 of the plaint schedule property was completely demolished in the year 17 2013 itself by the municipal authorities and since no rents are being collected by the defendant No.1. The defendant No.2 and plaintiff have started relinquishing their relation with the family of defendant No.1 as early
as 1998 itself, and since 2002 the plaintiff and defendant No.2 have
completely abandoned the family of the defendant No.1. And the defendant
No.3 has looked after the defendant No.1, as such circumstances the defendant No.1 executed a registered Will in favour of defendant No.3 bequeathing item No.1 of the plaint schedule property and to meet the expenses defendant No.1 has sold out the item No.2 of the property etc.
19)The contention of the defendant No.4 is that the plaintiff with malicious intention filed the suit and intentionally failed to mention the wife of the defendant No.4 as a party to the suit at the time of filing of the suit to avoid her share. However, his wife is entitled one such share from the share allotted to defendant No.1 and the same share has to be allotted equal to all the legal heirs of the wife of the 4th defendant, as such defendants 4 to 6 are entitled on one such share in the plaint schedule property.
20)To prove the contention of the plaintiff, the plaintiff got examined himself as PW1 and he reiterated the material facts of the plaint in his chief-examination affidavit. Through him Exs.A1 to A4 are marked.
Ex.A1 is the certified copy of partition deed dated 30.05.1967 bearing document No.1982/1967. Ex.A2 is the notice dated 10.05.2010. Exs.A3 and
A4 are postal acknowledgments dated 13.5.2010. During the cross- examination the witness stated that “We the children of our parents lived
with our father till December, 2002. Thereafter D1 and we were not
living together.” And he also admitted that his mother, his sister and D1 lived together ever since 2002 in the plaint schedule house. And he also stated that he did not render financial assistance to the defendant No.1. The contention of the defendant No.1 is that he sold away the item No.2 of the schedule property for his financial needs as he incurred money for the marriage of his daughter and his medical expenses. Moreover the said sale deed is not questioned or challenged by anyone of the children of the 18 defendant No.1. PW1 denied the suggestion that as he relinquished all his rights in the suit schedule property way back in the year 2002. The cross- examination of DW1 by the counsel for defendant No.2 also support his version that “There is no proof evincing that my two sons abandoned their right of share in the suit property except my oral testimony.” And also he stated that the second defendant and the plaintiff did not execute registered relinquishment deed in regard to the suit property.
21)The plaintiff would contend that based on the registered partition deed dated 30.05.1967 under original of Ex.A1 which confers 1/3rd share each to the plaintiff, defendant No.1 and defendant No.2. The defendant No.1 during the cross-examination by the counsel for the plaintiff has stated that his younger brother and himself are only parties to the partition in 1961 and bearing document No.1982/1967 and he admitted that as per the said document his two sons along with him have got right in the properties mentioned therein. The another contesting defendant No.3/DW2 during the cross-examination by the counsel for the plaintiff has categorically admitted that “It is true as per the plaint, the plaintiff sought
for partition of the plaint schedule property which was devolved under
the registered partition deed to the defendants and the plaintiff ie.,
under Ex.A1 partition deed.” She also admitted that the contents of Ex.A1 executed between his father and her younger paternal uncle. And she categorically admitted that “It is true I did not take any steps to cancel the Ex.A1 till today.” On perusal of the material available on record especially the contention and the evidence of defendant No.3/DW2 it goes to show that she has admitted the execution of Ex.A1 and she did not take any steps to cancel the same, as such it is binding on her.
22)The partition deed under Ex.A1 is admitted by D1/DW1 in his cross-examination as having been executed among himself, his brother, his mother and his minor sons ie., plaintiff and defendant No.2. This admission unequivocally establishes that the plaintiff, D1 and D2 each hold 1/3rd undivided share in the plaint schedule property. No challenge 19 for cancellation or declaratory relief has ever been sought against original of Ex.A1 by any defendant, including D3, who claims under a Will. Hence,
Ex.A1 remains binding and operative. The DW2/defendant No.3 alleges that plaintiff and defendant No.2 executed a relinquishment deed. But the alleged relinquishment deed never produced before this court and fails to meet the requirements in accordance with law. As per the contention of the D3 the documents was allegedly taken away by D2 in 2008, but no steps were taken to recover or enforce it until the suit was filed and no evidence adduced to prove the same.
