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IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE:
CHITTOOR
PRESENT: SHRI Y.SRINIVASA RAO
III ADDITIONAL JUNIOR CIVIL JUDGE
FAC II ADDITIONAL JUNIOR CIVIL JUDGE, CHITTOOR
TUESDAY, THE THIRTY FIRST DAY OF DECEMBER
TWO THOUSAND AND THIRTEEN
866 OF 2004
ORIGINAL SUIT NO.
Between
1. Smt. Peda Papamma rep. by Power of Attorney Holder Chittemma, W/o Munaswamy, 60 years, Hindu, Cultivation, Tekumanda village, Bangarupalem mandal, Chittoor District. (Added as orders in I.A.No. 454 of 2007 dt. 21-02-2008)
2. Smt. P.Lakshmi Devi W/o P.Subramanyam, D/o Chinnakka @ Chinnamma, 30 years, Hindu, Cultivation, residing at Garnimitta vari palle village, Rompicherla Mandal, Chittoor,
3. Smt. Sundaramma W/o Munirathnam, 45 years, Hindu, Cultivation, Residing at Nehru street, Bangarupalem post and mandal, Chittoor District. … Plaintiffs.
And
1. Shri. M.Nagarathnam S/o Abbanna, 34 years, Hindu,Cultivation, residing at Medara street, Bangarupalem village and post, Chittoor District.
2. Shri Subbaiah S/o Ramaiah, 38 years, Hindu, Cultivation, residing at Tekumanda village and post, Bangarupalem mandal, Chittoor District.
3. Shri Mogilappa S/o Krishnappa, 39 years, Hindu, Cultivation, residing at Tekumanda village and post, Bangarupalem mandal, Chittoor District. … Defendants.
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This suit is coming before me for final hearing on this day i.e 27- 12-2013 in presence Shri N.R.Venkata Ramana, Advocate for the plaintiffs; and Shri K. Pattabhi, Advocate for defendants no.1 and 2; defendant no.3 was remained exparte; and having stood over for consideration and on hearing of the both sides, this Court delivered the following
J U D G M E N T :-
1.This suit is initially filed by the plaintiffs for bare perpetual injunction and thereafter the relief was amended as per orders in
I.A.No.488/2005, dt. 10-08-2005. This suit is now for declaration of right of the plaintiffs over the plaint schedule mentioned property and to grant permanent injunction restraining the defendants, their men, agents, servants and other followers in any manner interfering with the plaintiffs’ peaceful possession and enjoyment of the plaint schedule mentioned property and for costs. The schedule attached to this suit shows the property alleged to have been possession and enjoyment of the plaintiffs under following :
Survey No. 88/9 A Ac. 0-80 cents Survey No. 88/9 B Ac. 0-80 cents Survey No. 88/9 C, Ac. 0-80 cents
Its boundaries are:- East; land of Venkatappa West: land of Krishnappa North: land of Ramaiah South: land of C.Subramanyam.
2.The case of plaintiff is in brief as follows: This suit schedule mentioned land is stated to have situated in Tekumanda village,
Bangarupalem mandal, Chittoor district. The survey numbers that are assigned to the land are under S.No.88/9A, B, and C, its total extent is
Ac.2-40 cents. it is a dry land. The basis on which the relief of declaration and permanent injunction is claimed in this suit is that defendants are said to have been interfering the peaceful possession and enjoyments of the land by the plaintiff and defendants are said to 3 have claiming absolute right over the said land. 1st , 3rd plaintiffs and mother of 2nd plaintiff (Chinnakka) are sisters. Their mother (Akkamma) was said to have executed a Registered Gift settlement, dt. 31-01-1989 in favour of 1st , 3rd plaintiffs and Chinnakka in respect of the suit land.
Since from execution of this document, those have been in possession and enjoyment of the same by raising crops thereon. The sons of the said Akkamma died. The said Akkamma also died. The mother of 2nd plaintiff Chinnakka also died on 11-02-2000 leaving behind 2nd plaintiff as her legal heir. The plaintiffs contend that the defendants are strangers to the suit property.
