IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE:
ADILABAD
Present:
Dr.Ch.V.R.R. Varaprasad ,
Principal District Judge, Adilabad
FRIDAY, THE 22 ND DAY OF MARCH, 2024
A.S. NO. 4 O F 202 4
(CROSS OBJECTIONS IN AS.No.11/2020)
Between:
1. Komarwar Rama Rao (Died per LRs Appellant Nos.2 to 6).
2. Ganga Bai (Died per LRs Appellants Nos.3 to 6).
3. Mohan S/o Late Rama Rao Komarwar, Age:47 Years, Occ:Agriculture.
4. Yojana D/o Late Rama Rao Komarwar, Age:44 Years, Occ:Home Maker,
5. Vandana D/o Late Rama Rao Komarwar, W/o Narayan Nemmaniwar, Age:42 Years, Occ:Home Maker,
6. Dev Rao S/o Late Rama Rao Komarwar, Aged:40 Years, Occ:Agriculture. All R/o Welmapura, Kinwat, Taluk Kinwat, Nanded District, Maharashtra State. … APPELLANTS AND
1. Tirumaneni Subhadra (Died per L.R. respondent No.2)
2. Akash Komarwar S/o Mukund Rao, Age:41 Years, Occ:Advocate, R/o S.V.M.Colony, Kinwat, Kinwat Taluk, Nanded District, Maharashtra State. … RESPONDENTS 2
A.S. No.4 of 2024
ON APPEAL AGAINST THE JUDGMENT AND DECREE DATED
09.12.2019 PASSED BY THE SENIOR CIVIL JUDGE,
ADILABAD
IN
OS.NO.39 OF 2010
Between:
1. Tirumaneni Subhadra W/o Late Ramulu (Died per L.R. Plaintiff No.2)
2. Akash Komarwar S/o Mukund Rao
.. PLAINTIFFS
AND
Komarwar Rama Rao S/o Jagganna Komarwar and 6 others.
.. DEFENDANTS
This Appeal Suit (Cross Objections) is coming before me for final hearing on 14.02.2024 in the presence of Sri Narendra R.Choudhari, Advocate for appellants, Sri Mohammad Ghous, Advocate for respondent No.2, and on hearing both sides and on perusal of the material on record and the matter having been stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. This Appeal Suit in the form of Cross-Objections is filed by defendants in OS.No.39 of 2010 on the file of Senior Civil Judge's
Court under Order XLI Rules 1 and 2 of the Code of Civil Procedure being aggrieved by adverse findings given against them in common judgment dated 09.12.2019 in OS.No.39 of 2010 and OS.No.46 of 2010 with regard to registered Will Deed, dated 10.06.2010 and registered Will Deed dated 31.05.1974.
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2. Tirumaneni Subhadra (Respondent No.1) filed OS.No.39/2010 in Senior Civil Judge's Court, Adilabad against Rama Rao alias
Ramulu (Appellant No.1) for declaration of title and recovery of possession in respect of land admeasuring Ac.0.07 Gts. in Sy.No.68 and Ac.18.25 Gts. in Sy.No.79, both situated at Gimma-B Village,
Jainath Mandal, Adilabad District (suit land in A.S.No.11/2020 in
O.S.No.39/2010).
3.Komarwar Rama Rao (Appellant No.1) filed OS.No.46/2010 in
Senior Civil Judge's Court, Adilabad against Tirumaneni Subhadra
(Respondent No.1) and Mamidiwar Swapnil for declaration of title and recovery of possession of land admeasuring Ac.3.36 Gts. in
Survey No.144/B and Ac.3.20 Gts. in Survey No.144/E, total extent being Ac.7.16 Gts., situated at Gimma-Khurd Village, Jainath Mandal,
Adilabad District (suit land in A.S.No.9/2020 in O.S.No.46/2010).
4.During pendency of OS.No.39/2010 Respondent No.1/sole plaintiff died on 21.06.2010 and one Akash (Respondent No.2) was brought on record as plaintiff No.2, being her legal representative, by order, dated 01.06.2011 in I.A.No.236/2010. Appellant No.1 (Sole defendant) also died during pendency of suit on 13.05.2011 and
Appellants 2 to 6 were brought on record (his legal representatives) 4
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as defendants 2 to 6 by order, dated 28.12.2012 in IA.No.182/2011.
Appellant No.2/Defendant No.2 also died during pendency of suit on 06.08.2019. Memo was filed on 21.08.2019 reporting no steps as her legal representatives (Appellants 3 to 6/defendants 3 to 6) were already on record.
5.During pendency of OS.No.46/2010 Appellant No.1 herein (sole plaintiff) died. Appellants 2 to 6 herein were brought on record (his legal representatives) as plaintiffs 2 to 6 by order, dated 04.04.2014 in IA.No.28/2012. Appellant No.2 herein also died. Memo was filed on 21.08.2019 reporting no steps as Appellants 3 to 6 were already on record. Similarly, Respondent No.1 herein (defendant No.1) died.
Her legal representative Akash Komarwar (Respondent No.2 herein) was brought on record as defendant No.3 by order, dated 07.04.2014 in IA.No.237/2010.
6.OS.No.39/2010 and OS.No.46/2010 on the file of learned Senior
Civil Judge's Court, Adilabad were clubbed and joint trial was
conducted in OS.No.46/2010 and common judgment was delivered on 09.12.2019 dismissing both the suits.
7.AS.No.9/2020 is filed by plaintiffs in OS.No.46/2010 and
AS.No.11/2020 is filed by plaintiffs in OS.No.39/2010 praying the
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court to set aside the judgment and decree, dated 09.12.2019 in
OS.No.39/2010 and O.S.No.46/2010 passed by learned Senior Civil
Judge, Adilabad and to decree the suits. This Appeal (cross
objections) is filed by defendants in OS.No.39/2010 praying the court to set aside the adverse findings given in judgment, dated 09.12.2019 in OS.No.39/2010. All these three appeals are being disposed of today simultaneously by separate judgments.
8.Brief averments of plaint in OS.No.39/2010 filed by Respondent
No.1 herein are as follows:
a).Husband of Plaintiff by name T.Ramulu S/o Narsing Rao was the owner and possessor of suit land. Ramulu died on 09.05.1993 in his residential house in Gimma Khurd Village. Defendant No.1 was a
Government Employee in Revenue Department having worked in different places of Nanded District of State of Maharashtra from 01.06.1966, retired from service and residing in Kinwat. Defendant
No.1 during his lifetime never resided in Gimma Khurd Village, which is evident from his service record. Defendant No.1 has two brothers, namely Mukund Rao and Govind, defendant No.1 being elder one.
Defendant No.1 never visited the place of residence of Ramulu nor he had any love and affection towards him nor he had attended the funeral of Ramulu.
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b).During his lifetime husband of plaintiff No.1 purchased landed properties and reconstructed house in 1982-83 by demolishing house with Door No.7 (old), new number being 1-11, and Door
No.507 (old), new number being 1-12. After the death of Ramulu, plaintiff No.1, being his wife, succeeded to his properties and became the owner and possessor of those properties, including suit land, and she has cultivated them by engaging farm servants. In the year 2005 plaintiff No.1 sold some properties to Swapnil Mamidwar, including the lands in Sy.Nos.144-2 and 144-172, situated at Gimma-
Khurd Village. The said sale transaction was not assailed by defendant No.1 in any court of law. Defendant No.1 tried to obstruct mutation of properties on the basis of sale effected by plaintiff No.1 by filing appeal before the Revenue Divisional Officer, Adilabad, which was rejected in the year 2006. Defendant No.1 filed Revision
Petition before the Joint Collector, Adilabad, which was also dismissed on 19.12.2009 and since then defendant No.1 had not asserted his rights by producing Will Deed Document No.10/1974,
dated 31.05.1974.
c). Plaintiff No.1 was peacefully residing in Gimma-Khurd Village.