23)Ex.A1 confirms equal shares among plaintiff, D1 and D2. It is an admitted fact that as per the available material as well as the own admission of D1 in his cross-examination that the sale of item No.2 without consent and inability to recall details undermining credibility. D3’s testimony is also not supporting the version of D1. Admittedly, both the items in the suit schedule property belongs to the defendant No.1, plaintiff and defendant No.2 by virtue of Ex.A1. The item No.2 of the property was sold away to meet the expenses incurred by the defendant No.1 being the head of the family to perform the marriage of his daughter and other expenses.
The plaintiff and defendant No.2 never contribute any single pie to the welfare of the family, as such the defendant No.1 sold away the said property. At present, after amendment of the pleadings and he would submits that he seeks partition of the half share in the item No.1 of schedule property to him and remaining half share to the defendant No.2 by allotting the item No.2 share to the deceased defendant No.1.
24)In support of the plaintiff, one A.Purnachandra Rao, who is a third party to the suit proceedings examined as PW2, and he stated about the partition with regard to original of Ex.A1 and he further stated that when plaintiff made demanded the defendants to come forward for the effecting partition of the schedule property, for which, defendant No.1 did not accept for the same. During the cross-examination PW2 stated that the plaintiff is his brother-in-law by courtesy and he did not sign the partition deed and he 20 did not know the facts therein. And he also stated that he does not know the quantum of rent and about the details of the schedule property, who looked after the affairs therein. And he also stated that he does not know about the family affair of the plaintiff and the defendants which were happened in the month of September, 2010. With regard to the rents either
PW1 or PW2 both could not file any documentary evidence or any evidence
before the court and the plaintiff is failed to prove his contention as he is
entitled to get the rents from the defendant No.1. On the other hand the contesting defendants ie., D1 and D3 have stated that plaintiff and second defendant have left the family long back and D1 alone look after his family affairs and D1 had spent nearly Rs.7 lakhs towards the marriage of D3. In support of the version of D1, DW2/Vakkalagadda Githa Rani was examined and she stated that the plaintiff sought for partition of the plaint schedule property which was devolved under the registered partition deed to the defendants 1 & 2 and the plaintiff ie., under Ex.A1/partition deed. And their further contention is that the item No.1 of the schedule property was in dilapidated condition, as such it was demolished by the Municipal
Authorities. And she also denied the suggestion that her brothers did not execute any relinquishment deed whatsoever.
25)DW3/K.Ramesh Babu, who is a third party to the suit proceedings has stated that D1 borrowed an amount of Rs.4 lakhs from him for his medical treatment and to perform his daughter’s marriage. During the cross-examination he stated that he does not know the details of the suit and moreover he did not file any piece of paper, as he lent amounts to the defendant No.1. His evidence is no way useful to prove their contention.
The evidence of DW4 was eschewed.
26)DW5/P.Sarojani stated that first defendant borrowed an amount of Rs.4 lakhs in the year 2010 for his daughter’s marriage and his house repairs. During the cross-examination she stated that there is no proof whatsoever evincing that there was a cash of Rs.4 lakhs in hand with her and also she admitted that there is no proof evincing that she gave money 21 to D1. The evidence of DW3 and 5 did not support their version as they lent amounts to the defendant No.1 as they failed to produce the relevant material. However, it is an admitted fact that plaintiff and defendant No.2 did not contribute any amounts to the welfare of the family as well as for the marriage expenses incurred by the defendant No.1, as such this court is of humble opinion that the defendant No.1 sold away item No.2 of the property to meet his expenses for the welfare of his family. And plaintiff did not challenge the said sale deed, as such it is only for the family needs, the defendant No.1 sold away the said property. With regard to the remaining extent of the property ie., item No.1 the plaintiff seeks half share and remaining share to the defendant No.2.
27)The evidence of defendant No.2 as DW6 goes to show that he has no objection to partition the plaint schedule property into three equal shares and to allot one such share to him. Ex.A5/three photos are marked through him during the cross-examination by the counsel for the plaintiff.
