D.Seshayya

1 O.S.26 of 2015

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Friday, this the 21st day of April, 2023.

O.S.No.26 of 2015

Between:-

1. Nanduri Nagendram, w/o. Vinsent, Hindu, 55 years, Housewife, r/o. Vykuntapuram village, Amaravathi Mandal, Sattenapalli JCJC.

2. Yedluri Akkamma, w/o. China Veeraiah, Hindu, 47 years, Housewife, r/o. Inavolu village,

Thulluru Mandal, Mangalairi JCJC. ... Plaintiffs.

And

1.Mattukoyya Nageswara Rao (Died) 2.Mattukoyya Chaitanya Dinesh @ Sunny, s/o. Nageswara Rao, Hindu, 23 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *3.Mattukoyya Vijaya Kumari, w/o. Late Mattukoyya Nageswara Rao, Hindu, 61 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *4.Mattukoyya Divya, w/o. Tella Raja Sundar, Hindu, 35 years, Employee, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *5.Mattukoyya Deepthi, D/o. Late Mattukoyya Nageswara Rao, Hindu, 33 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC.

(*Amended as per orders in I.A.259/2021, dt.23.2.2021) ... Defendants.

This suit came before me on 10.04.2023 for final hearing in the presence of Sri P.S.C. Prasad, Sri T. Madhusudana Rao, Sri K. Koteswara Rao, Advocates for the plaintiffs and of Sri G. Ankamma Rao, Sri N. Madhusudana, Advocates for defendants 2 to 4, the 1st defendant died during pendente lite and upon hearing both sides, perusing the material on record and having stood over for consideration till this day, this Court delivered the following:- 2 O.S.26 of 2015

:: J U D G M E N T ::

Originally, the plaintiffs 1 and 2 filed the suit against the defendants 1 and 2 for partition of the plaint schedule property into three equal shares by metes and bounds and to allot one such share each to the plaintiffs by separate possession thereof and for costs of the suit.

2. Subsequently, during the pendency of the suit, the 1st defendant died.

As such, the defendants 3 to 5 being legal heirs of the deceased 1st defendant are added as per orders in I.A.259/2021, dt.23.2.2022.

3. The brief averments of the plaint are as follows :

a) The Plaintiffs 1 and 2 are sisters and the 1st Defendant is their brother. The 2nd Defendant is the son of the 1st Defendant. One Mattukoyya

Venkateswarlu is the father of Plaintiffs and 1st Defendant. The said Mattukoyya

Venkateswarlu during his life time purchased the Plaint Schedule property from one Maruboina Gopala Rao through a Registered Sale deed dt.12.04.1982 bearing document No.775/1982 of S.R.O., Amaravathi. Since the date of purchase, the said Mattukoyya Venkateswarlu was in possession and enjoyment of the Plaint schedule property till his death as intestate which happened on 12.08.2005. Soon after the death of Mattukoyya Venkateswarlu and his wife Venkayamma as intestate, the Plaintiffs and 1st Defendant being their legal representatives i.e., daughters and son respectively are in joint possession and enjoyment of the Plaint schedule property upon whom it devolved.

b) The 1st Defendant being elder and male member has been managing the Plaint schedule property on behalf of Plaintiffs also and has been distributing the usufructs there from to the Plaintiffs. As matters stood thus, the Plaintiffs being noticed that the 1st Defendant is trying to commit acts of alienate along with 2nd Defendant regarding Plaint schedule property, since long 3 O.S.26 of 2015 back the Plaintiffs orally demanding the 1st Defendant for partition of the same.

But the 1st Defendant is postponing the same on one pretext or the other.

c) While things were thus, recently, the Plaintiffs reliably came to know that in as much as they are demanding for partition, the 1st Defendant with evil intention of denying and avoiding the shares of Plaintiffs in the Plaint schedule property proclaiming falsely in Vaddamanu Village as he is the only legal heir and no one born to his parents and requested the several persons to obtain their signatures to gain the Pattadar Pass Book and Title Deeds from the

Revenue authority wrongfully in his favour only. While so, recently the A.P state Government announced to establish the state capital in the surroundings of Thulluru Mandal which is near by the schedule property, the rates of the lands increased abnormally. As such, the Defendants hatched a plan to alienate the Plaint schedule property as they like without giving shares to the

Plaintiffs. At this juncture, the Plaintiffs feel that it is no longer safe to continue the joint possession of the Plaint schedule property.

d) In these circumstances, the Plaintiffs got issued a legal notice dt.12.12.2014 to the Defendants demanding them to co-operate for partition of the Plaint schedule property into 3 equal shares and for allotment of 2 such shares and put them in separate possession thereof by metes and bounds. The

Defendants having received the said notice got issued a reply notice dt.

23.12.2014 with false averments and claims by stating that the 1st Defendant acquired the Plaint schedule property from his father namely Mattukoyya

Venkateswarlu through a Regd. Will dt.10.01.2005 and since then, he is in possession and enjoyment of the same. After receiving the said reply notice dt.23.12.2014, the Plaintiffs got issued a Rejoinder notice dt.03.01.2015 stating that the 1st Defendant never looked after the welfare of his father (Venkateswarlu) and the said Venkateswarlu never stayed along with 1st

Defendant and further stated that they looked the welfare of their father 4 O.S.26 of 2015

Venkateswarlu in his last days and their father Venkateswarlu died as intestate leaving behind him. the Plaintiffs and the 1st Defendant as his legal representatives upon whom his entire estate devolved i.e., schedule property and that the said Venkateswarlu never executed any Will much less the alleged

Will dt.10.01.2005 as mentioned in reply notice and further stated that without verifying the alleged Will dt.10.01.2005 as mentioned in reply notice, the

Plaintiffs are not in a position to give any suitable rejoinder and further requested to send attested copy of the alleged Will dt.10.01.-2005 said to have been executed by Venkateswarlu in favour of the 1st Defendant in respect of the schedule property and on receipt of which they will be in a position to give suitable additional rejoinder or else it can be presumed that there is no such

Will dt.10.01.2005. But, the said Rejoinder notice dt.03.01.2015 send to the

Defendants counsel was returned with an endorsement as "un-claimed". As such, the Plaintiffs came to a conclusion that the alleged Will dt.10.01.2005 might be a forged one and is not a genuine one.

e) The Plaintiffs recently came to know that in order to defeat the rights and share of the Plaintiffs over the Schedule Property, the Defendants 1 and 2 colluded together and brought into existence of sham, nominal, collusive, fictitious, speculative, null and void document in favour the 2nd Defendant by way of Gift Deed dt.03.06.2011 by the 1st Defendant in respect of the Plaint schedule property. Any kind of documents that were entered in between the

Defendants in respect of the schedule property by ignoring share of Plaintiffs will not bind over them in any way and the alleged Gift deed dt.03.06.2011 is a void document under law. The better mediations and counsels made on behalf of the Plaintiffs proved futile due to the adamant and negligent manner of the

Defendants. Hence the Plaintiffs constrained to file the present suit for partition.