Defendant No.1 has filed OS.No.8/2008 in Junior Civil Judge's Court,
Adilabad without any right, title or possession over the property, putting forth his claim on the basis of registered Will Deed Document 7
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No.10/1974, dated 31.05.1974. After the sale of above property in favour of Swapnil, defendant No.1 apprehended that he would not get property of Ramulu and started causing disturbance over the possession of plaintiff No.1 and got his name entered in revenue records with ante date in collusion with revenue authorities, without even giving notice to plaintiff No.1, which compelled plaintiff No.1 to file the present suit.
d).Registered Will Deed Document No.10/1974, dated 31.05.1974 is null and void and not binding on plaintiff No.1. In December, 2007 defendant No.1 forcibly evicted the farm servant of plaintiff No.1 from suit land, which is deriving annual net income of Rs.50,000/-, which is the sole source of livelihood for plaintiff No.1 and, therefore, defendant No.1 is liable to compensate the same till the recovery of possession of the suit land. Late Tirmaneni Ramulu (husband of plaintiff No.1) had no reason or desire to execute Will Deed in favour of defendant No.1. Defendant No.1 never lived in Gimma-K Village nor served plaintiff No.1 and her husband at any point of time. It appears that defendant No.1 by taking undue advantage of innocence and illiteracy of her husband got created Will Deed
Document No.10/1974, dated 31.05.1974, which has to be declared as null and void. The said Will Deed did not reflect any reason to by- pass the interest of plaintiff No.1, no provision was made for plaintiff 8
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No.1, no relatives were taken into confidence, late Ramulu did not know Urdu language and thereby he did not know what was written in the said Will Deed and that there is no endorsement that the contents were read over to Ramulu in Telugu. Defendant No.1 never objected succession of plaintiff No.1 by disclosing the Will and the above Will Deed was got executed surreptitiously without the knowledge and consent of plaintiff No.1.
Thus submitting, plaintiffs 1 and 2 prayed the court to decree the suit as prayed for.
9.Defendant No.1 (Appellant No.1 herein) filed written statement on 02.09.2010, inter alia, stating as follows:
a).Defendant No.1 was a Government Employee and he resided in
Gimma-K Village. Plaintiff No.1 and her husband were issueless and, therefore, they brought defendant No.1 to their house in 1974 as their sole legal heir and the husband of plaintiff No.1 executed Will
Deed in his favour. All the averments of plaint are false. Defendant
No.1 filed OS.No.8/2008 against plaintiff No.1 in Junior Civil Judge's
Court, Adilabad. Defendant No.1 was the owner and possessor of lands in Sy.Nos.69,79, 144/B and 144/E, situated at Gimma-B Village and H.No.7 (507) of Gimma-Khurd Village of Jainath Mandal by virtue of Will Deed Document No.10/1974, dated 31.05.1974 and plaintiff 9
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No.1 is not the successor of said properties. Plaintiff No.1 behind the back of defendant No.1 while he was suffering from paralytic stroke managed revenue authorities and got some fake documents created and sold away the lands in Sy.No.144/B and 144/E to one Swapnil of
Sonna Village of Maharashtra State as nobody was ready to purchase the same because all the villagers of Gimma had knowledge about ownership and possession of defendant No.1. The
Will Deed executed by plaintiff No.1 in favour of Swapnil is illegal and not binding on defendant No.1, for which he has filed
OS.No.46/2010.
b).Defendant No.1 filed cases before the revenue authorities and courts and the statement of plaintiff No.1 that defendant No.1 kept quiet is false. Revenue Authorities observed that the matter pertain to civil court and, therefore, directed the parties to approach the civil court, because of which he has filed OS.No.46/2010 against plaintiffs 1 and 2 on the basis of Will Deed, dated 31.05.1974. Plaintiff No.1 is residing in Chalbardi Village of Maharashtra State since 2007, which is established by the notice and Vakalath of defendant No.1 published in newspaper in OS.No.8/2008 on the file of Junior Civil
Judge's Court, Adilabad. Though the Will Deed Document
No.10/1974 was registered in the year 1974 plaintiff No.1 never challenged the same for the last 36 years. Suit itself is not 10
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maintainable and liable to be dismissed. There is no cause of action to file the suit. Registered Will Deed, dated 31.05.1974 is valid under law because it was executed by husband of plaintiff No.1 as defendant No.1 served plaintiff No.1 and her husband in all respects.
Plaintiff No.1 ignored the services rendered by defendant No.1 at the instance of her sister for wrongful gain to her sister. Defendant No.1 never took Ramulu to Adilabad nor got forged Will Deed. Husband of plaintiff No.1 executed Will Deed in favour of defendant No.1 with the consent of plaintiff No.1 in the presence of witnesses and Sub-
Registrar, Adilabad.
Thus submitting, defendant No.1 (Appellant No.1 herein) prayed the court to dismiss the suit with costs.
10.After hearing both sides and on perusal of the pleadings, following issues were framed on 12.08.2014 by learned Senior Civil
Judge, Adilabad in OS.No.39/2010:
1. Whether the plaintiff is entitled for declaration that she is the owner of land in Sy.No.68 to an extent of Ac.0.07 Gts. (wrongly typed as Ac.7.00 Gts. in issues) and land in Sy.No.79 to an extent of Ac.18.25 Gts., (wrongly typed as Ac.18.20 Gts. in issues) situated at Gimma Village, Mandal Jainath as prayed for?
2. Whether the plaintiff is entitled for recovery of possession of properties mentioned in Issue No.1 as prayed for?
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3. Whether the plaintiff is entitled for relief of declaration of Will Deed Document No.10/1974, dated 31.05.1974 as null and void as prayed for?
4. Whether the suit is barred by limitation?
5. To what relief?
11.Plaintiff No.3 in OS.No.46/2010 was examined as PW1 and got examined Aindla Bhagwandas and Devidas as PW2 and PW3 respectively. Defendant No.3 in OS.No.46/2010 was examined as
DW1 and got examined Sanjay Chintawar as DW2. Exs.A1 to A48 and Exs.B1 to B6 were marked on behalf of plaintiffs and defendants respectively, the details of which are mentioned at the Appendix of
Evidence in common judgment, dated 09.12.2019 in OS.No.39/2010 and OS.No.46/2010.
12.After hearing both sides and on perusal of the material on record and citations filed by plaintiffs trial court has dismissed both the suits in OS.No.39/2010 and OS.No.46/2010 without costs by common judgment and decree under appeal.
13.In Memorandum of Cross Objections it is mentioned that trial court has not appreciated the evidence on record in proper perspective and came to erroneous conclusion with regard to Will
Deed, dated 10.06.2010 holding that it was executed by respondent 12
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No.1/plaintiff No.1 while it is shrouded with several suspicious circumstances. Trial court also came to erroneous conclusion that
Appellants/defendants failed to prove Will Deed, dated 31.05.1974 by Tirmaneni Ramulu in favour of defendant No.1. Though the trial court has rightly dismissed OS.No.39/2010 on other grounds it ought to have dismissed the said suit on the ground that plaintiff No.1 did not execute Will Deed, dated 10.06.2010 in favour of respondent
No.2, particularly as the said Will Deed is shrouded with several suspicious circumstances. In sound disposing state of mind
Tirmaneni Ramulu executed Will Deed Document No.10/1974, dated 31.05.1974 (Ex.A1) in favour of appellant No.1/defendant No.1 with his free will and consent without any coercion in the presence of
Mamidpelly Kistanna and Ganganna, Residents of Gimma-K Village, and with the consent and knowledge of respondent No.1/plaintiff
No.1 by bequeathing the properties mentioned therein in favour of defendant No.1. After the death of Tirmaneni Ramulu the name of defendant No.1 was got mutated in revenue records. T.Mukund Rao filed PLC.No.20/2002 against plaintiff No.1 in DLSA, Adilabad claiming himself to be the adopted son of Tirmaneni Ramulu and plaintiff No.1 denied the said plea. Explanation submitted by plaintiff
No.1 to DLSA, Adilabad in Ex.A47, which is issued by Public
Authority, ought to have been relied upon by trial court. Ex.B4 Will 13
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Deed was brought into existence taking advantage of ill health of defendant No.1. Trial court ought to have relied on the evidence of
PW3, who is one of the attestors to Ex.A1. Trial court wrongly assumed that except defendant No.1 other family members had no knowledge about Ex.A1 Will Deed. Trial court failed to see that defendant No.1 filed Ex.A1 Will Deed before Gram Panchayath,
Gimma on 16.11.1993 under Ex.A44 immediately after the death of
Tirmaneni Ramulu and also before the MRO, Jainath, on the basis of which MRO, Jainath passed Ex.A2 order transferring the patta of lands in Sy.No.69 and 79 in favour of defendant No.1 but the trial court came to erroneous conclusion by holding that Ex.A1 was filed for the first time before the Joint Collector. Plaintiff No.1 died on 21.06.2010 at the age of 100 years, she was bed ridden before her death and that Will Deed, dated 10.06.2010 was brought into existence 11 days prior to her death and the said Will Deed is shrouded with several suspicious circumstances but the learned trial court ignored all these aspects and held that it was executed by plaintiff No.1. There is no plea in OS.No.39/2010 about plaintiff No.1 executing Will Deed, dated 10.06.2010 (Ex.B4) but the learned trial court considered the evidence in that regard. Learned trial court failed to see that Appellant No.1/Defendant No.1 served T.Ramulu and respondent No.1/plaintiff No.1. Learned trial court wrongly held 14
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that plaintiff No.1 inherited the properties from her husband
T.Ramulu. Will Deed, dated 10.06.2010 alleged to have been executed by plaintiff No.1 is invalid. Learned trial court ought to have dismissed OS.No.39/2010 as it was barred by limitation. Thus submitting, appellants/defendants prayed the court to allow the cross objections by setting aside the adverse findings in judgment
dated 09.12.2019 in OS.No.39/2010.