And he admitted that the said photographs are relating to plaint schedule property of item No.1 and he denied about execution of relinquishment deed. With regard to rental amounts as claimed by the plaintiff, the witness is clearly stated that there is no written document to show that who are tenants and the rent over the plaint schedule property. He also admitted that “It is true Vijayawada Municipal Corporation demolished the building after filing of the suit.” So, the contention of the plaintiff is not tenable with regard to rents in respect of the item No.1 of the schedule property.
28)DW7/N.Venkateswara Rao, who is a third party to the suit has stated that since 2002 the defendant No.3 has been looking after the welfare and maintenance of D1, as the plaintiff and defendant No.2 have abandoned D1 and they have relinquished their rights. During the cross- examination he stated that he does not know personally whether his second son left the house in connection with his employment or whether he resided in same village.
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29)DW8/B.Babji, who is a third party to the suit has stated that he had acted as second attestor of the Will executed by the first defendant in favour of third defendant and the same was registered vide document
No.76 of BK-III/2011. During the cross-examination he stated that nearly he has attested 20 documents as attestor in the Registrar office and he has signed two signatures as identifying witness before SRO pertaining to this document. To prove the alleged Will under original of Ex.B1, he was examined but his evidence in cross-examination it goes to show that he was identifying witness. During arguments, the counsel for the plaintiff filed written arguments and relied the following citations:-
(i) Bathula Anasuya & Anr. Vs. Bathula Rayudu & Ors. [AIR 1989 AP 290]…. a registered partition deed executed among family members is binding unless challenged and set aside by a competent court.
(ii) Sh.Jai Singh vs. Sh.Inder Singh, Delhi High Court [2022]… it was held that oral relinquishment or unregistered documents are not valid to extinguish rights in immovable property.
The alleged relinquishment deed in this case is unregistered, lacks attestors, and was never produced before this court. D3’s testimony admits it was allegedly taken away and never shown until suit filing rendering it inadmissible and legally ineffective.
(iii) Ranganayakamma & Anr. vs.K.S.Prakash (dead) by Lrs & Ors., [2008 AIR (SCW) 6475]… The burden lies on the party asserting relinquishment to prove knowledge, intent and ratification.
D3 failed to produce the original or prove the execution of the relinquishment deed by plaintiff and defendant No.2.
(iv) Sk.Golam Lalchand vs. Nandu lal Shaw & Ors., [AIR 2024 SC 4193] … The Hon’ble Supreme Court held that a co-owner cannot alienate joint property without consent of other co-owners and such alienation is not binding on non-consenting co-owners.
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30)On perusal of the evidence available on record it is an admitted fact that according to Ex.A1 the plaintiff and defendant No.1 and defendant
No.2 are having right over suit schedule property. Admittedly the said partition deed was executed excluding the two daughters of the defendant
No.1. The parties would contend that by the date of execution of Ex.A1 the two daughters ie., D3/DW2 and the wife of DW4 was not born, as such they were not made as a parties to the Ex.A1. However, they are entitled to get the share of defendant No.1. One of the properties covered under the partition deed ie., item No.2 of the schedule property was alienated by D1.
Thereafter the disputes arose among them regarding the remaining properties ie., item No.1 of the schedule property. The plaintiff would contend that he is entitled to half share and remaining half share will be allotted to the defendant No.2 and the property under item No.2 which was sold by the defendant No.1 will be allotted as the share of D1. D3/DW2 would contend that by virtue of the original of Ex.B1 she has entitled to get the right among the item No.1 of the plaint schedule property.
31)Admittedly, any of the parties did not challenge the partition deed as well as sale deed which was executed by the defendant No.1 in respect of item No.2. With regard to item No.1, by virtue of Ex.A1 the plaintiff, defendant No.2 and defendant No.1 are entitled to get their respective shares. The share of defendant No.1, who was died during pendency of the suit will be allotted to his children ie., plaintiff, defendants 2 and 3 and the wife of D4. The defendant No.2/DW3 could not prove the original of Will under Ex.B1 in accordance with law, as such this court can ignore the Will. Even if it is considered the defendant No.1 had no right to alienate the entire property without the consent of plaintiff and defendant
No.2 by virtue of partition deed under original Ex.A1. Admittedly, he had alienated item No.2 to the third parties for the welfare of his family but with regard to the bequeathing the property of item No.1 in favour of D3 alone is not valid under law, as such his share can be easily divided to all his legal heirs.