3.Plea of defendants in brief as follows:- Out of these three defendants, 3rd defendant did not contest the suit, nor did he file written statement, of course, he remained exparte. Only defendants nos.1 and 2 are contesting the suit. Out of these two, D.1 admits in his written statement that he is nothing to do with the suit property and he never interfered with the plaint schedule mentioned lands. It is thus
D.2 is strongly contesting this suit by filing written statement and
additional written statement. The basis for contention is such that the
plaint schedule mentioned property, which is allegedly a settlement land, originally belongs to one Enne Venkataswamy who is the elder brother of 2 nd defendants’ father. The said Venkataswamy is said to be unmarried and he was alleged to have been granted patta in respect the land in dispute. The theory of the plaintiffs is denied by this defendant no.2 as false. His further contention is that the said
Venkataswamy executed an un registered Will, dt.09-02-1984 in his favour and that the said Venkataswamy died on 15-05-1985. After death of the said Venkataswamy, defendant no.2 has been enjoying the suit land by raising various crops thereon. Further, the cause of 4 action mentioned in the plaint is false and that the suit is vexatious and thus defendants pray to dismiss the suit with costs.
4.Based on the pleadings of both parties and after hearing of both sides, the following issues are settled for trial.
5.The issues in this suit are:-
Issues, dt. 07-07-2005 :
1. Whether the plaintiff is entitled to get the
relief of permanent injunction as prayed
for?
2. To what relief?
Additional Issues, dt. 12-03-09:-
1. Whether the plaintiffs are entitled for the relief of declaration as prayed for?
2. Whether the plaintiffs are in possession of the plaint schedule property?
6.During the course of trial, on plaintiff side, P.Ws.1 to 3 are examined and Exs A.1 to A.7 are marked; on defendant’s side, D.W.1 to
D.W.5 are examined; Exs Ex.B.1 to Ex.B.5 are marked; Ex.C.1 to C.
13 are marked.
7.Heard both sides.
8.Issue 1 and additional issues 2 and 3 :-
Issue 1 and additional issues 2 and 3 are inter linked and therefore, to avoid confusion, these are discussed together as infra.
9.While the plaintiffs contend that the lands covered under
S.No.88/9 A,B and C are under exclusively enjoyment of them much prior to the execution of the Registered Gift Settlement deed, dt.31-01- 1989, the defendants, more particularly 2nd defendant, contend that the suit schedule mentioned land is Settlement land and he was bequeathed the said land by virtue of unregistered will dt.09-08-1984,
Exhibit. B.5 and the plaintiffs are said to have no manner of right over the said land.
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10.The facts the sons of the said Akkamma died; the said Akkamma also died; the mother of 2nd plaintiff Chinnakka also died on 11-02-2000 leaving behind 2nd plaintiff as her legal heir and One Venkataswamy who is executant of unregistered will, dt.09-08-1984 was no more and he had suffered from leprosy are all potent factors which are undisputed
11.To understand the locality in more detail and obtain an impersonal plan in regard to the lands which are alleged to be in enjoyment of the plaintiffs and defendants, a commissioner was deputed to submit a plan and the portions that are marked as in
Exhibits C.12 and A.13.
12.If these defendants people, more particularly 2nd defendant, had been enjoying the lands proximate to and abutting upon or in the marked portions in the Commissioner’s plan Exhibits C series and they also by virtue of the un registered will, dt.09-08-1984 had enjoyed these patches of alleged land in dispute as parts of their lands, then of course the plea of defendants stand good. But if on the other hand it is established that the recitals of Ex.A.1, during her life time, Akkamma had executed a Registered Gift settlement, dt. 31-01-1989 in favour of 1st , 3rd plaintiffs and Chinnakka in respect of the suit land and since execution of this document, those had been in possession and enjoyment of the same by raising crops thereon as this court will now show the plaintiffs proved it, then it is stupendous meaningless to suppose that defendants would not have been aware of the enjoyment by the plaintiffs people of the suit schedule mentioned land, if it was already in the enjoyment of the plaintiffs.