14.Heard Sri Narendra R.Choudhari, learned counsel for appellants/cross-objectors/defendants and Sri Mohammad Ghous, learned counsel for respondents/plaintiffs.
15.Following points arise for determination:
1. Whether registered Will Deed Document No.10/1974,
dated 31.05.1974 is true and valid or it is liable to be
declared as null and void?
2. WhetherregisteredWillDeedDocument No.775/2010, dated 10.06.2010 (Ex.B4) is true and valid?
3. Whether the adverse findings in common judgment and decree dated 09.12.2019 in OS.No.39/2010 and
OS.No.46/2010 passed by the learned Senior Civil
Judge, Adilabad in respect of Ex.A1 Will Deed and
Ex.B4 Will Deed are sustainable under law or they need to be set aside?
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POINT NO. 1 :
16.Appellants 1 to 6/Cross Objectors and respondent No.1,
Mamidwar Swapnil (Defendant No.2 in O.S.No.46/2010) and respondent No.2 herein are hereinafter referred to as plaintiffs 1 to 6 and defendants 1 to 3 respectively, as arrayed in OS.No.46/2010, for the sake of convenience.
17.Court has carefully perused the averments of plaint, written statement, evidence of PW1 to PW3, DW1 and DW2, Exs.A1 to A48,
Exs.B1 to B6, judgment under appeal passed by the learned Senior
Civil Judge, Adilabad and the Memorandum of Grounds of Appeal.
This court has to deal with the cross-objections filed under Order XLI
Rules 1 and 22 of the C.P.C. as if it is an independent appeal and consequently this court is required to appreciate the evidence on record independently and give findings and then test whether the findings given by learned trial court are sustainable under law. In the cross-objections (present appeal) the main grievance is that the learned trial court has given adverse findings against plaintiffs 1 to 6 in respect of Ex.A1 Will Deed and Ex.B4 Will Deed and, accordingly, those adverse findings have to be set aside. In this legal backdrop, court proceeds to appreciate the evidence on record and see whether Ex.A1 and Ex.B4 Will Deeds are true and valid and 16
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consequently whether the adverse findings given by learned trial court are sustainable under law or they need to be set aside.
18.Tirumaneni Ramulu alias Pedda Ramulu alias Peddolla Ramulu
S/o Narsing Rao of Gimma-Khurd Village, Jainath Mandal, Adilabad
District was the absolute owner and possessor of agricultural lands admeasuring Ac.0.07 Gts. in Sy.No.68 and Ac.18.25 Gts. in Sy.No.79, total extent being Ac.18.32 Gts., situated at Gimma-Buzurg Village,
Jainath Mandal, Adilabad District (suit land in this appeal), Ac.3.36
Gts. in Sy.No.144/B, Ac.3.20 Gts. in Sy.No.144/E, total extent being
Ac.7.16 Gts., situated at Gimma-Khurd Village, Jainath Mandal,
Adilabad District (suit land in AS.No.9/2020) and House No.7 (old), new number being 1-11 and House No.507 (old), new number being 1-12 with cattle shed, situated at Gimma-Khurd Village, Jainath
Mandal, Adilabad District, which is not the subject matter of
AS.No.9/2020, AS.No.11/2020 and cross objections in AS.No.4/2024.
T.Subhadra (defendant No.1) is wife of late T.Ramulu. Tirumaneni
Ramulu died on 09.05.1993 in Gimma-Khurd Village. Late Ramulu had younger brother by name Narsing Rao who died long back. One
Kalawathi Bai (sister of late T.Ramulu) is resident of Rampur Village which is nearer to Gimma Village. K.Rama Rao alias Ramulu (plaintiff No.1) was the son of Papamma alias Papakka, who was 17
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younger sister of late T.Ramulu. Kommarwar Rama Rao (plaintiff
No.1), Mukund Rao (father of defendant No.3) and Govind Rao are the real brothers and children of Papakka and nephews of late
T.Ramulu. Papakka had three daughters as well. Plaintiff No.1 was elder son among the family. Komarwar Govind Rao was a farmer.
Plaintiff No.1 worked in Hadgaon, Kinwat, Deghur and Mahur of
Nanded District of Maharashtra State in Revenue Department from 01.06.1966 to 31.07.2001, on which date he retired from service.
Mukund Rao (father of defendant No.3) worked in State Excise
Department in Mumbai, Aurangabad, Nanded, Biloli, Nagpur,
Pandarkwada of Maharashtra State and retired from service in the year 2011. Defendant No.3 (DW1) is an Advocate and his younger brother is a Software Engineer staying in London. Plaintiff No.2 is wife of plaintiff No.1. Plaintiff Nos.3 and 6 are the sons and plaintiffs 4 and 5 are daughters of plaintiffs 1 and 2. Mothers of defendant
No.2 and defendant No.3 are real sisters. Gopal Rao Chintawar (father of DW2) is the maternal grandfather of defendants No.2 and
3. One Ammakka is daughter of sister of Subhadra (defendant No.1) and she is resident of Chalbardi village. Mothers defendants 2 and 3 are real sisters and daughters of Gopal Rao Chintawar. DW2 is maternal uncle of defendants No.2 and 3. Subhadra (defendant
No.1) died on 21.06.2010 at the age of 100 years in Chalbardi Village 18
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of Maharashtra State. Defendant No.1 was the absolute owner of
Ac.1.01 Gts. in Sy.No.152/2, situated at Gimma-Khurd Village, which was purchased by late T.Ramulu in her name under Ex.A46 registered Sale Deed from Mahajan Jaggaiah S/o Ramulu. Defendant
No.1 sold the said land of Ac.1.01 Gts. in Sy.No.152/2 of Gimma-
Khurd Village to one Gajula Bhavani on 17.03.1997 under Ex.A45 registered Sale Deed. These facts are not in dispute. They are also born out by evidence on record.
19.Ex.A1 was alleged to have been executed by late T.Ramulu in favour of plaintiff No.1 bequeathing land admeasuring Ac.0.07 Gts. in
Sy.No.68 and Ac.18.25 Gts. in Sy.No.79, total extent being Ac.18.32
Gts., situated at Gimma-Buzurg Village, Jainath Mandal, Adilabad
District (suit land in this appeal), Ac.3.36 Gts. in Sy.No.144/B,
Ac.3.20 Gts. in Sy.No.144/E, total extent being Ac.7.16 Gts. situated at Gimma-Khurd Village, Jainath Mandal, Adilabad District (suit land in AS.No.9/2020) and House No.7 (old), new number being 1-11 and
House No.507 (old), new number being 1-12 with cattle shed, situated at Gimma-Khurd Village, Jainath Mandal, Adilabad District.
The plea of plaintiff No.1 is that since late T.Ramulu and defendant
No.1 had no children they brought plaintiff No.1 to their house in
Gimma-Khurd Village in 1974 to look after them, late T.Ramulu 19
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executed Ex.A1 in favour of plaintiff No.1 to the knowledge of defendant No.1 and accordingly he has looked after them but later defendant No.1 along with cash, gold, etc. went away to the house of daughter of her sister. On the other hand, it is the case of defendant
No.1 that Ex.A1 Will Deed is a created and fabricated document, plaintiff No.1 was never brought by late T.Ramulu and defendant
No.1 to their house and after the death of late T.Ramulu in 1993 defendant No.1 succeeded to the suit land and above properties and plaintiff No.1 has no right whatsoever over the suit land and other properties. It is also the case of defendant No.1 that she was looked after by defendant No.3 and she has executed Ex.B4 registered Will
Deed Document No.775/2010, dated 10.06.2010 in favour of defendant No.3 bequeathing suit land and H.Nos.1-11 and 1-12 along with cattle shed, situated in Gimma-Khurd Village. Therefore, court proceeds to examine whether Ex.A1 Will Deed alleged to have been executed by late T.Ramulu in favour of plaintiff No.1 is true and valid.