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32)With regard to rents claimed by the plaintiff there is no material placed by him as to particulars of the tenants and rent and he himself admitted that he does not know about the said fact. The material further goes to show that as the property was in dilapidated condition the Municipal authorities has demolished the same, as such the claiming of rents does not arise. The partition deed Under original Ex.A1 is true, valid and binding on the parties. Accordingly, these issues are answered.
33)ADDL.ISSUE No.2:-
The contention of the defendant No.1 and 3 is that as the plaintiff and defendant No.2 abandoned and left the family of D1 and the joint family and the defendant No.3 had looked after the welfare of D1 and she used to reside with D1. To meet the medical expenses and for the performance of the marriage of D3, D1 had sold away the item No.2 of the schedule property and thereafter he had executed a Will under original of Ex.B1 in favour of D3 bequeathing the property in item No.1 of schedule property to her. Their contention is that plaintiff and defendant No.2 have relinquished their rights in the property, as such D1 alone got right over the properties mentioned under Ex.A1.
34)DW1 in his cross-examination by the counsel for D2, he stated that there is no proof that his two sons abandoned their right of share in the suit property except his oral testimony. And also he stated that the second defendant and the plaintiff did not execute registered relinquishment deed in regard to the suit property. DW2 has stated that plaintiff and defendant No.2 let the house and relinquished their right in the suit property. But there is no documentary proof to show that the plaintiff and defendant No.2 have relinquished their right in the suit schedule property. And she would contend that the Will under original of Ex.B1 was executed in favour of her. To prove the said Will DW8 was examined. During the cross-examination DW8 stated that “I have signed two signatures as identifying witness before the
SRO pertaining to this document.” He also stated that he has attested in 20 documents as attestor in the Registrar office. The contention of the 25 plaintiff as well as defendant No.2 is that DW8 is a stock witness. And the registration of the Will may raise a circumstance in favour of it’s genuineness, but such circumstance alone cannot take the place of legal proof required under the law. Further, the burden lies heavily upon the propounder to dispel all suspicious circumstances surrounding the execution of the Will. In the absence of cogent evidence regarding the mental condition of the executant, voluntary nature of execution, and proper attestation, the court cannot accept the Will as duly proved merely because it bears registration endorsement.
35)DW2/defendant No.3 clearly admitted in her cross-examination that the original Will dated 11.03.2011 was handed over to her by her deceased father/D1 10 days prior to his death. Despite this she failed to produce the same before this court and instead of filing the original she filed a certified copy under Ex.B1. No explanation was offered for the non- production of the original, nor was any application filed under Section 65 of the Indian Evidence Act to justify reliance on secondary evidence.
36) So, this court is of the considered view that the defendant
No.3/DW2 failed to discharge the burden cast upon her to prove the registered Will in the manner required under law. Consequently, no right, title or interest can be claimed solely on the basis of the said unproved Will.
On the facts and circumstances of the case, this court relied the citation
Dhani Ram (D) Thr. Lrs. vs Shiv Singh [2023 LiveLaw SC 862]. In paras
No.9 and 21.
9. The Trial Court rightly opined that mere registration of the Will would not be sufficient to prove its validity, as its lawful execution necessarily had to be proved in accordance with Section 68 of the Indian Evidence Act, 1872 (for brevity, ‘the Evidence Act’), and Section 63 of the Indian Succession Act, 1925 (for brevity, ‘the Succession Act’). Thereupon, the Trial Court found that the evidence of the attesting witnesses to the Will, viz., Lok Nath Attri (DW-2) and Chaman Lal (PW-4), was contradictory as they did not speak to the same effect. In these 26 circumstances, the Trial Court held that valid execution of the Will was not proved.
21. It is well settled that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness. The observations of this Court in Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another 1, which were referred to by the Himachal Pradesh High Court, are of guidance in this regard and are worthy of extraction. These observations read as under: “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 ……… Therefore, the mere fact of registration may not by itself be 27 enough to dispel all suspicion that may attach to the execution and AIR 1962 SC 567 = [1962] 3 SCR 195 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.”