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13.I will now show the reasons justifying how the plaintiffs have proved their right of enjoyment over the suit land based on the well settled principle of law that possession goes with title. ; I will also show with valid reasons the theory of defendant is an artificial theory and the un registered will, dt.09-08-1984 is seriously suspicious.
14.That these plaintiffs were enjoying these properties as parts of their lands is revealed from the first opposition to stop interference of defendants by filing suit for permanent injunction in 1998 (O.S.No.654 of 1998 ). Of course, this suit was dismissed for default. Exhibits A. 2 to A.6 which are issued by the revenue officials according to which the
Revenue officials assure plaintiffs have been enjoying the plaint schedule mentioned property.
15.The fact that defendants people never cared to send for legal notice about these encroachments, nor did take action in the matter of arresting any further enjoyment of schedule property till they thought of filing this suit in 2004 as a point that strongly supports the plaintiffs’ enjoyment adversely.
16.Of course, elaborate routine measures are alleged to have been taken subsequent to the 1984 from 1998 as per Exhibits B series. But,
before I discuss those documents and the truth or otherwise of any
regular anything that are alleged to have taken place on the said documents I will point out that at least long before 1984 by some decades, the plaintiffs must have been enjoying the portions now alleged as encroachments as part of their properties.
17.As regards the alleged plaint schedule land is taken as per entries Exhibits A series. On that occasion sketches of the land are drawn up as Exhibits C series and this land is said to fall within the boundaries as mentioned in the plaint schedule, Exhibit C.11 and of 7 course as already pointed out the extents alleged to have been encroached upon by the plaintiffs are much smaller.
18.These documents, Exhibits A series with fulcrum of Exhibits C series clearly indicate that even in the year 1984 the plaint schedule land was brought under cultivation by these people and their right and title to the plaint schedule land has been recognized as evinced in
Exhibits A.1 to A.6. If in addition to the land, the marked portion,
Exhibit C.13 were under their cultivation
19. There are some document between the defendant no. 2 and
Venkataswamy, Exhibit B.5 this is an unregistered Will as old as 1984.
No interference adverse to the present plaintiffs could be made from the said unregistered Will.dt.09-08-1984.
20.In same language as Exhibit B.6 (Cist receipts 7 in nos). All these documents stand in the name of one A.Venkataswamy. Survey nos.88/9ABC are absent in Exhibit B.6. All the lands held by these defendants people are described to carry Rs. 0.20 paisa per year in respect of another lands covered under S.Nos. 175, 34, 410 and 2A. the lands referred to in these documents, Exhibits B.6 (Cist receipts) are lands other than the plaint schedule mentioned land. Exhibit B.9/Death certificate did not even contain surname of the Venkataswamy. Ex.B.3 is contemporary on the face of it. Ex.B.4 is rough patta stands in the name of Venkataswamy. It is issued by Assistant Settlement Officer. As rightly pointed by the learned counsel for the plaintiffs in his written arguments, this document was rejected by the Revenue Divisional
Officer under his proceedings no.G.1653/03,dt.13-07-2005, Exhibit A.6.
21. The other documents, Exhibits B series are contemporary to
Exhibits A series. They are useful in showing that the defendants were enjoying the lands covered under S.Nos. 174, 34,410 and 2A. The 8 document, Exhibit B.2/1B Namuna is also useful to throw light on another aspect of the case, viz, that these plaintiffs people have been in possession and enjoyment of suit land covered under S.Nos. 88/9A, 88/9B, and 88/9C.