20.It is an admitted fact that late T.Ramulu was the original owner of suit land. The factum of death of late T.Ramulu on 09.05.1993 in
Gimma-Khurd Village is also not in dispute. By the date of commencement of common trial in OS.NO.39/2010 and 20
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OS.No.46/2010 plaintiff No.1 died, who is propounder of Ex.A1 Will
Deed. Plaintiff No.2, who is wife of plaintiff No.1 and mother of plaintiffs 2 to 6, also died during the pendency of suits. Mohd Moosa
S/o Mohammed (scribe of Ex.A1) and Mamidipally Kistanna S/o
Devanna and Ganganna S/o Jagganna (attestors to Ex.A1) also died.
As per Section 63 of the Indian Succession Act, Will Deed is a compulsory attestable document, which has to be attested by atleast two witnesses. Section 68 of the Evidence Act requires examination of atleast one attesting witness to prove Will Deed. Section 69 of the
Evidence Act gives relaxation of examination of atleast one attesting witness when there is impossibility. There is impossibility on the part of plaintiffs to examine atleast one of the attestors to Ex.A1 since they died. Ex.A1 is dated 31.05.1974. Suits were filed in the year 2010. Ex.A1 was received in evidence on 04.08.2015. Because of long lapse of time valuable evidence has been lost on account of death of attesting witnesses.
21.Learned counsel for plaintiffs has placed reliance on the decision of the Hon'ble High Court of A.P. in B.Srirama Murthy v.
Uppaluri Lalitamba (died) and others reported in 2011 (1) ALD 638, wherein it was held that when both the attestors are not available Section 69 of the Evidence Act is applicable, which 21
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envisages that it must be proved that attestation of one attesting witness atleast is in his handwriting and that signature of a person executing document is in handwriting of that person. In the said case scribe of the Will Deed was examined since the attesting witnesses died. However, in the present case scribe and both the attesting witnesses died. In the said decision it was held that it is enough if it is proved that attestation of one attesting witness to Will
Deed is in his handwriting. Same legal principle has been reiterated in the decision of Hon'ble High Court of Andhra Pradesh in Kesarapu
Manikyalu v. Venna Perumallayya (died) by LRs and others
reported in 2000 (1) ALD 32, which is also relied on by the learned counsel for plaintiffs, in which case scribe and both the attesting witnesses to the Will Deed died. Therefore, the legal requirement is that when two attestors to Will Deed died a person who has acquaintance with signature of one of the attestors has to be examined.
22.PW3 is the son of Mamidipalli Kistanna, who is attestor No.1 to
Ex.A1 Will Deed. PW3 has identified the signature of his father on
Ex.A1. PW3 deposed that on 11.11.1986 his father died in Gimma-
Khurd Village. By the date of deposing evidence by PW3 he was aged 64 years. As on the date of Ex.A1 Will Deed PW3 was aged 22
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about 21 years. It is not a case where PW3 was minor as on the date of Ex.A1, in which case court could have certainly rejected his evidence. Since PW3 was major as on the date of Ex.A1 and as his father lived for 12 years after Ex.A1 i.e. till PW3 attained the age of 36 Years PW3 is the competent and relevant witness to identify the signature of his father on Ex.A1. In cross-examination PW3 admitted that he has no document signed by his father, including registered document. PW3 also deposed in cross-examination that for the first time he had seen the signature of his father on Ex.A1 on the date when he deposed evidence. Naturally PW3 had seen his father's signature on Ex.A1 for the first time in court when he was confronted with Ex.A1. It does not mean that prior to date of deposing evidence
PW3 had never seen his father signing on any document. Merely because PW3 deposed that he had no document, registered and unregistered, containing the signature of his father, court cannot disbelieve his evidence. There is no enmity between PW3 and defendants and it was not even suggested to him. There is no friendship between PW3 and plaintiffs. PW3 is an independent witness. There will be no reason for PW3 to depose against defendants. Court finds no reason to disbelieve the evidence of
PW3. Court is of the considered opinion that by examining PW3 23
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plaintiffs have complied the legal requirement under Section 69 of the Evidence Act.
23.One important aspect mentioned in Para No.15 of plaint in
OS.No.39/2010 needs to be referred in respect of Ex.A1 and it reads
as follows:
"It seems the defendant (K.Rama Rao alias Ramulu) by taking undue advantage of innocency (innocence) and illiteracy of the husband of the plaintiff (Late T.Ramulu) has got created the Will Deed, which is liable to be declared as null and void)."
In Para No.16 of the plaint in OS.No.39/2010 it is mentioned that plaintiff No.1 took late T.Ramulu to Adilabad on pretext of protecting his interest and got forged Will (Ex.A1). In Para No.3 of Page No.3 of written statement filed in OS.No.46/2010 defendants No.2 and 3 mentioned as follows:
"It is humbly submitted that T.Ramulu had no love and affection towards K.Rama Rao and K.Rama Rao never lived in Gimma Village and never served T.Ramulu or his wife at any time (and) hence it is very clear that taking undue advantage of innocency (innocence) and illiteracy of T.Ramulu the alleged Will Deed got executed by K.Rama Rao." (emphasis supplied).
24
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In written statement of OS.No.46/2010 plea of forgery of Ex.A1 was not taken. The above recital mentioned by defendants No.2 and 3 in written statement in OS.No.46/2010 shows that they are not disputing the thumb impression of late T.Ramulu on Ex.A1, including its execution but they only took the plea that plaintiff No.1 got executed Ex.A1 by late T.Ramulu by taking advantage of innocence and illiteracy of late T.Ramulu. In fact, even in Para No.15 of plaint in OS.No.39/2010 the factum of late T.Ramulu going to the office of
Sub-Registrar, Adilabad is admitted. That apart, in cross- examination DW1 pleaded his ignorance as to whether late Peddolla
Ramulu executed Will Deed in favour of plaintiff No.1 and did not specifically deny execution of Ex.A1 by late Ramulu. Therefore, above recitals in pleadings of defendants and answer given by DW1 in cross-examination go in favour of plaintiffs in respect of Ex.A1.
24.Learned counsel for plaintiffs contended that since Ex.A1 is more than 30 years old document court has to draw presumption under Section 90 of the Evidence Act, particularly as Ex.A1 is produced from proper custody. In support of his contention learned counsel for plaintiff has placed reliance on the decision of the
Hon'ble High Court of Andhra Pradesh in Ramesh and others v.
Laxmamma and others reported in 1999 (2) ALD 483, wherein 25
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the scope of Section 90 of the Evidence Act has been dealt with holding that ancient Will need not be proved by the propounder if it is produced from the proper custody in the absence of suspicious circumstances. Learned counsel for plaintiffs has also placed reliance on the decision of the Hon'ble High Court of Andhra Pradesh in Kesarapu Manikyalu's case (referred to supra), in which decision also similar view was taken. On the other hand, learned counsel for defendants contended that court cannot draw presumption under Section 90 of the Evidence Act in the facts and circumstances of the present case, particularly as Ex.A1 is a forged one.
25.Ex.A1 is the registered Will Deed, dated 31.05.1974. Ex.A1 was tendered in evidence and marked on 04.08.2015. While determining the age of document the date of execution of document and the date on which it is tendered in evidence are important factors. By the date of marking Ex.A1, it is aged 41 years old. Ex.A1 was filed in court by plaintiff No.1 (propounder) along with plaint in
OS.No.46/2010. Plaintiff No.1, being the propounder of Ex.A1, is the
custodian of Ex.A1 after the death of late T.Ramulu (testator).
Therefore, it has to be taken that Ex.A1 was produced from proper custody. The requirement under Section 90 of the Evidence Act has 26
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been complied by plaintiffs. Therefore, presumption under Section 90 of the Evidence Act has to be drawn in favour of plaintiffs to the effect that it was executed by late T.Ramulu (husband of defendant
No.1).