*g) During pendency of suit, the 1st Defendant died on 14.05.2021 leaving 5 O.S.26 of 2015 behind him the Defendants 2 to 5 who are no other than his son, wife and daughters respectively as his legal representatives upon whom the entire estate of deceased 1st Defendant devolved. The 2nd Defendant is already on record. As such Defendants 3 to 5 are proper and necessary parties. (*Amended as per orders in I.A.259/2021, dt.23.2.2021)

4. The Defendant Nos.1 and 2 and the defendant No.3 filed separate

Written Statements with the same contentions denying the averments made in the plaint. The defendants 4 and 5 adopted the Written Statement of the 3rd defendant by filing memo. The defendants 1, 2 and 3 contended in their

Written Statement that the suit is not maintainable according to law. The defendants counsel never received any re-joinder from postal authority and they managed the postal authority that it is unclaimed by the plaintiffs. The

Will is in force and tenable according to law. The plaintiffs got issued notice with false averments after registration of Will dt.10.01.2005, and also gift deed registered on 03.06.2011, and further they kept quite for more than 15 years and issued with false averments notice. Neither they are in possession and enjoyment of the same nor they are having valid documents with regard to

Property. But the notice issued on 12.12.2014. The Will and Gift Deed are valid documents according to law. Since 2005, they never interfered with the possession and enjoyment of the same by the defendants and they never obstructed and they never issued any notice after the registration of documents. Only for wreck vengeance, they created false and frivolous, concocted stories against the defendants. The defendants registered documents are valid and binding on the defendants.

b) The plaintiffs 1 and 2 are the sisters and the 1st defendant is the brother. The 2nd defendant is the son of 1st defendant. And Mattukoyya

Venkateswarlu is the father of plaintiffs and 1stdefendant. Said

M.Venkateswarlu purchased the Property under self acquired from Maruboina 6 O.S.26 of 2015

Gopala Rao under Registered Sale deed dt.12.04.1982 which is an extent of

Ac.2.05 cents in D.No: 238/A,in Doc. No:775/1982 of SRO, Amaravathi which is situated at Anathavaram village, Thullur Mandal, Guntur District. Since then, he was in possession and enjoyment of the same. The said Mattukoyya

Venkateswarlu while he was alive he gave Dowry to Nanduri Nagendram for her marriage purpose which is an extent of Ac.0.50 cents of cultivated land and gave cash of Rs.5,000/- and also gave Gold and silver articles to her worth about Rs.50,000/- and also gave for Rs.10,000/- for Daughter-n-law education purpose. Hence, she is not entitled any amount from M.Venkateswarlu. And further the said Y.Akkamma i.e. 2nd plaintiff got marriage in the year 1981 and at the time of her marriage, the said M.Venkateswarlu gave under dowry which is an extent of Ac.0.50 cents and also gave cash of Rs.5,000/-and also gave

Gold and Silver articles worth about for Rs.50,000/- to herself. Thereafter, the the said M.Venkateswarlu wife died on 30.10.1996. Immediately thereafter, he had no protection at Vaddamanu village, and also having ill-health and also old age problem at that time, due to the above said reasons, he came to Guntur and resided at his son’s residence i.e. 1st defendant .Except the 1st defendant the plaintiff or anybody never saw him for his welfare. And further due to ill- health and over-affection and also seeking his welfare by his son and also old age problem, he executed an Notarized Will dt.10.01.2005, the above said property which is an extent of Ac. 2.05 cents in favour of Mattukoyya

Nageswara Rao i.e. 1st defendant and also seeking his welfare and provided all the medicines to him. Now and then, the 1st defendant is in peaceful possession and enjoyment of the said property. Due to old age problem, the said

M.Venkateswarlu died on 12.08.2005. The 1st defendant gifted the said property to his son i.e. 2nd defendant under Registered Gift Deed dt.03.06.2011 vide Doc No:1280/2011 of SRO, Amaravathi. Since then, the 2nd defendant is in peaceful possession and the 2nd defendant gave the said land to one 7 O.S.26 of 2015

M.Malleswara Rao towards Kowl/Tenancy and also the said tenant is paying kowl/Maktha amount to the 2nd defendant regularly without any default. The plaintiffs bore grudge against the defendants 1 and 2, they issued false notice with false allegations against them. And there is no iota of truth in it. For all these years, the plaintiffs kept quite for it and recently filed a false and frivolous partition suit against the defendants. Neither the plaintiffs had any right nor they are in possession and enjoyment of the said property at any point of time. Without having any right over the said property, they are black- mailing the defendants 1 and 2 with a malafide intention to grab the said property. They have shown the market valuation as meagre amount in the valuation certificate, actually the court jurisdiction is District Court, Guntur and the Stamp duty is also paid insufficient. Without possession as per market valuation the plaintiff had to pay excess court fees into court properly. The 2nd defendant is the bonafide owner and having title and valid documents according to law. The same was recognized by the CRDA as per Revenue

Records. The same property was acquired by the Revenue authority under

Form No:7 by the Deputy Collector. And the same was recognized by the

Revenue authority as the 2nd defendant is the absolute owner according to law under Form no. 9.6 and Form No: 9.14 and the revenue authority recognized the same. Then, the revenue authority issued under kowl amount in favour of 2nd defendant. The plaintiffs without possession and without valid documents they are not entitled any relief against the defendants. They were separated long back and they are residing in different places. Only to get wrongful gain to them and to get wrongful loss the defendants, the plaintiffs filed a false, and frivolous suit against the defendants. And further the plaintiffs shown in the schedule boundaries are also different according to the 2nd defendant document. The plaintiffs had no avocation except and trying to grab the other lands in an illegal manner and without any manner of right over the schedule 8 O.S.26 of 2015 mentioned property. The defendants got issued proper reply notice with regard to property to the plaintiffs dt.23.12.2014. With malafide intention, they are trying to convince the court without any iota of truth in it. According to the

Adangal, the defendants are the absolute owners of the same. Hence, the plaintiffs are not entitled any partition against the defendants. Hence, it is liable to be dismissed in limine. The defendants 1 and 2 finally prayed to dismiss the suit with exemplary costs.