22.Whether the enjoyment of the land by defendants covered under
S.Nos 174, 34, 410 and 2A creates any right in favour of these defendants or under what conditions the Revenue officials would entitle to assess the land or interfere with cist imposed upon the same, whether these defendant people were exactly in the position of mustajars or rent farmers or they were vested with any independent title in themselves so far as the Tekumanda Village is concerned, in what relationship or tenure they stand as regards the Revenue officials, whether there is anything by way of service still subsisting so far as these people are concerned are not matters directly in issue in this suit. In the present suit, this court is only concerned with enjoyment as of right of the plaint schedule land, whether defendants or plaintiffs have their exclusive right and title over the said land, which are now alleged to be in possession of these defendant people.
23.It is not that the locality is such as could not be brought under effective control and possession of plaintiffs. On the other hand this court has seen even by the year 1984, the plaint schedule land which was fertile for ground nut cropping has long ago been brought under control and of right these plaintiff people were enjoying the plaint schedule mentioned land, and even the Commissioner notes in Exhibit
C. 1 to 13 that the soil of the plaint schedule land is excellently suited for raising ground nut crop that land is full of ground nut crop which itself is profitable concern and those plaintiffs people in occupation of these land used now and then for cultivation of ground nut crop. It can fairly be stated that more than 21 years ago the plaint schedule land 9 becomes an ‘El Dorado 1’ for the livelihood of the plaintiffs’ people. I will also show presently that the plaintiffs have been dealing with this land inter se by cultivating different crops and all the present claim is the outcome of a muddle created by the interference of defendants.
24.It is not till 1998 the revelation comes to the defendants that there were extent in occupation of the plaintiffs above the land that legitimately belonged to the plaintiffs people. Even in respect of this extent this court finds that in 1984 the extent, Ac.2.40 cents covered under S.No.88/9 A, B, and C have been in possession and enjoyment of the plaintiffs people, of course judged by Exhibits A. 1 to A.6 series show that
S.No. 88/9A Ac. 0-80cents stands in the name of plaintiff no.3, Exhibit A.3
S.No. 88/9B Ac 0-80 cents stands in the name of Chinnakka
S.No. 88/9C Ac 0-80cents stands in the name of plaintiff no.1, Exhibit A.2
25. The fact that D.W.1, N.A.Subbaiah admits that 2nd plaintiff is daughter of Chinnakka. The extents and survey numbers shown in
Exhibits B.6 (cist receipts 7 in nos) materially differ and they are
S.No. 175 – no extent is mentioned in Ex.B.6 S.No. 34 – no extent is mentioned in Ex.B.6 S.No. 410 – no extent is mentioned in Ex.B.6 S.No. 2A – no extent is mentioned in Ex.B.6
26.It is suspicious that even in spite of these alleged possession and enjoyment over the plaint schedule land in the unlawful occupation of plaintiffs, no steps have been taken by the defendants till about several years after the said revelations. I will show presently the theory that there were revelations of enjoyment of the plaintiffs only in 1998 when first suit, O.S.No. 654/98 was instituted by the plaintiffs people and that I will also show that the source of acquiring title by the 1an imaginary place of great wealth and opportunity 10 defendant no. 2 under the alleged execution of unregistered Will, dt.
09-08-1984, Exhibit B.5 must be knocked on the head as an artificial story.
27.When strenuous attempts are made by way of filing suit for injunction earlier by the plaintiffs, there is no explanation as to why no steps were taken against the presents plaintiffs inspite of the fact that the plaintiffs are alleged to have no right over the plaint schedule land.
28.The plaint schedule is brought under cultivation by the plaintiffs people long before 1984. By the time of 1996, Exhibit A.3 this land in dispute was brought under fertilization by the plaintiffs; and the learned Advocate commissioner was writing to this court that the land is being cultivated with variety of crops such as ground nut, red gram, green gram, Alasandulu, Amudalu etc., by , Exhibit C. 11. The learned advocate commissioner also takes credit for having compelled this land is being cultivated inspite of the fact defendants were contending they were owners.