26.Learned counsel for defendants contended that there are several suspicious circumstances surrounding Ex.A1 and, therefore, no credence can be given to Ex.A1. According to him, since plaintiff
No.1 was a government employee in Revenue Department in
Maharashtra State there was impossibility for him to come to
Gimma-Khurd Village and look after late T.Ramulu and defendant
No.1 and the question of late T.Ramulu and defendant No.1 bringing plaintiff No.1 to their house in Gimma-K village to look after them does not arise and that the said allegation was created by plaintiff
No.1 for the purpose of knocking away the suit land and other properties. On the other hand, learned counsel for plaintiffs contended that during weekends and holidays plaintiff No.1 used to come to Gimma-Khurd village, sometimes he used to stay in Gimma-
K Village and looked after the welfare of late T.Ramulu and defendant No.1 and he has performed the obsequies of late
T.Ramulu when he died on 09.05.1993 and that late T.Ramulu and 27
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defendant No.1 brought plaintiff No.1 to their house as he is the nephew of late T.Ramulu, particularly as they had no issues.
27.The fact that late T.Ramulu and defendant No.1 having no issues is not in dispute. Plaintiff No.1 being nephew of late T.Ramulu and son of sister of late T.Ramulu by name Papamma alias Papakka is also not in dispute. It is also an admitted that defendant No.2 is the son of Komarwar Mukund Rao, who is another nephew of late
T.Ramulu and son of Papamma alias Papakka. It is also the case of defendants that defendant No.1 executed Ex.B4 registered Will Deed in favour of defendant No.3 on 10.06.2010 in respect of suit land and other properties. Court will examine about validity or otherwise of
Ex.B4 a little later. From the very case of defendants it is clear that nephews of late T.Ramulu were very close to him and defendant
No.1. There is the evidence of PWs 1 to 3 regarding late T.Ramulu bringing plaintiff No.1 to Gimma-Khurd village as they had no issues.
Court is unable to convince itself to accept the contention of defendants that late T.Ramulu did not bring plaintiff No.1 to his house in Gimma-Khurd Village in 1974.
28.PW1 admitted that plaintiff No.1 worked in Hadgaon and
Kinwat. He also deposed that Hadgaon is at a distance of 100 Kms 28
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and Kinwat is at a distance of 60 Kms from Gimma Village. PW1 reiterated that plaintiff No.1 used to come to Gimma-Khurd Village.
PW1 asserted that very frequently plaintiff No.1 used to come to
Gimma. PW2 admitted that after plaintiff No.1 attacked from paralysis he stopped visiting Gimma Village. PW2 also deposed that plaintiff No.1, PW1 and plaintiff No.2 have no voter ID cards and
Ration cards in Gimma Village. According to PW3, about 10 to 15 years prior to his deposing evidence plaintiff No.1 suffered from paralysis which means it may be between 2002 and 2007. PW3 also deposed in cross-examination that from the year 2000 he had not seen plaintiff No.1 visiting Gimma Village. DW1 admitted that 2/3 years prior to his death plaintiff No.1 suffered from paralysis.
Plaintiff No.1 died during pendency of suits on 13.05.2011. Since
DW1 did not attend the obsequies of Peddolla Ramulu he did not know who performed obsequies of late T.Ramulu. As per Ex.B2, plaintiff No.1 worked in Revenue Department from 01.06.1966 to 31.07.2001 in Hadgaon, Kinwat, Degur and Mahur of Nanded District of Maharashtra State. It has come in the evidence that the family of plaintiff No.1 was always staying in Kinwat. Parents of defendant
No.2 also stayed in Kinwat. Govind Rao (another brother of plaintiff
No.1) also stayed in Kinwat. DW1 admitted that the posting of plaintiff No.1 was near Kinwat only sometimes and sometimes he 29
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worked in Kinwat itself. DW1 admitted that distance between Kinwat and Adilabad is 40 to 50 Kms and there is train facility to Adilabad from Kinwat. Therefore, it was not difficult for plaintiff No.1 to come to Gimma-Khurd Village from Kinwat during weekends and public holidays, stay with them and look after them. Merely because plaintiff No.1 was placed under suspension from 05.06.1986 to 12.02.1988 and from 03.05.1990 to 31.08.1993 it cannot be a ground to disbelieve Ex.A1. Suspension of plaintiff No.1 has no connection to the validity of Ex.A1 Will Deed. Therefore, court is unable to accept the contention of defendants that plaintiff No.1 never came to Gimma-Khurd Village nor looked after late T.Ramulu and defendant No.1.
29.Learned counsel for defendants contended that according to the case of plaintiffs, plaintiff No.1 was brought to Gimma-Khurd
Village by late T.Ramulu in 1974 and, if it is so, the question of late
T.Ramulu executing Ex.A1 in 1974 itself does not arise. There is no hard and fast rule when late T.Ramulu would execute Will Deed in favour of plaintiff No.1. It is not a case where just few days or few months after execution of Ex.A1 late T.Ramulu died. On 31.05.1974
Ex.A1 was executed by late T.Ramulu and he died on 09.05.1993 which means that for 19 years from the date of Ex.A1 late T.Ramulu 30
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was alive. If really the intention of late T.Ramulu was not to bequeath any properties to plaintiff No.1 he could have executed another Will Deed in favour of another person or he could have cancelled Ex.A1 but he did not do so. Till the date of execution of
Ex.B4 by defendant No.1 in the year 2010 she maintained silence.
All these circumstances go to show that plaintiff No.1 looked after late T.Ramulu and defendant No.1 from 1974 till defendant No.1 left
Gimma-Khurd Village and shifted to the house of daughter of her sister in Maharashtra. At any rate, execution of Ex.A1 by late
T.Ramulu in 1974, at which time plaintiff No.1 was brought to his house, cannot be a suspicious circumstance to disbelieve Ex.A1.
30.Learned counsel for defendants contended that no provision was made by late T.Ramulu for defendant No.1 in Ex.A1 though she is his legally wedded wife and that usually a husband will not deprive his wife from any property. In Ex.A1 there is a reference of defendant No.1 mentioning that plaintiff No.1 was looking after late
T.Ramulu and his wife (defendant No.1) in all respects and he hoped that in future also he would take care of them. It is true that there is no provision made in Ex.A1 for defendant No.1. One cannot deny that a Will Deed comes into force only after the death of testator. A person can execute any number of testaments during his/her 31
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lifetime but the last testament before his/her death would be valid.
In Ex.A1 late T.Ramulu has mentioned that he has liberty during his lifetime to revoke Ex.A1. As already stated, Ex.A1 was never revoked by late T.Ramulu nor Ex.A1 was revoked by any other testament executed by late T.Ramulu. Mere absence of making provision for defendant No.1 in Ex.A1 cannot be taken as a suspicious circumstance.
31.Ex.A46 is the registered Sale Deed executed in favour of defendant No.1 by Mahajan Jaggaiah on 12.04.1982 in respect of
Ac.1.01 Gts. in Sy.No.152/2, situated at Gimma-K Village. DW1 admitted in cross-examination that property covered by Ex.A46 was purchased in the name of defendant No.1 by late T.Ramulu.
Property covered by Ex.A46 was sold away by defendant No.1 in favour of Gajula Bhavani on 17.03.1997 under Ex.A45 i.e. after the death of late T.Ramulu. It was highly probable that since no provision was made by late T.Ramulu in Ex.A1 for defendant No.1 he had purchased the land covered by Ex.A46 in 1982 for her security.
DW1 also admitted in cross-examination that late Peddolla Ramulu used to save money in banks and sometimes he used to purchase gold. In this background, absence of making provision for defendant
No.1 in Ex.A1 cannot be taken as a suspicious circumstance.
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32.Learned counsel for defendants contended that Ex.A1 does not contain recital that contents were read over and explained to testator by name Late T.Ramulu which is also one of the suspicious circumstances, on which ground Ex.A1 has to be declared as null and void. It is true that at the end of Ex.A1 there is no recital that the contents were read over and explained to late T.Ramulu.
Correctness of the contents of Ex.A1 Will Deed was certified in the body itself in last but one sentence in Ex.A1. Therefore, absence of recital separately in Ex.A1 that its contents were read over and explained to late T.Ramulu is insignificant.
33.Learned counsel for defendants contended that late T.Ramulu does not know Urdu language but Ex.A1 is in Urdu language which is also a suspicious circumstance. It is true that Ex.A1 was written in
Urdu language and along with English translation it was marked as
Ex.A1. There is no signature of late T.Ramulu on Ex.A1. He has put his thumb impression on each page of Ex.A1, besides giving left thumb impression in the presence of Sub-Registrar concerned.