5. Basing on the above pleadings, the following issues are settled for trial:-

1. Whether the suit schedule property is liable for partition into three equal shares?

2. Whether the plaintiffs are entitled for one such share each as sought for?

3. Whether the father of the 1 st defendant executed a Will dt.10.01.2005 in favour of the 1 st defendant which is the property or not?

4. To what relief?

6. During the course of trial, on behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A1 to A7. On behalf of the defendants, D.Ws.1 and 2 were examined and marked Exs.B1 to B7.

7. Heard both the sides. Written arguments filed by the counsel for defendants and perused the same.

8.Issue Nos. 1 to 3:-

a) As per contention of the plaintiffs, they filed the present suit against the defendants for partition of the plaint schedule property into three equal shares. The origin of the case of the plaintiffs are that the plaintiffs 1 and 2 and the 1st defendant are none other than the children of Mattukoyya

Venkateswarlu who is their father. The said Mattukoyya Venkateswarlu purchased the plaint schedule property under a registered sale deed dated 12.4.1982 vide document No.775/1982 of SRO, Amaravathi from one 9 O.S.26 of 2015

Muraboina Gopalarao for an extent of Ac.2.05 cents. Since then, their father was possession and enjoyment of the same. The father of the plaintiffs and the 1st defendant died on 12.8.2005. The mother of the plaintiffs died at long back and thereafter, the 1st defendant being a male member maintained the same and used to hand over usefructs to both the plaintiffs from time to time and subsequently, they came to know that the 1st defendant with a malafide intention created sham and nominal document as if his father executed a document in his favour bequeathing the plaint schedule property to him. On that, they got issued legal notice under Ex.A1 on 12.12.2014 to call upon him for partition of the plaint schedule property into three equal shares and out of them, two shares to the plaintiffs 1 and 2 and the remaining share to the 1st defendant. Thereafter, the 1st defendant got issued a reply notice alleging that

Mattuoyya Venkateswarlu executed a registered Will dated 10.01.2005 and thereafter, he is in possession and enjoyment of the same. Later, they also issued rejoinder on 3.1.2015 stating that the 1st defendant never looked after the welfare of their father and their father died intestate without executing any document. Therefore, the document alleged to be executed by their father in favour of the 1st defendant by virtue of Will dated 10.01.2005 is a sham and nominal one and they also requested the 1st defendant to furnish photo copies of the same. Despite of that, he did not receive the notice and it was endorsed as ‘unclaimed’. Finally, as there is no other go, they constrained to file the present suit against the defendants 1 and 2 because the 1st defendant executed a gift deed in favour of the 2nd defendant by bequeathing the plaint schedule property, in turn, the 2nd defendant also surrendered the property to the CRDA authority. Therefore, the document covered under Ex.B1 Notarized Will dated 10.1.2005 and also the extract of gift deed covered under Ex.B3 dated 3.6.2011 are not binding upon the plaintiffs because Ex.B1 is a forged document pressed into service and under guise of Ex.B1, no property devolved to the 1st defendant 10 O.S.26 of 2015 and in turn, the 1st defendant has no right to execute any document in favour of the 2nd defendant by bequeathing the plaint schedule property with absolute rights and in turn, he surrendered the property to the CRDA Authority.

Therefore, the documents covered under Exs.B1 and B3 not at all taken into as a valid piece of evidence and it is presumed that the joint family property of the plaintiffs and the 1st defendant after death of Mattukoyya Venkateswarlu. It seems that both parties are entitled equal right at the rate of 1/3 each, total extent of 2/3rd share to both the plaintiffs and 1/3rd share to the 1st defendant. Therefore, the claim of the plaintiffs shall be taken into consideration.

b) In order to support the contention of the plaintiffs, they also placed relevant documents to show that Exs.A1 to A7 are relevant documents. Ex.A1 is the registration extract of sale deed vide document No.775/1982 of SRO,

Amaravathi stands in the name of their father dated 12.4.1982. Ex.A2 is

Adangal copy dated 9.12.2014, office copy of legal notice and reply notice and rejoinder covered under Exs.A3 to A5 are clearly indicated that Ex.B1 is pressed into service, though a legal notice was issued by both the plaintiffs calling the 1st defendant for partition of the plaint schedule property. Despite of that, they are taking two pleas, one is, it is a registered document as per reply notice under Ex.A4 and subsequently, they also issued rejoinder under Ex.A5

dated 3.1.2015. But, subsequently also, did not send the same to peruse both

the plaintiffs about execution of document i.e., Will alleged to be executed by their father in favour of the 1st defendant.

c) The learned counsel for the plaintiffs further argued that in this case, the claim of the defendants is very doubtful because according to the contention of the 1st defendant, initially, the father of the 1st defendant and the plaintiffs executed a registered Will dated 10.1.2005. But, subsequently, they also took another plea that it is a notarized Will. There are three claims 11 O.S.26 of 2015 pleaded by the 1st defendant with regard to execution of the Will, one is registered Will as per legal notice, second one is a notarized Will and the 3rd one is an unregistered Will. Whether the Will is properly executed by the father of the plaintiffs and the 1st defendant in favour of the 1st defendant shall be established by the 1st defendant because if any suspicious circumstances around the Will, such claim shall not be taken into consideration. If at all the contention of the 1st defendant is true, he straight away mentioned the clear fact whether it is registered one, unregistered one or notarized one. But, the

Will is the same. But, there are severe contradictions about the claim of the 1st defendant with regard to alleged to be executed a document i.e., Will in favour of the 1st defendant. Under guise of Ex.B1, no property devolved to him. In such circumstances, the 1st defendant has no manner of right to execute gift deed in favour of the 2nd defendant under Ex.B3 bequeathing the plaint schedule property in his favour and in turn, the 2nd defendant has no right to execute any agreement with the CRDA about surrender of the property. In the absence of any flow of title from 1st defendant to the 2nd defendant, such claim shall not be taken into consideration.