29. That the land within limits covering the suit extents was in the enjoyment of the plaintiffs is made clear by a series of documents
Exhibits A. 1 to A.6 series. The earlier document is of the year 1989 executed in favour of plaintiffs by Akkamma. This document recites that the Akkamma executed a Registered Gift settlement, dt. 31-01- 1989 in favour of 1st , 3rd plaintiffs and Chinnakka in respect of the suit land and since execution of this document, those have been in possession and enjoyment of the same by raising crops thereon. The boundaries given the extent and survey are important. The plaint schedule property is bounded by land of Venkatappa in the east and in the north by Ramaiah, in the west by Krishnappa, (Exhibit A.1 ). In this document (A.1) reference is made as 11
Survey No. 88/9 A Ac. 0-80 cents Survey No. 88/9 B Ac. 0-80 cents Survey No. 88/9 C, Ac. 0-80 cents
Its boundaries are:- East; land of Venkatappa West: land of Krishnappa North: land of Ramaiah South: land of C.Subramanyam.
30.In the year 1989, this court finds, that Exhibit A.1 is executed in favour of plaintiffs by the Akkamma. This document (Ex.A.1) is unfeigned. The Advocate commissioner also refers to the plaint schedule land, Exhibit C.11. When the Advocate Commissioner was examined as D.W.5, nothing of irregularity or error in the report was made out. So that there is nothing for which this court could discount his report.
31.Judged from the documents, Exhibits A. 1 to 6 series, and documents marked under C series, this suit schedule mentioned property must be deemed to be in the possession and enjoyment of the plaintiffs people. At any rate at least from 1984, the plaint schedule mentioned land must be deemed to have been in open uninterrupted enjoyment of the plaintiffs. As this court observed there can be no surreptitious or furtive enjoyment of this land because the defendants’ people had not even question the right of enjoyment of plaintiffs’ people till 2004 except making interference with peaceful enjoyment of the plaintiffs.
32.There are other documents equally important showing that the enjoyment of the plaintiffs was continuous. Exhibit B.1 for fasli 1419 to 2010. Exhibit B.2 for the fasli 1419 to 2009. This court finds the names of plaintiffs in these documents. This is in respect of the plaint schedule property. There are old documents dated from 1989 and onwards to show that plaintiffs people among themselves had cultivated the land. So that it is meaningless for anybody to say that the plaint schedule property now defendants claiming exclusive right 12 over it was not under the possession of the plaintiffs people at least since 1984. Exhibt B.1 takes this court from falsi 1419 to 2010. and
Exhibit B.2 takes this court to from falsi 1419 to 2009 which the plaintiffs have been in possession of the suit land. These documents of defendants clearly show the enjoyment of the suit land by the plaintiffs.
33.The fact that numerous transactions and alienations have been effected between plaintiff people inter se others is a potent factor showing that the enjoyment was only by the plaintiffs.
34.To support further the exclusive enjoyment of the plaint schedule mentioned property by the plaintiffs, this court finds Exhibit A.1. That document recites as if plaintiffs had obtained right to cultivate the land. As already pointed out, the transaction under Ex.A.1 (Registered
Gift Settlement deed) is unfeigned and unaffected .
35.As against the uninterrupted enjoyment of the plaint schedule land by the plaintiffs any unilateral operations by way of Exhibits B series would not affect their inherent rights. Any cists receipts, settlement as seen under Exhibit B.4 and survey operations are only for purposes of assorting lands for the purpose of assessment and they do not affect rights of owners.
36.The un-registered Will, Exhibit B.5 was said to have been executed by Venkataswamy who is leprosy patient. He lost his fingers as admitted by D.W.1. D.W.2, R.Munaswamy also stated that the said
Venkataswamy lost his fingers due to leprosy. It is significant to see that in spite of the fact that the executant lost all his fingers due to leprosy, defendant no. 2 is now contending as if he put his thumb impression on said unregistered Will dt. 09-08-1984. D.W.4,S.Paradesi also admits that he was neither attestor not scribe of the said Will.