There is no evidence on record to show that late T.Ramulu does not know any other language except Telugu. Merely because Ex.A1 is in
Urdu language it cannot be declared as invalid document. As 33
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already stated, the correctness and truthfulness of the contents of
Ex.A1 was certified in last paragraph of the body of Ex.A1.
Therefore, the above contention learned counsel for defendants holds no water.
34.Learned counsel for defendants contended that till 2007 plaintiff No.1 has not produced Ex.A1 Will Deed before MRO, RDO or any other authority, except producing the same for the first time
before the Joint Collector, Adilabad and, therefore, it has to be taken
as one of the suspicious circumstances surrounded by Ex.A1.
Admittedly, Ex.A1 is a registered Will Deed and it is not an unregistered Will Deed. It is highly impossible to create registered
Will Deed with ante-date. It is true that a Will Deed is not a compulsory registerable document and even the unregistered Will
Deed can be relied upon provided it is proved as per law. However, creation of registered Will Deed with ante-date does not arise. Ex.A2 is the rectification register ordering mutation of name of plaintiff
No.1 in respect of suit land basing on Proceedings No.B/3049/96,
dated 15.07.1996 of MRO, Jainath which proceedings were passed on
the basis of Ex.A1 Will Deed. Document number of Ex.A1 and the date of death of late T.Ramulu have been clearly mentioned in
Ex.A2. Pursuant to Ex.A2 name of plaintiff No.1 was mutated in 34
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revenue records from the year 1996-97 in respect of suit land. In
Ex.A48 Joint Collector, Adilabad has wrongly mentioned that plaintiff
No.1 maintained silence without producing registered Will Deed (Ex.A1) before MRO, Jainath ignoring Ex.A2. Ex.A2, which is issued by Revenue Authorities, cannot be disputed by defendants. 3 years after the death of late T.Ramulu MRO, Jainath issued Proceedings,
dated 15.07.1996, pursuant to which suit land was mutated in favour
of plaintiff No.1. Ex.A44 also shows that plaintiff No.1 submitted application, dated 16.11.1993 to Sarpanch, G.P., Gimma to mutate his name in respect of house property on the basis of Ex.A1 Will
Deed. Therefore, the above contention of learned counsel for defendants is untenable. No suspicious circumstances surrounded by Ex.A1 were established by defendants. It is nowhere elicited by defendants that late T.Ramulu was not in fit state of mind at the time of execution of Ex.A1 and that he was suffering from ill health.
When there are no suspicious circumstances surrounded by Ex.A1 court can draw presumption under Section 90 of the Evidence Act in respect of Ex.A1. Though presumption under Section 90 of the
Evidence Act is a rebuttable presumption defendants failed to rebut the said presumption.
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35.There is another piece of evidence adduced by plaintiffs in corroboration to Ex.A1. Ex.A47 is the true copy of explanation submitted by defendant No.1 in PLC.No.20/2002 on 03.08.2002
before DLSA, Adilabad in reply to Ex.A43. Ex.A43 shows that one
Tirumaneni Mukund Rao S/o Ananthaiah submitted the said representation, dated 22.06.2002 to District Judge, Adilabad during
Legal Literacy Camp held in Gimma Village stating that in 1987-88 late T.Ramulu and defendant No.1 in the presence of village elders took him in adoption, kept him in their house for 5 years but plaintiff
No.1, who is nephew of late T.Ramulu, forcibly necked him out from the house and occupied the immovable property, besides driving away defendant No.1 from the house without looking after her and by stating so T.Mukund Rao prayed for justice. Ex.A43 representation of T.Mukund Rao was numbered as PLC.No.20/2002.
36.Ex.A47 is seriously disputed by defendants stating that it was created by plaintiff No1, defendant No.1 never submitted said explanation and Ex.A47 cannot be looked into because it does not contain thumb impression or signature of defendant No.1. On the other hand, it is the contention of learned counsel for plaintiffs that from DLSA, Adilabad which is the public authority, Ex.A47 was obtained and filed in court and because of lapse of time thumb 36
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impression of defendant No.1 faded itself and Ex.A47 can be relied upon by court.
37.IA.No.132/2017 was filed by plaintiffs in trial court praying the court to call for original counter of defendant No.1 in PLC.No.20/2002 from the office of DLSA, Adilabad. The said petition was dismissed on merits by learned trial court by order, dated 07.09.2017 and it has become final. During the pendency of appeal in A.S.No.9/2020 plaintiffs filed IA.No.941/2023 with same relief praying the court to call for original of Ex.A47 from DLSA, Adilabad and it was dismissed on merits on 12.01.2024. The question is whether Ex.A47 can be relied upon by court or not, which was already marked in trial court.
38.Ex.A47 was marked through PW1 subject to objection with regard to its relevancy. No objection was raised by defendants with regard to marking of Ex.A47. Marking of document, relevancy and proof of a document are different facets. Relevancy of Ex.A47 has to be gone into at the time of disposal of suit. Secretary, DLSA,
Adilabad has certified Ex.A47 as true copy of original and it was issued by competent authority from the official record maintained by the said office. Unless thumb impression of author of Ex.A47 was present on Ex.A47 by the date of issuing it Secretary, DLSA, Adilabad 37
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ought not to have attested it as true copy. Since Ex.A47 is a certified xerox copy by efflux of time the thumb impression faded. The name and other particulars of defendant No.1 are very much present in
Ex.A47. Therefore, there cannot be any legal embargo to rely on
Ex.A47, particularly as it is a true copy certified by Secretary, DLSA,
Adilabad.
39.In Ex.A47 defendant No.1 has denied the contents of Ex.A43, including the adoption pleaded by Mukund Rao, and categorically mentioned in Para No.3 of Ex.A47 that plaintiff No.1 was brought by herself and her husband to their house as their sole legal heir in 1974, since then plaintiff No.1 was looking after them since 1974 and late T.Ramulu (husband of defendant No.1) executed Will Deed bequeathing the properties situated at Gimma-Khurd and Gimma-
Buzurg Villages of Jainath Mandal and plaintiff No.1 has been serving her family since then. Ex.A47 clinches the entire issue because defendant No.1 is the author of the said document and she has mentioned therein the factum of bringing plaintiff No.1 to Gimma-
Khurd Village by late T.Ramulu and defendant No.1 and execution of
Ex.A1 Will Deed in his favour bequeathing the properties. It appears that by the date of Ex.A47, which was received in DLSA, Adilabad on 03.08.2002, there were no disputes between plaintiff No.1 and 38
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defendant No.1 and plaintiff No.1 was looking after defendant No.1 well by that time.
40.Learned counsel for defendants contended that Ex.A47 is not relevant for the purpose of this case. On the other hand, learned counsel for plaintiffs contended that since Ex.A47 was submitted by defendant No.1 to DLSA, Adilabad in reply to Ex.A43 it is a relevant document, which has to be taken into consideration. In support of his contention, learned counsel for plaintiffs has placed reliance on the decision of the Hon'ble Supreme Court in Sitaramacharya v.
Gururajacharya reported in AIR 1997 Supreme Court 806, referring to Sections 18 and 31 of the Evidence Act, wherein it was held that admission made by the party would be relevant under
Section 18 of the Evidence Act and as per Section 31 of the Evidence
Act admissions are not conclusive proof of the matters admitted but they may operate as estoppel. Plaintiffs are not solely depending on
Ex.A47 but they are only relying on it as a corroborative piece of evidence to the other evidence. Ex.A47 containing the admissions of defendant No.1 can be taken as corroborative piece of evidence to the evidence already available on record, as discussed supra, in respect of Ex.A1 Will Deed executed by late T.Ramulu in favour of plaintiff No.1.