d) The learned counsel for the plaintiffs further argued that when the property of the plaintiffs and defendants is clearly established that it is the joint family property is originally origin of the property is that their father who purchased the plaint schedule property under Ex.A1 and subsequently, died intestate leaving behind the plaintiffs as well as the 1st defendant as children of

Mattukoyya Venkateswarlu. In such circumstances, in the absence of proof and relevancy about execution of Ex.B1 by the deceased Mattukoyya

Venkateswarlu in favour of the 1st defendant dated 10.1.2005, such property treated as a joint family property and joint and constructive possession of the plaintiffs established against the 1st defendant. In such circumstances, the plaint schedule property is fit for partition of the joint family property as 12 O.S.26 of 2015 prayed for. Therefore, the claim of the plaintiffs is clearly established by producing Exs.A1 to A7 coupled with supporting evidence who is P.W.2 who categorically supported the contention of the plaintiffs. Besides that, the 2nd plaintiff also examined as P.W.3. She also supported the contention of the plaintiffs. In such circumstances, the oral and documentary evidence are clearly and clinchingly establish the contention of the plaintiffs that the plaint schedule property in an extent of Ac.2.05 cents situated at D.No.238/A of

Ananthavaram village, Thulluru Mandal. Therefore, the plaintiffs are entitled the relief against the defendants 1 and 2 as prayed for because during the pendency of the suit, the 1st defendant died, the defendants 3 to 5 who are wife and daughters of the 1st defendant were added as necessary parties to the proceedings. Therefore, the claim of the plaintiffs has successfully proved for put the partition of the plaint schedule property into three equal shares and entitled one such each to the plaintiffs 1 and 2 and one such share to the legal heirs of the 1st defendant.

e) According to the contention of the defendants, what are the contentions raised by the plaintiffs are not true and correct. There is no cause of action for filing the present suit because in earlier occasion, the father of the plaintiffs already settled the property in their favour and also dowry and other lanchanams were given at the time of their marriages. According to their contention, the plaint schedule property is self acquired property of

Mattukoyya Venkateswarlu who is none other than the grand father of the 2nd defendant. The marriage of the 1st plaintiff was solemnized in the year 1975.

In the same manner, the marriage of P.W.3 who is the 2nd plaintiff was also performed in the year 1981. At the time of marriage, the father of the plaintiffs gave half acre each the property situated at Chavapadu village. Besides that, their father also gave Rs.5,000/- towards dowry and Rs.50,000/- of gold and silver ornaments to the 1st plaintiff. In the same manner, Rs.5,000/- to the 2nd 13 O.S.26 of 2015 plaintiff and Rs.50,000/- worth of gold and silver ornaments. Besides that, the father of the plaintiffs also gave an amount of Rs.10,000/- towards education expenses to the elder daughter of the 1st plaintiff. In the same manner, he also gave Rs.15,000/- to the 2nd plaintiff. After settling the property, the father of the plaintiffs is living along with the 1st defendant. The 1st defendant being a male member and son of Mattukoyya Venkaetswarlu looked after the welfare of the deceased Venkateswarlu. Out of love and affection, the said Venkateswarlu executed a document i.e., Will covered under Ex.B1 Notarized Will dated 10.01.2005 by bequeathing the plaint schedule property. After demise of

Mattukoyya Venkateswarlu, who died on 12.08.2005, the Will acted upon and came into force and the property devolved to the 1st defendant. Later, he is in possession and enjoyment of the same and thereafter, out of love and affection, the 1st defendant executed a Gift Deed in favour of the 2nd defendant under

Ex.B3 dated 3.6.2011 by bequeathing the plaint schedule property. Thereafter, he has been in possession and enjoyment of the same. By formation of capital, he surrendered the same to the CRDA authority and the CRDA authority also recognized his right by virtue of agreement between the 2nd defendant and the

CRDA under Ex.B6 is clearly shows that there is an agreement between the 2nd defendant and the CRDA about surrender of the property for an extent of

Ac.2.05 cents. Therefore, the CRDA also recognized the right of the 2nd defendant as a owner of the plaint schedule property and they disbursed the annuities from time to time to the account of the 2nd defendant. The said fact is also clearly established by the 2nd defendant by producing Ex.B7 Bank

Statement from 1.7.2021 to 31.7.2021 to show that the annuities were disbursed by the CRDA by time to time. Before that, the court also to be considered whether the plaint schedule property is devolved to the father at first instance by virtue of Ex.B1 and subsequently, to the 2nd defendant by virtue of Ex.B3 because Ex.B1 is executed by the grand father of the 2nd 14 O.S.26 of 2015 defendant by bequeathing the plaint schedule property and thereafter, he died under Ex.B2 death certificate to show that the said Mattukoyya Venkateswarlu died on 12.8.2005. Thereafter, Ex.B3 Gift Deed executed by the 1st defendant in favour of the 2nd defendant by bequeathing the plaint schedule property and later, the revenue record was also mutated in the name of the 2nd defendant pertaining to the plaint schedule property under Ex.B3 and B4 are 1-B

Namuna and Adangal are clearly indicated that the plaint schedule property being in possession and enjoyment of the 2nd defendant since long time.

Therefore, the claim of the defendants shall be taken into consideration. The plaintiff has no manner of right for seeking partition against the defendants because there is no jointness of plaintiffs and the 1st defendant at any point of time over the plaint schedule property. What are the properties given to both the plaintiffs were already settled by the grand father during his life time. In such circumstances, the claim of the plaintiffs shall be dismissed

f) The learned counsel for the defendants further argued that in this case, there is crucial aspects with regard to claim of the defendants because the defendants very much relied upon Ex.B1 is a notarized Will being executed by the deceased Mattukoyya Venkateswarlu in favour of the 1st defendant. To substantiate the contention of the defendants, one of the attestors of Ex.B1 was examined by the defendants who categorically supported the contention of the defendants to show that Ex.B1 was executed by Mattukoyya Venkateswarlu at

Guntur and the same was attested by him on 10.1.2005. Therefore, as per

Section 63 of the Indian Succession Act coupled with Section 68 of the Indian

Evidence Act clearly established the contention of the defendants to show that the proof of Will is clearly established by the defendants. When the proof of