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D.W.3, T.Usman Saheb also admits that he was not present at the time execution of the said Will. These admissions of D.Ws.1 to 4 are sufficient to throw off their evidence as worthless. On the other hand they have made admissions which are corroborative of the plaintiffs.
37.If it is alleged, that the enjoyment of the plaint schedule land was by the plaintiffs exclusively as parts of land, and if there is nothing to show that these plaintiffs were enjoying the plaint schedule land surreptitiously, or covertly or furtively then of course, it is absurd for the defendants to contend that they were not aware of this enjoyment, if really the enjoyment of plaintiffs was unauthorized. When it is possible for these plaintiffs to have enjoyed this land, this is a case in which the presumption of law could be applied that possession goes with title.
38.From the documentary evidence discussed supra the theory is blatant falsehood, when it is stated that the Venkataswamy, who has no fingers, put his thumb impression on the unregistered will, dated 09- 08-1984. That document of this kind should have been relied upon as authentic eye-openers for the alleged enjoyment of the land by defendants is really astounding. Having known the attitude of D.W.1.
and his being always tethered by ties of obligation to the
Venkataswamy this court has before it could not have been relied upon with any grace, nor does it appear that this document, Exhibit B.5 has any sanction of any authenticity. The internal nature of the document (Exhibit B.5, unregistered will,dt.09-08-1984) is such that it is shern of any genuineness. Documents Exhibits B.2 and B.3 do not even contain survey number of the plaint schedule mentioned land. The survey numbers mentioned in those documents are materially differ to the survey number of the plaint schedule mentioned property.
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39.D.W.2,R.Munaswamy is the attestor of the un registered will. He poses to have been engaged as second attestor for the said will. He is a bare faced liar is clear from the fact that inspite of one Vasappa who is father of Jayaramaiah is not at all attestor in Exhibit B.5, he pretends as if the said Vasappa was first attestor of Ex.B.5. If so, he is most incompetent to know anything about alleged transaction of the said unregistered will. He pretends as if he was aware of the transaction of execution of the said unregistered will. That he is a bare faced liar is clear from that in spite of the executant lost his fingers due to leprosy, this witness pretends as if the executant had put his thumb impression.
40. The defendants relied upon the rulings, Corporation of the City of
Bangalore vs M.Papaiah and another, AIR 1989 S C1809; Yeluri
Vijayabharathi and ors Vs Yeluri Manikyamma and others, 1998 (2) ALT 623; Sait Tarajee Khimchand and others vs Yelamarti Satyam and others, AIR 1971 SC 1865; Sajana Granites, Madras and another vs
Manduva Srinivasa Rao and others, 2002(1) ALT 466 (DB); Redrouthu
Nammayyamma vs Kancherlapalli Musalayya and others, 1980 (2) ALT 270; State of Himachala Pradesh vs Keshava Ram and others, AIR 1997
SC 2181; Birad Mal Singhvi’s case, AIR 1988 SC 1796; Vidhyadhar vs
Mankirao and another, AIR 1965 SC 282. The dicta observed in these rulings are not applicable to the facts of this case. It is significant to see that section 68 of the Evidence Act,1872 provides for the mode and manner in which execution of Will is to be proved. Proof of attestation of the will is a mandatory requirement. By execution of will is meant the whole process prescribed under section 63 of the Indian
Succession Act. This process was not successfully proved by defendants.
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41.As already observed supra, when it is possible for these plaintiffs to have enjoyed this land , this is a case in which the presumption of law could be applied that possession goes with title. As was held in
Raja Shiva Prasad Singh vs Hira Singh And Ors, 62 Ind Cas 1, the raising of the presumption that possession goes with the title is a matter of discretion with the Court. The interference of defendants over peaceful possession and enjoyment is made out from above factual aspects of this case discussed supra. If no injunction is granted restraining defendants, it would cause irreparable loss to the plaintiffs.
Further, lawful possession must be protected is a well settled principle of law. Applying these principles of law, This court holds that the plaintiffs have established not only their title but also possession. On the other hand, the defendants have failed to prove not only their title but also possession.