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41.Learned counsel for defendants contended that in Ex.A1 it is mentioned that suit land and lands in Sy.Nos.144/B and 144/E are situated in Gimma-Buzurg Village, whereas lands in Sy.Nos.144/B and 144/E are situated in Gimma-Khurd Village and on that ground alone Ex.A1 has to be disbelieved. Learned counsel for plaintiffs contended that merely because there is a clerical error in Ex.A1 it cannot be a circumstance to disbelieve Ex.A1. In support of his contention, he has drawn the attention of court to Section 78 of the
Indian Succession Act which lays down that if the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect. There are two
Illustrations to Section 78 of the Indian Succession Act explaining as examples for erroneous particulars. It is an admitted fact that late
T.Ramulu was the original owner of lands in Sy.Nos.144/B and 144/E of Gimma-Khurd Village. In OS.No.46/2010 in the Schedule of property it is mentioned as Gimma-Khurd Village. Ex.B1 registered
Sale Deed executed by defendant No.1 in favour of defendant No.2 on 26.05.2005 also contains the name of the village as Gimma-Khurd and not Gimma-Buzurg Village and the boundaries of these lands are 40
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also not in dispute. It is not the case of defendants that with same survey numbers and extent and boundaries late T.Ramulu had lands in Gimma-Khurd Village and Gimma-Buzurg Villages. Therefore, the mistake in Ex.A1 regarding the name of the village in respect of lands in Sy.No.144/B and 144/E has to be taken as clerical one. It may also be mentioned that in Ex.B4 also the name of village in respect of lands in Sy.Nos.144/B and 144/E is mentioned as Gimma-
Buzurg village. From this angle also, the said mistake occurred in
Ex.A1 can be taken as clerical one and it can be ignored as insignificant.
42.Above discussion leads me to conclude that plaintiffs clinchingly established that Ex.A1 Will Deed was executed by late
T.Ramulu in favour of plaintiff No.1 bequeathing suit land admeasuring Ac.0.07 Gts. in Sy.No.68 and Ac.18.25 Gts. in Sy.No.79, total extent being Ac.18.32 Gts., situated at Gimma-Buzurg Village,
Jainath Mandal, Adilabad District (suit land in this appeal), Ac.3.36
Gts. in Sy.No.144/B, Ac.3.20 Gts. in Sy.No.144/E, total extent being
Ac.7.16 Gts., situated at Gimma-Khurd Village, Jainath Mandal,
Adilabad District (suit land in AS.No.9/2020) and House No.7 (old), new number being 1-11 and House No.507 (old), new number being 1-12 with cattle shed, situated at Gimma-Khurd Village, Jainath 41
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Mandal, Adilabad District in favour of plaintiff No.1 and Ex.A1 was the last testament by late T.Ramulu. I hold that Ex.A1 Will Deed is true and valid and there are no suspicious circumstances surrounding Ex.A1. Point No.1 is accordingly answered in favour of plaintiffs and against the defendants.
POINT NO.2:
43.On Point No.1 court held that Ex.A1 Will Deed executed by late
T.Ramulu in favour of plaintiff No.1 in respect of suit land situated in
Gimma-B village, Ac.3.36 Gts in Sy.No.144/B, Ac.3.20 Gts in
Sy.No.144/E, total extent being Ac.7.16 Gts., and House No.7 (new
No.1-11) and House No.507 (new No.1-12) of Gimma-K village is true and valid. The house properties reflected in Ex.A41, Ex.A42 and
Ex.A44 are not the subject matter of this appeal and other two appeals. The fact that all these properties, including suit land, being the self acquired properties of late T.Ramulu is not in dispute. All these properties were bequeathed by late T.Ramulu in favour of plaintiff No.1 under Ex.A1 Will Deed, which came into force on 09.05.1993 on account of death of late T.Ramulu, and this court has upheld the validity of Ex.A1 holding that defendant No.1 has no right or authority to execute Ex.B4 Will Deed in favour of defendant No.3 in respect of suit land, situated at Gimma-B village and house 42
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properties situated at Gimma-K village. Therefore, strictly speaking, without any further discussion, Ex.B4 has to be held as in-valid document.
44.Even if assuming for a moment for the sake of discussion that defendant No.1 has right and authority to execute Ex.B4, it has to be seen whether it is true and valid and that there are no suspicious circumstances surrounding Ex.B4. Learned counsel for defendants contended that being the wife of late T.Ramulu with absolute rights defendant No.1 executed Ex.B4 in favour of defendant No.3 with free will and consent and conscious mind because defendant No.3 looked after her at the last leg of her life, particularly as defendant No.3 is close relative of defendant No.1. Learned counsel for defendants also contended that evidence of DW2 clinchingly proved Ex.B4 Will
Deed executed in favour of defendant No.3. On the other hand, learned counsel for plaintiffs contended that at the first instance defendant No.1 had no authority and right to execute Ex.B4, prior to her death defendant No.1 was suffering from serious ill health and bed ridden and that defendant No.3 with the help of his maternal uncle (DW2) and defendant No.2 brought into existence Ex.B4 and, therefore, Ex.B4 cannot be relied upon.
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45.Burden heavily lies on defendant No.3 to establish Ex.B4.
Defendant No.3 is the propounder of Ex.B4 Will Deed. Testatrix of
Ex.B4 (defendant No.1) died even before numbering the suit in OS
No.39/2010. Even according to Ex.B4, defendant No.1 was aged 100 years as on the date of Ex.B4. Ex.B4 also shows that she was permanent resident of Gimma-K village, Jainath Mandal, Adilabad
District and temporary resident of house of Gopalrao Ramanna
Chintawar, Rani Laxmibai Ward, Pandharkawda, Kelapur Taluq,
Yeotmal District, Maharashtra State. Ex.B4 is dated 10.06.2010, by which time plaint in OS No.39/2010 was already filed by Testatrix and it was pending for numbering in court. It is also an admitted fact that Testatrix (defendant No.1) died on 21.06.2010, which means that within 11 days of execution of Ex.B4 defendant No.1 died. DW2 admitted that defendant No.1 was diabetic patient and he did not know whether defendant No.1 underwent eye operation. DW2 could not state the reason for the death of defendant No.1. From these statements of DW2 and because of very short gap of time between the date of execution of Ex.B4 and death of defendant No.1 a reasonable or prudent man would raise a doubt as to whether defendant No.1 was in sound state of mind to execute Ex.B4. This is one of the suspicious circumstances surrounding Ex.B4.
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46.DW2 and Swapnil Ramesh Mamidwar (Defendant No.2 in
OS.No.46/2010) are the attesting witnesses to Ex.B4. In a Will Deed
like Ex.B4 attesting witnesses play important role. DW1 admitted that DW2 is his maternal uncle. DW1 also admitted that his mother and mother of Swapnil are real sisters and Gopal Rao Chintawar is the maternal grandfather of DW1. DW1 and DW2 admitted that
Swapnil resides in Sunna village, which is at a distance of 12 Kms from Pandharkawda. DW1 and Swapnil are the nephews of DW2 as they are the sons of his sisters. It is also an admitted fact that defendant No.3 (propounder of Ex.B4) is the son of Mukund Rao, who is nephew of late T.Ramulu. Swapnil is also the vendee of Ex.B1 registered sale deed alleged to have been executed on 26.05.2005 in his favour by defendant No.1 in respect of Ac.7.29 Gts of land in
Sy.No.144/A2 and Ac.0.01 Gts in Sy.No.144/AA of Gimma-K village.
Therefore, both the attesting witnesses to Ex.B4 have to be taken as interested witnesses, who are very much interested in defendant
No.3. There is no explanation from defendant No.3 as to why the close related witnesses to defendant No.3 were taken as attesting witnesses at the time of execution of Ex.B4. It shows active participation of defendant No.3 in getting Ex.B4 executed by defendant No.1. Learned counsel for plaintiffs has placed reliance on the decision of Hon’ble High Court of Andhra Pradesh in Addepalli 45
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Venkata Laxmi v. Ayinampudi Narsimha Rao reported in AIR 1994 Andhra Pradesh 72, wherein it was held that when the
Testator dies immediately after execution of Will Deed and when the attestors to the will deed are closely related to beneficiary under will they have to be taken as suspicious circumstances. The facts of the said decision are aptly applicable to the present case. The factum of death of Testatrix (defendant No.1) within 11 days of execution of
Ex.B4 and both the attesting witnesses to Ex.B4 being closely related to propounder (defendant No.2) have to be taken as suspicious circumstances surrounding Ex.B4.