Will is established by the defendants, the claim of the defendants shall be taken into consideration and the claim of the plaintiffs shall be dismissed. On the contra, according to the contention of the plaintiffs, when the Will is produced 15 O.S.26 of 2015

before this court, it must be proved by the defendants, otherwise, the same

shall be ignored and the plaintiffs are entitled for the suit claim against the defendants. Why because, according to the contention of the defendants, there are three Will are set up by the defendants. One is registered one, another is unregistered one and another is notarized Will. In earlier occasion also, during the life of the 1st defendant, he filed petitions i.e., I.A.1550/2018 and

I.A.1551/2018 for amendment of Written Statement about the nature of the

Will being executed by Mattukoyya Venkateswarlu. Both the petitions were dismissed. Aggrieved by the orders of this court, the 1st defendant preferred revisions vide CRP No.775/2019 and CRP No.914/2019 before Hon’ble High

Court of Andhra Pradesh and both revisions are also dismissed. Therefore, the earlier admission by the 1st defendant in the reply notice is clearly indicated that Ex.B1 is pressed into service. On the other hand, even according to

Ex.B3, it is clearly shows that if at all the 1st defendant got the plaint schedule property by virtue of Will dated 10.01.2005, there must be a recital on that.

But according to the document executed by the 1st defendant in favour of the 3rd defendant, the plaint schedule property devolved to the 1st defendant by way of inheritance, but not Will. In such circumstances, the execution of Ex.B1 by

Masttukoyya Venkateswarlu in favour of the 1st defendant does not arise. When there are suspicious circumstances about execution of Will, it was not ruled out by the opposite party, such claim cannot be taken into consideration. On that, he relied on a decision reported between: Murthy and Others Vs. C.

Saradambal and Others. The same was by Hon’ble Supreme Court in Civil

Appeal No.4270/2010 dated on 10.12.2021. As per the ratio, the Hon’ble

Apex Court clearly discussed if any party to the proceedings produced any Will either registered or unregistered Will, it is obligatory on the part of the party who wishes to rely upon, the proof of Will must be proved. When the proof of

Will is not proved by the party who relied upon, there are suspicious 16 O.S.26 of 2015 circumstances, it was not ruled out by the party who relied upon, such Will shall be rejected and claim of the plaintiffs shall be taken into consideration.

In this case, though the D.W.2 was examined in support of the defendants, but in the cross examination, it is clearly elucidated about the suspicious circumstances. In such circumstances, the claim of the plaintiffs shall be taken into consideration about non proving of the Will by the defendant and the claim of the defendants shall be discarded and it is liable for partition of the plaint schedule property. But, the facts mentioned in the above decision are not applicable to the present facts of the case. Even according to the contention of the defendants, the document executed at Guntur and D.W.2 categorically supported the contention of the defendants about execution of the document, the same was DTP and the same was signed by the father of the 1st defendant. Prior to execution of the document, the father of the 1st defendant intimated to him and in turn, he went to Guntur, where the 1st defendant is residing and out of his conscious, Ex.B1 is executed. On the other hand, it is also elucidated in the cross examination of DW.1 that another unregistered Will

dated 10.01.2005 was also shown to the witness and D.W.1 categorically

denied about execution of said document in favour of his father. Therefore,

Ex.B1 is a document executed by Mattukoyya Venkateswarlu in favour of the 1st defendant on 10.01.2005 and was also notarized by Raghuram, Advocate-cum-

Notary Public on 10.01.2005. In such circumstances, when the suspicious circumstances were ruled out by the defendants, such document is acted upon.

On that, he relied on a decision reported in between: D. Padmanabha Reddy (Died) per L.Rs. Vs. Smt. G. Anasuya and Others [(2004) 2 ALT 418]. As per the ratio, the Hon’ble Apex Court clearly discussed that when the proof of Will is proved by the party to the proceedings, such claim shall be taken into consideration. In this case, the proof of Will already established by the defendants as contemplated under Section 63 of the Indian Succession Act 17 O.S.26 of 2015 coupled with Section 68 of the Indian Evidence Act by examining D.W.2 about proof of Will and cleared all the suspicious circumstances. On the other hand, it is also categorically admitted by P.W.3 who is the 2nd plaintiff about execution of Gift Deed in favour of the 2nd by the 1st defendant in the year 2011 itself.

Therefore, it is clearly shows that the plaintiffs already known that they have no share over the plaint schedule property. But, they filed the present suit against the defendants saying that the plaint schedule property is a joint family property. Therefore, the decision relied by the plaintiffs is not identical with the present facts of the case. On the other hand, the decision relied by the defendants is identical with the present facts of the case.

g) The learned counsel for the defendants further argued that the intention of the plaintiffs shall also be taken into consideration. Even according to the admission of both the plaintiffs, the deceased Mattukoyya

Venkateswarlu not only having plaint schedule property and also other property i.e., house property in an extent of 2 and half cents. Except the plaint schedule property, they not filed the suit against the house site. If at all they got any joint right over the both properties belonged to said Venkateswarlu, they ought to have filed a suit against both properties. Therefore, the intention of the plaintiffs also shall be taken into consideration about futile attempt was made by the plaintiffs against the defendants for chance litigation. Except that, there is no truth in the contention of the plaintiffs’ case to show that they are bonafides to seek for the relief of partition of the plaint schedule property.

When the party to the proceedings not shown the property as a necessary property for partition of the property, such claim cannot be taken into consideration. On that, he relied on a decision reported in Sureddy Dhana

Lakshmi Nasrasayamma Vs. Pantham Tulasiratnam [(2018)2 AndhLD 443.

As per the ratio, the Hon’ble Apex Court clearly discussed that if at all the plaintiffs failed to show all joint properties for partition, in such circumstances, 18 O.S.26 of 2015 it is bad for non joinder of all properties. Hence, suit is liable to be dismissed.