42.I have till now relied on documentary evidence and the admissions on the part of defendants. A word on the oral evidence might not be out place.
43.P.Laxmi Devi,P.W.1 refers to their enjoyment of the suit land.
Admittedly, the present plaint schedule property and the property shown in O.S.No.654 of 1998 is one and same. No interference adverse could be drawn on this point. When she is put a question as to Ex.B.5, she only fence and would not say anything as she does not know about the alleged execution of the Will. She denies as if Exhibits A.4 and A.5 are created. The brothers of P.W.1 were admittedly not impleaded in this suit. When plaintiffs has succeeded in establishing their right, the suit cannot be dismissed on that ground of non joinder of brothers of
P.W.1. Similarly, nothing improbability whatsoever was elicited during 16 cross examination of P.Ws 1 to 3 by the learned counsel for the defendants to shatter their evidence.
44.That fact mere oral admissions of witness are irrelevant under section 22 of Indian evidence Act,1872 when documentary evidence is specific on that aspect.
45. N.A.Subbaiah, D.W.1 did not see actual execution of the alleged
Will, dt.09-08-1984. The theory of this witness that his father Ramaiah and he used to meet the needs of Venkataswamy is an artificial story is clear from the fact that admittedly he was a minor by the time of the alleged execution of the said Will. It is suspicious to see that the word ‘Minor’ is conspicuously absent in the said Will. That this witness has fore shaken his conscience would be clear from the fact the
Venkataswamy was allegedly referred as guardian inasmuch as he was said to be minor. If that is the recital on the unregistered will, there is nothing in Ex.B.5 to believe as if D.W.1 was recited as ‘minor’ in the said Will.
46.No doubt, a bequest in favour of any disqualified persons, such as minor, idiot, lunatic, etc., will be valid. Delivery of possession is not necessary to its validity. Generally, the legatee need not give his assent in order that it may take effect as is pointed out in Kooldeb Vs
Wooma, 2 hay 370. (Reference: The Law of Wills by Gopala Krishna
Page 225). Yet, in the present case, Defendants cannot take aid of this principle of law as the theory of them is totally suspicious.
47.R.Munaswamy,D.W.2 who is alleged to have singed the un- registered Will, dt. 09-08-1984. He poses to have then known about the transaction of this Will. He is made to say that he knows the said
Venkataswamy and suit land and so on and so forth. He could not give the correct boundaries of suit land. When he is put the question 17 whether there are electric poles and cart track at the plaint schedule mentioned property, he says no such things are existed there. It is thus clear from the fact that he knows not what the plaint schedule mentioned property is.
48.T.Usman Saheb, D.W.3 also poses to have then known the transaction Ex.B.5. What he knows and what he had seen at the time of execution of the said Will,dt.09-08-1984 has faded from his memory.
He also knows not what Ex.B.5 is, nor could he remember the boundaries of the suit land. He only parrotlike repeats what his examination-in-chief affidavit contains. Ultimately, he admits that he was not present and does not know the contents of the alleged Will.
49.S.Paradesi, D.W.4 is again unreliable for the reason that he knows not what the case of defendants. He knows not whether the said
Venkataswamy ever suffered from leprosy or not. Owing to his being interested wanted to say as if he was present at the time of the execution of the said Will. In a spur of moment, he changed his version stating that he was not present at the time of execution of the alleged
Will, Exhibit B.5. As a matter of fact, this witness has no definite knowledge about the facts of the case. When he is put a question by the Court as to why Ex.B.5 was not registered, he only fences and would not answer. That he is talking rattling meaningless is clear from the fact that he knows not what he has to depose.
50.As was pointed in Jaswant Kaur Vs Amrit Kaur and others, 1977 (1) Supreme Court Cases 369, A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propunder himself taking a leading part in the making of the will under which he receives a substantial benefit and other such circumstances raise suspicion about 18 the execution of the Will. Applying this principle of law, this court disbelieves Exhibit.B.5.