47.There is no whisper in the evidence of DW1 that he had looked after the welfare of defendant No.1 at any point of time. After the amendment of plaint in OS No.39/2010 on account of death of defendant No.1 herein no consequential amendments were sought and carried out by defendant No.3 herein and there are no pleadings at all by defendant No.3 in OS.No.39/2010 and DW1 has simply repeated in verbatim the averments of plaint in OS No.39/2010 of defendant No.1 herein in his chief examination affidavit, in respect of which facts he has no personal knowledge. At least, in his chief examination affidavit, DW1 has not mentioned anything about his looking after the welfare of defendant No.1. DW1 deposed that he 46
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has studied Degree, B.Ed. and practiced as Advocate for 5 to 6 years in Nanded. DW1 also deposed that his father worked in Bombay,
Aurangabad, Nanded, Biloli, Nagpur, Pandharkwada of Maharashtra
State in Excise Department and retired in the year 2011. DW1 further deposed that his parents used to reside at the place of work of his father. Evidence of DW1 shows that he completed his education in 2005 and practiced as Advocate in Nanded for 5 to 6 years, which means that till the year 2011 he was staying in Nanded as an Advocate. It is not even the case of defendant No.3 that at least in weekends he was coming to Gimma-K village and used to look after defendant No.1. Therefore, court is unable to convince itself to accept that out of love and affection recognizing the services rendered by defendant No.3, defendant No.1 executed Ex.B4 in his favour. From this angle also, Ex.B4 becomes a suspicious one.
48.In Ex.B4 the temporary residence of defendant No.1 was shown as the house of Gopalrao Ramanna Chintawar, Rani Laxmibai Ward,
Pandharkawda, Kelapur Taluq, Yeotmal District, Maharashtra State, who is none else than father of DW2. In Ex.B4 permanent residence of defendant No.1 is shown as Gimma-K village. To Ex.B4 no residential proof of defendant No.1 was annexed except mentioning her temporary address as Rani Laxmibai Ward, Pandharkawda. In 47
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plaint of O.S.No.39/2010 residence of defendant No.1 was shown as
Gimma-K Village and it is nowhere mentioned that defendant No.1 was temporarily staying in Pandharkawda. The address of father of
DW2 was mentioned in Ex.B4 as temporary address of defendant
No.1 for the purpose of registering Ex.B4 in Kelapur. It is an admitted fact that defendant No.1 died in Chalbardi Village of
Maharashtra State where daughter of her sister stays. It appears that only for execution of Ex.B4 defendant No.1 was taken to
Kelapur. It is not the case of defendant No.3 that he has performed last rites of defendant No.1. From this angle also, court is unable to believe that Ex.B4 is not surrounded by any suspicious circumstances.
49.While considering the genuineness of Ex.B4, court should also briefly refer to Ex.A1 at the cost of repetition. Late T.Ramulu executed Ex.A1 registered Will Deed on 31.05.1974 in favour of plaintiff No.1 and late T.Ramulu died on 09.05.1993 i.e. 19 years after the execution of Ex.A1. In Ex.A47 defendant No.1 affirmed that she had knowledge of Ex.A1 registered Will Deed executed by late
T.Ramulu in favour of plaintiff No.1 and also mentioned that he was looking after her well by the date of Ex.A47 which is dated 03.08.2002. Even prior to 03.08.2002 itself suit land was mutated 48
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by revenue authorities in favour of plaintiff No.1. However, lands in
Sy.No.144/B and 144/E of Gimma-K village and house properties were not mutated in the name of plaintiff No.1. The explanation of plaintiff No.1 is that since plaintiff No.1 suffered from paralysis some time after applying for mutation he could not follow up the matter and on coming to know about sale of the said property under Ex.B1 he has filed the suit in OS No.46/2010. The factum of plaintiff No.1 suffering from paralysis after his retirement, year of retirement being 2001, is not in dispute. Therefore, the said explanation of plaintiff
No.1 cannot be disbelieved.
50.It appears that some time between the years 2002 and 2010 the relations between plaintiff No.1 and defendant No.1 strained, because of which defendant No.1 executed Ex.B1 in favour of defendant No.2 and she has also executed Ex.B4 in favour of defendant No.3. Court has given reasons on Point No.1 recording finding that Ex.A1 is true and valid without there being any suspicious circumstances. However, in respect of Ex.B4 there are several suspicious circumstances, as discussed supra. When Ex.A1 and Ex.B4 are juxtaposed and examined simultaneously one should believe Ex.A1 as true and valid because the preponderance of probabilities regarding genuineness of Ex.A1 Will Deed executed by 49
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late T.Ramulu in favour of plaintiff No.1 are more when compared to
Ex.B4. Therefore, I hold that Ex.B4 Will Deed is null and void and not binding on plaintiffs and no rights would accrue to defendant No.3 on the basis of Ex.B4. Point No.2 is accordingly answered in favour of plaintiffs and against defendants.
POINT NO.3:
51.Court has carefully perused the common judgment, dated 09.12.2019 in OS.No.39/2010 and OS.No.46/2010 passed by learned
Senior Civil Judge, Adilabad, under which both the suits came to be
dismissed. Learned trial court has not appreciated the evidence on record, both oral and documentary, in proper perspective and reached erroneous conclusion by disbelieving Ex.A1 Will Deed.
Similarly, learned trial court has also not properly appreciated the evidence on record in so far as it relates to Ex.B4 Will Deed ignoring the fact that defendant No.1 had no authority or right to execute
Ex.B4 in favour of defendant No.2 because the properties covered by it were already bequeathed by late T.Ramulu under Ex.A1 in favour of plaintiff No.1. Learned trial court has erroneously placed reliance on Ex.B4 though it is surrounded by several suspicious circumstances, as discussed supra on Point No.2. Learned trial court disbelieved Ex.A47 submitted by defendant No.1 to DLSA, Adilabad 50
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in PLC.No.20/2002 only on the mere ground that the thumb impression of defendant No.1 was not visible on it though its marking was not objected by defendants though objection was raised with regard to its relevancy. Learned trial court failed to appreciate that Ex.A47 is a strong corroborative piece of evidence in order to place reliance and believe Ex.A1 Will Deed executed by late
T.Ramulu in favour of plaintiff No.1. This court has given vivid reasons giving finding on Point No.1 that Ex.A1 is true and valid.
Similarly, this court has also assigned reasons on Point No.2 holding that Ex.B4 Will Deed executed by defendant No.1 in favour of defendant No.2 is null and void and cannot be relied upon.
52.Today AS.No.11/2020 filed by respondents herein is dismissed confirming the judgment and decree, dated 09.12.2019 in
OS.No.39/2010 passed by the Senior Civil Judge's Court, Adilabad but
by assigning different reasons. This court has allowed AS.No.9/2020 in OS.No.46/2010 filed by appellants herein setting aside the judgment and decree dated 09.12.2019 in OS.No.46/2010 and consequently decreeing the suit in OS.No.46/2010 declaring that they are entitled for declaration of title and recovery of possession in respect of land admeasuring Ac.3.36 Gts. in Sy.No.144/B and Ac.3.20
Gts. in Sy.No.144/E, total admeasuring Ac.7-16 Gts., situated at 51
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Gimma-Khurd Village, Jainath Mandal, Adilabad District. The grounds mentioned in the Memorandum of Appeal have been dealt with at length on Point Nos.1 and 2 and they need no reiteration again. In view of the findings on Point Nos.1 and 2 and in view of the dismissal of AS.No.11/2020 and allowing AS.No.9/2020 (dismissing
OS.No.39/2010 and decreeing OS.No.46/2010), as a necessary
corollary, adverse findings given by the learned trial court against appellants/plaintiffs in respect of Ex.A1 Will Deed and Ex.B4 Will
Deed need to be set aside and consequently, cross-objections in this appeal have to be allowed. Point No.3 is accordingly answered in favour of appellants/cross-objectors/plaintiffs and against respondents/defendants.
53. In the result, Cross-Objections are allowed with costs and the adverse findings given by Senior Civil Judge's Court, Adilabad in common judgment and decree, dated 09.12.2019 passed in
OS.No.39/2010 and OS.No.46/2010 against Appellants/Cross-
objectors, who are defendants in OS.No.39 of 2010 and plaintiffs in
OS.No.46/2010, with regard to Registered Will Deed Document
No.775/2010, dated 10.06.2010 (Ex.B4) and registered Will Deed 52
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Document No.10/1974, dated 31.05.1974 (Ex.A1) are hereby set aside.
Dictated to the Stenographer from Paragraphs 1 to 17 and 51
to 53, transcribed and typed by her and typed to my dictation from Paragraphs 18 to 50, corrected and pronounced by me in open court on this the 22 nd day of March, 2024. Digitally signed by Ch.V.R. R Ch.V.R. RVaraprasad VaraprasadDate: 2024.03.26 11:53:41 +0000
PRL. DISTRICT JUDGE
ADILABAD