In this case also, even according to the contention of the defendants, not only the plaint schedule property and also another property an extent of two and half cents house site was not put for partition of the same. On the contra, it is also elucidated in the cross examination P.Ws.1 and 3, they categorically admitted that Ac.0.02 ½ cents also available to the father. When the other property is available to the plaintiffs which belong to their father, why they claimed alone against the plaint schedule property for an extent of Ac.2.05 cents which were already given by deceased Mattukoyya Venkateswarlu in favour of the 1st defendant and later, the property was already given to the 2nd defendant under Ex.B3 and in turn, he also surrendered the property to the

CRDA. The CRDA also recognized his right and mutated his name in revenue records and disbursing the annuities to the 2nd defendant by time time. It is clearly shows that the plaintiffs filed the suit against the defendants without any cause of action. On the other hand, even according to contention of the plaintiffs, there is a joint and constructive possession and the 1st defendant has to disburse the amount by time to time. Except oral testimony, there is no supporting document to that effect. On the contra, it is also established the contention of the defendants they are having possession and enjoyment over the plaint schedule property since long time time after demise of Mattukoyya

Venkateswarlu in the year 2005 and thereafter, the property devolved to the 2nd defendant by virtue of Ex.B3. When the father of the plaintiffs died in the year 2005, why they waited upto 2015 must be explained. But, there is no explanation offered by the plaintiffs why they waited about nine years after execution of Ex.B1 notarized Will in favour of the 1st defendant. Therefore, it is clearly shows that the plaintiffs filed the present suit against the defendants for chance litigation without any jointness over the plaint schedule property. On the contra, the defendants clearly established that the father of the 1st 19 O.S.26 of 2015 defendant executed a Will in a fit state of mind by bequeathing the plaint schedule property in the presence of D.W.2 under Ex.B1. When the proof of

Will is proved by the opposite party, the plaintiffs are not supposed to claim any share over the plaint schedule property. On the other hand, it is also clearly established the contention of the defendants that half acre each to both plaintiffs have given by their father. They also purchased the property situated at Chavapadu and sold out the same and thereafter, they purchased the property at Vaddamanu. In such circumstances, it is clearly shows that being a male member, the 1st defendant rendered services to his father by name

Mattukoyya Venkateswarlu and in turn, he executed a document in favour of the 1st defendant out of love and affection. Therefore, it is clearly shows that the plaintiffs did not add another property i.e., Ac.0.02 ½ cents of house site as a necessary property to the proceedings for partition of the property for whole.

In such circumstances, it is bad for non joinder of necessary property.

Therefore, the facts mentioned in the decision are squarely applicable to the present facts of the case.

h) In view of my elaborate discussion, the plaintiffs failed to establish their contention against the defendants for joint and constructive possession to seek for partition at the rate of 1/3rd to each plaintiffs 1 and 2 each. Therefore, the plaintiffs are not entitled any relief as prayed for. Accordingly, issue Nos.1 to 3 are answered against the plaintiffs.

ISSUE No.4:-

9. In the result, the suit is dismissed. In view of relationship between both parties, both parties do bear their own costs.

Dictated to the Stenographer, transcribed and typed by him, corrected

and pronounced by me in the open Court, on this the21st day of April, 2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

20 O.S.26 of 2015

Appendix of Evidence

Witnesses Examined

FOR PLAINTIFFS:

PW1 : N. Nagendramma PW2 : K. Ankamma Rao PW3 : Y. Ankamma

FOR DEFENDANTS:

DW1: M. Chaitanya Dinesh @ Sunny DW2: J. Mariadasu

EXHIBITS MARKED

FOR PLAINTIFF :

Ex.A1/12.4.1982 : Registration extract of sale deed doc.No.775/1982 of SRO, Amaravathi in the name of Mattukoyya Venkateswarlu relating to plaint schedule property. Ex.A2/9.12.2014 : Adangal Copy obtained from mee seva. Ex.A3/12.12.2014: Office copy of legal notice got issued by the plaintiffs to the defendants. Ex.A4/23.12.2014: Reply notice got issued by defendants to the plaintiffs. Ex.A5/3.1.2015: Office copy of rejoinder notice got issued by the plaintiffs. Ex.A6/–: Returned rejoinder notice send to counsel for defendants with an endorsement as ‘unclaimed’. Ex.A7/3.6.2011: Extract of Gift deed Doc.No.1280/2011 of SRO, Amaravathi executed by 1st defendant in favour of the 2nd defendant.

FOR DEFENDANTS:

Ex.B1/10.1.2005 : Notarized Will. Ex.B2/12.8.2005 : Death Certificate of M. Venkateswarlu obtained through online. Ex.B3/3.6.2011: Extract of Gift Deed. Ex.B4/31.10.2022: 1-B Namuna issued by the Tahsildar, Thulluru. Ex.B5/31.10.2022: Adangal issued by the Tahsildar, Thulluru. Ex.B6/–: Form No.9.14 issued by the Deputy Collector, CRDA, Unit No.26, Amaravathi in the name of the 2nd defendant. Ex.B7/31.7.2021 : Online copy of Bank Statement of CRDA belongs to the 2nd defendant from 1.7.2021 to 31.7.2021 to show that maktha was deposited in his account.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Friday, this the 21st day of April, 2023.

O.S.No.26 of 2015

Between:-

1. Nanduri Nagendram, w/o. Vinsent, Hindu, 55 years, Housewife, r/o. Vykuntapuram village, Amaravathi Mandal, Sattenapalli JCJC.

2. Yedluri Akkamma, w/o. China Veeraiah, Hindu, 47 years, Housewife, r/o. Inavolu village,

Thulluru Mandal, Mangalairi JCJC. ... Plaintiffs.

And

1.Mattukoyya Nageswara Rao (Died) 2.Mattukoyya Chaitanya Dinesh @ Sunny, s/o. Nageswara Rao, Hindu, 23 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *3.Mattukoyya Vijaya Kumari, w/o. Late Mattukoyya Nageswara Rao, Hindu, 61 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *4.Mattukoyya Divya, w/o. Tella Raja Sundar, Hindu, 35 years, Employee, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *5.Mattukoyya Deepthi, D/o. Late Mattukoyya Nageswara Rao, Hindu, 33 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC.

(*Amended as per orders in I.A.259/2021, dt.23.2.2021) ... Defendants.

Originally, the plaintiffs 1 and 2 filed the suit against the defendants 1 and 2 for partition of the plaint schedule property into three equal shares by metes and bounds and to allot one such share each to the plaintiffs by separate possession thereof and for costs of the suit. Subsequently, during the pendency of the suit, the 1st defendant died. As such, the defendants 3 to 5 being legal heirs of the deceased 1st defendant are added as per orders in I.A.259/2021, dt.23.2.2022.