37) In the present case, though the defendant No.3/DW2 relied upon a registered Will under original of Ex.B1, no satisfactory evidence was adduced to prove its execution in accordance with law. However, it may be happened, as per Ex.A1 the defendant No.1 having 1/3rd share along with plaintiff and the defendant No.2 in respect of both the items of suit schedule property. Admittedly he sold away the item No.2 of the plaint schedule property without the consent of the plaintiff and defendant No.2 for his family welfare. In such is the case, the defendants could not establish their contention as the plaintiff and defendant No.2 relinquished their right, as such the execution of Will by defendant No.1 in favour of defendant No.3 is not proved, as such it is not binding on plaintiff and defendant No.2. Accordingly, this additional issue No.2 is answered.
38)Admittedly, the original of Ex.A1/partition deed was executed having rights to the plaintiff, D1 and D2 and no rights acquired to the daughters, as they were not born as on the date of the execution of the partition deed. One of the properties covered under the partition was subsequently alienated by the D1. The plaintiff contents that he is entitled to half share in all the properties as against his father/D1 and other son/D2. The said partition deed was not challenged by any of the daughter and also the alienation property ie., item No.2 was also not challenged by any of the parties as well as plaintiff. In view of the circumstances, this court is of opinion that the partition deed can at best be treated as dividing the properties among the father and the two sons to an extent of 1/3rd share each. Thereafter, the 1/3rd share of the father is liable to be equally 28 divided among all his Class-I heirs namely the two sons and two daughters as during pendency of the suit, the father/D1 died.
Consequently his 1/3rd share in the suit schedule property devolved upon his legal heirs under Section 8 of the Hindu Succession Act. D1 left behind two sons i.e., plaintiff and defendant No.2 and two daughters i.e., [D3 and the wife of D4] each succeeds equally to the father’s/D1’s 1/3rd share.
Therefore, each daughter becomes entitled to 1/12th share in the suit property, while each son becomes entitled to his original 1/3rd share together with an additional 1/12th share out of the father’s/D1’s estate.
Accordingly, the shares are declared as follows:- (1) Plaintiff (son) - 5/12th share (2) Defendant No.2 (son) -5/12th share (3) Defendant No.3 (daughter)-1/12th share (4) Deceased daughter/wife of D4-1/12th share.
Hence, a preliminary decree shall be drawn accordingly.
39)ISSUE No.V:-
In the result, the suit is preliminary decreed in part. The plaintiff is entitled for partition of item No.1 of the plaint schedule property in to 12 equal shares and to allot 5/12th share to the plaintiff; 5/12th share to the defendant No.2; 1/12th share to the defendant No.3 and 1/12th share to the defendant Nos. 4 to 6 (defendant No.4 to 6 are the legal representatives of the deceased daughter of defendant No.1) with separate possession by metes and bounds as per their respective shares. The rest of the claim is hereby dismissed. In the facts and circumstances of the case and in view of the relationship between the parties, the parties are directed to bear their own costs. For filing application under Order 20 Rule 18 CPC for final decree. Call on 30.06.2026.
Dictated to the Stenographer and typed by her directly on computer,
corrected and pronounced by me in the open court, this the 7th day of May, 2026.
VII ADDITIONAL DISTRICT JUDGE:
VIJAYAWADA.
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APPENDIX OF EVIDENCE
FOR PLAINTIFF FOR DEFENDANTS
PW.1:V.Satyanarayana DW.1: V.Radha Krishna Murthy PW.2: Achanti Purnachandra Rao DW.2: V.Geetha Rani DW.3: K.Ramesh Babu DW.4: D.Bhaskara Rao (eschewed) DW.5: P.Sarojini DW.6: V.Venugopal DW.7: N.Venkateswara Rao DW.8: B.Babji
DOCUMENTS MARKED
FOR PLAINTIFF
Ex.A1 is the certified copy of partition deed dated 30.05.1967 bearing Doc.No.1982/1967. Ex.A2 is the notice dated 10.05.2010. Ex.A3 is the postal acknowledgment dated 13.5.2010. Ex A4 is the postal acknowledgment dated 13.05.2010. Ex.A5 is the three photographs
FOR DEFENDANTS:
Ex.B1 is the Certified copy of Registered Will dated 11.3.2011.
VII ADDITIONAL DISTRICT JUDGE
VIJAYAWADA.