51.The oral evidence is also corroborative of the exclusive enjoyment by the plaintiffs. As a result of the evidence discussed above, This court finds the issue 1 and additional issues 2 and 3 are in the positive.
52.Issue 2 :-
It follows that plaintiffs are entitled for declaration and permanent injunction.
53.In the result, the suit is decreed with costs, declaring that the plaintiffs have right and title over the plaint schedule mentioned property; and permanent injunction is granted restraining the defendants, their men, agents, servants and other followers in any manner interfering with the plaintiffs’ peaceful possession and enjoyment of the plaint schedule mentioned property.
Typed to my dictation, corrected and pronounced in open court by me of this the 31st day of December,2013
Sd/- Y.Srinivasa Rao.
III Additional Junior Civil Judge, FAC II Additional Junior Civil Judge, Chittoor.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For plaintiffs :- P.W.1: Smt. P.Laxmi Devi P.W.2: Shri M.Munaswamy P.W.3: Shri D.Rama Krishnaiah
For defendants :- D.W.1: Shri N.A.Subbaiah D.W.2: Shri R.Munaswamy D.W.3: Shri T.Usman Saheb D.W.4: Shri S.Paradesi 19
D.W.5: Shri L.R.Jaya Prakash (Advocate Commissioner)
DOCUMENTS MARKED
For plaintiffs: Ex.A.1: Gift settlement deed, dt. 31-01-1989. Ex.A.2: Title deed stands in the name of 1st plaintiff. Ex.A.3: Title deed stands in the name of 3rd plaintiff. Ex.A.4: Original 10 (1) Account stands in the name of 1st plaintiff. Ex.A.5: Original 10 (1) Account stands in the name of 3rd plaintiff. Ex.A.6: Original copy of order passed by R.D.O under proceedings
No.G.1653/03,DT.13-07-2005. Ex.A.7: Certificate cum Birth and Study certificate.
For defendants: Ex.B.1: Nos.2 and 3 Adangal stands in the name of 2nd defendant. Ex.B.2: Nos.2 and 3 Adangal. Ex.B.3: 10 (2) Fair adangal for the fasli 1398. Ex.B.4: Rough patta stands in the name of Venkata swamy issued by Assistant Settlement Officer. Ex.B.5: Original un-registered Will, dt. 09-08-1984. Ex.B.6: Cist receipt (seven (7) in nos.) Ex.B.7: Certified copy of plaint in O.S.No.654 of 1998. Ex.B.8: Certified copy of Judgment in O.S.No. 654 of 1998. Ex.B.9: Death certificate of N.A.Venkataswamy. Documents marked under ‘C’ series: Ex.C.1: Attested copy of Adangal/pahani (fasli 1410, 1411, 1412) in respect of 166 Tekumanda village. Ex.C.2: Attested copy of Adangal/pahani (fasli 1415) in respect of 166 Tekumanda village. Ex.C.3: Attested copy of Bhumi hakkula record- Namuna-1 in respect of 166 Tekumanda Village, Bangarupalem Mandal. Ex.C.4: Attested copy of Adangal/pahani (fasli 1416, 1417) in respect of 166 Tekumanda village. Ex.C.5: Attested copy of B Namuna. Ex.C.6: Attested copy of Adangal/pahani (fasli 1418, 1419) in respect of 166 Tekumanda village Ex.C.7: -do- Ex.C.8: Advocate Commissioner Warrant Ex.C.9: Noticed issued by the Advocate Commissioner Ex.C.10: Noticed issued by the Advocate Commissioner Ex.C.11: Report of the Advocate Commissioner 20
Ex.C.12: Rough sketch prepared by the Advocate Commissioner Ex.C.13: Rough sketch prepared by the Advocate Commissioner
Sd/- Y.Srinivasa Rao.
III Additional Junior Civil Judge, FAC II Additional Junior Civil Judge, Chittoor. //true copy//
Fair Judgment in
O.S.No.866 of 2004,
Dt.31.12.2014.