Plaint presented on : 29.01.2015Plaint filed on : 29.01.2015

Cause of action for the suit arose on 12.4.1982, when Mattukoyya Venkateswarlu who is the father of the plaintiffs and the 1st defendant purchased the plaint schedule property from one Maruboina Gopala Rao through a registered sale deed Dt.12.4.1982 vide document No.775/1982 of SRO, Amaravathi, and was in possession and enjoyment of the plaint schedule property till his death as intestate which happened on 12.8.2015, soon after death of Mattukoyya Venkateswarlu and his wife Venkayamma as intestate, when the plaintiffs and the 1st defendant being their legal heirs i.e. daughters and son respectively are in joint possession and enjoyment of the plaint schedule property upon whom it devolved and when the 1st defendant being elder and male member managed the plaint schedule property on behalf of plaintiffs and also has been distributed the usefructs there from to the plaintiffs and as matter stood thus, when the plaintiffs being noticed that the 1st defendant is trying to alienate along with the 2nd defendant regarding the plaint schedule property, since long back, when the plaintiffs orally demanding the 1st defendant for partition of the plaint schedule property and when the 1st defendant is postponing the same on one pretext or other, recently, when the plaintiffs reliably came to know that inasmuch as they are demanding for partition, the 1st defendant with evil intention of denying and avoiding the shares of the plaintiffs in the plaint schedule property proclaiming falsely in Vaddamanu village as he is only legal heir and no one born to his parents and requested several persons to obtain their signatures to gain the pattadar pass book and title deeds from the Revenue Authority wrongfully in his favour only and while so, recently, when the A.P. State Government announced to establish state capital in and around Thulluru mandal which is nearby the schedule property, for which, the rates of the lands increased abnormally and as such, when the defendants hatched a plan to alienate the plaint schedule property as they like without giving shares to the plaintiffs, at this juncture, when the plaintiffs fell that it is no longer safe to continue the joint possession of the plaint schedule property and in those circumstances, when the plaintiffs got issued a legal notice dt.12.12.2014 to the defendants demanding them to cooperate for partition of the plaint schedule property into three equal shares and for allotment of 2 such shares to the plaintiffs, when the defendants having received the said notice got issued a reply notice dt.23.12.2014 with false averments and claims and after receiving the said reply notice, when the plaintiffs got issued a rejoinder notice dt.3.1.2015 and when the said rejoinder notice dt.3.1.2015 sent to the defendants counsel was returned with an endorsement as ‘unclaimed’, when better mediations and counsels made on behalf of the plaintiffs proved futile due to the adamant and negligent manner of the defendants and at Ananthavaram village, Thulluru mandal, where the plaint schedule property situated is within the jurisdiction of this court.

Particulars of valuation:-

This being a suit for partition of the plaint schedule property into three equal shares by metes and bounds and to allot one such share each to the plaintiffs 1 and 2 by separate possession, the value of the plaint schedule property is Rs.6,18,000/- 1st plaintiff’s share comes to Rs.6,18,000/- x 1/3Rs.2,06,000/- 2nd plaintiff’s share comes to Rs.6,18,000/- x 1/3Rs.2,06,000/-

Value of the suit for the purpose of jurisdiction is Rs.4,12,000/- on which a fixed court fee of Rs.400/- i.e., Rs.200/-+Rs.200/- is paid u/s.34(2) of APCF and SV Act, 1956.

This suit came before me on 10.04.2023 for final hearing in the presence of Sri P.S.C. Prasad, Sri T. Madhusudana Rao, Sri K. Koteswara Rao, Advocates for the plaintiffs and of Sri G. Ankamma Rao, Sri N. Madhusudana, Advocates for defendants 2 to 4, the 1st defendant died during pendente lite and upon hearing both sides, perusing the material on record and having stood over for consideration till this day, this Court doth order and decree as follows:-

i) that the suit be and the same is hereby dismissed;

v) that both parties do bear their own costs. (Plaintiff Costs Rs.29770/-, Defendants 2 to 4 costs Rs.33,335/-)

Plaint schedule is attached hereto. Given under my hand and the seal of the Court, this the 21st day of April, 2023. Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

TABLE OF COSTS

for Plaintiffs: For D2 toFor D1 : D4: Stamp on vakalat 2-00 2-00Died Stamp on plaint400-00 – – Stamp on process428-00– – Advocate fee (Sr.) 28840-0025000-00 – Advocate fee (Jr.) – 8333-00 – Writing charges50-00 – – Typing charges50-00 – –

Total 29770-00 33335-00 Nil

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

S C H E D U L E

Guntur District, Narasaraopet Registration District, Amaravathi Sub

Registration, Thulluru Mandal, Ananthavaram village, D.No.238/A, an extent of Ac.2.00 cents of land but as per Revenue Record, it is Ac.2.06 cents of land bounded by:

East : Land belongs to Gottam Rami Reddy South: Land belongs to Bandi Adam West : Land belongs to Dasari Gabriel North: Land belongs to Jesta Sai Babu. Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

1 O.S.26 of 2015

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Friday, this the 21st day of April, 2023.

O.S.No.26 of 2015

Between:-

1. Nanduri Nagendram, w/o. Vinsent, Hindu, 55 years, Housewife, r/o. Vykuntapuram village, Amaravathi Mandal, Sattenapalli JCJC.

2. Yedluri Akkamma, w/o. China Veeraiah, Hindu, 47 years, Housewife, r/o. Inavolu village,

Thulluru Mandal, Mangalairi JCJC. ... Plaintiffs.

And

1.Mattukoyya Nageswara Rao (Died) 2.Mattukoyya Chaitanya Dinesh @ Sunny, s/o. Nageswara Rao, Hindu, 23 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *3.Mattukoyya Vijaya Kumari, w/o. Late Mattukoyya Nageswara Rao, Hindu, 61 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *4.Mattukoyya Divya, w/o. Tella Raja Sundar, Hindu, 35 years, Employee, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *5.Mattukoyya Deepthi, D/o. Late Mattukoyya Nageswara Rao, Hindu, 33 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC.

(*Amended as per orders in I.A.259/2021, dt.23.2.2021) ... Defendants.

This suit came before me on 10.04.2023 for final hearing in the presence of Sri P.S.C. Prasad, Sri T. Madhusudana Rao, Sri K. Koteswara Rao, Advocates for the plaintiffs and of Sri G. Ankamma Rao, Sri N. Madhusudana, Advocates for defendants 2 to 4, the 1st defendant died during pendente lite and upon hearing both sides, perusing the material on record and having stood over for consideration till this day, this Court delivered the following:- 2 O.S.26 of 2015

:: J U D G M E N T ::

Originally, the plaintiffs 1 and 2 filed the suit against the defendants 1 and 2 for partition of the plaint schedule property into three equal shares by metes and bounds and to allot one such share each to the plaintiffs by separate possession thereof and for costs of the suit.

2. Subsequently, during the pendency of the suit, the 1st defendant died.

As such, the defendants 3 to 5 being legal heirs of the deceased 1st defendant are added as per orders in I.A.259/2021, dt.23.2.2022.

3. The brief averments of the plaint are as follows :

a) The Plaintiffs 1 and 2 are sisters and the 1st Defendant is their brother. The 2nd Defendant is the son of the 1st Defendant. One Mattukoyya

Venkateswarlu is the father of Plaintiffs and 1st Defendant. The said Mattukoyya

Venkateswarlu during his life time purchased the Plaint Schedule property from one Maruboina Gopala Rao through a Registered Sale deed dt.12.04.1982 bearing document No.775/1982 of S.R.O., Amaravathi. Since the date of purchase, the said Mattukoyya Venkateswarlu was in possession and enjoyment of the Plaint schedule property till his death as intestate which happened on 12.08.2005. Soon after the death of Mattukoyya Venkateswarlu and his wife Venkayamma as intestate, the Plaintiffs and 1st Defendant being their legal representatives i.e., daughters and son respectively are in joint possession and enjoyment of the Plaint schedule property upon whom it devolved.

b) The 1st Defendant being elder and male member has been managing the Plaint schedule property on behalf of Plaintiffs also and has been distributing the usufructs there from to the Plaintiffs. As matters stood thus, the Plaintiffs being noticed that the 1st Defendant is trying to commit acts of alienate along with 2nd Defendant regarding Plaint schedule property, since long 3 O.S.26 of 2015 back the Plaintiffs orally demanding the 1st Defendant for partition of the same.

But the 1st Defendant is postponing the same on one pretext or the other.

c) While things were thus, recently, the Plaintiffs reliably came to know that in as much as they are demanding for partition, the 1st Defendant with evil intention of denying and avoiding the shares of Plaintiffs in the Plaint schedule property proclaiming falsely in Vaddamanu Village as he is the only legal heir and no one born to his parents and requested the several persons to obtain their signatures to gain the Pattadar Pass Book and Title Deeds from the

Revenue authority wrongfully in his favour only. While so, recently the A.P state Government announced to establish the state capital in the surroundings of Thulluru Mandal which is near by the schedule property, the rates of the lands increased abnormally. As such, the Defendants hatched a plan to alienate the Plaint schedule property as they like without giving shares to the

Plaintiffs. At this juncture, the Plaintiffs feel that it is no longer safe to continue the joint possession of the Plaint schedule property.

d) In these circumstances, the Plaintiffs got issued a legal notice dt.12.12.2014 to the Defendants demanding them to co-operate for partition of the Plaint schedule property into 3 equal shares and for allotment of 2 such shares and put them in separate possession thereof by metes and bounds. The

Defendants having received the said notice got issued a reply notice dt.

23.12.2014 with false averments and claims by stating that the 1st Defendant acquired the Plaint schedule property from his father namely Mattukoyya

Venkateswarlu through a Regd. Will dt.10.01.2005 and since then, he is in possession and enjoyment of the same. After receiving the said reply notice dt.23.12.2014, the Plaintiffs got issued a Rejoinder notice dt.03.01.2015 stating that the 1st Defendant never looked after the welfare of his father (Venkateswarlu) and the said Venkateswarlu never stayed along with 1st

Defendant and further stated that they looked the welfare of their father 4 O.S.26 of 2015

Venkateswarlu in his last days and their father Venkateswarlu died as intestate leaving behind him. the Plaintiffs and the 1st Defendant as his legal representatives upon whom his entire estate devolved i.e., schedule property and that the said Venkateswarlu never executed any Will much less the alleged

Will dt.10.01.2005 as mentioned in reply notice and further stated that without verifying the alleged Will dt.10.01.2005 as mentioned in reply notice, the

Plaintiffs are not in a position to give any suitable rejoinder and further requested to send attested copy of the alleged Will dt.10.01.-2005 said to have been executed by Venkateswarlu in favour of the 1st Defendant in respect of the schedule property and on receipt of which they will be in a position to give suitable additional rejoinder or else it can be presumed that there is no such

Will dt.10.01.2005. But, the said Rejoinder notice dt.03.01.2015 send to the

Defendants counsel was returned with an endorsement as "un-claimed". As such, the Plaintiffs came to a conclusion that the alleged Will dt.10.01.2005 might be a forged one and is not a genuine one.

e) The Plaintiffs recently came to know that in order to defeat the rights and share of the Plaintiffs over the Schedule Property, the Defendants 1 and 2 colluded together and brought into existence of sham, nominal, collusive, fictitious, speculative, null and void document in favour the 2nd Defendant by way of Gift Deed dt.03.06.2011 by the 1st Defendant in respect of the Plaint schedule property. Any kind of documents that were entered in between the

Defendants in respect of the schedule property by ignoring share of Plaintiffs will not bind over them in any way and the alleged Gift deed dt.03.06.2011 is a void document under law. The better mediations and counsels made on behalf of the Plaintiffs proved futile due to the adamant and negligent manner of the

Defendants. Hence the Plaintiffs constrained to file the present suit for partition.

*g) During pendency of suit, the 1st Defendant died on 14.05.2021 leaving 5 O.S.26 of 2015 behind him the Defendants 2 to 5 who are no other than his son, wife and daughters respectively as his legal representatives upon whom the entire estate of deceased 1st Defendant devolved. The 2nd Defendant is already on record. As such Defendants 3 to 5 are proper and necessary parties. (*Amended as per orders in I.A.259/2021, dt.23.2.2021)

4. The Defendant Nos.1 and 2 and the defendant No.3 filed separate

Written Statements with the same contentions denying the averments made in the plaint. The defendants 4 and 5 adopted the Written Statement of the 3rd defendant by filing memo. The defendants 1, 2 and 3 contended in their

Written Statement that the suit is not maintainable according to law. The defendants counsel never received any re-joinder from postal authority and they managed the postal authority that it is unclaimed by the plaintiffs. The

Will is in force and tenable according to law. The plaintiffs got issued notice with false averments after registration of Will dt.10.01.2005, and also gift deed registered on 03.06.2011, and further they kept quite for more than 15 years and issued with false averments notice. Neither they are in possession and enjoyment of the same nor they are having valid documents with regard to

Property. But the notice issued on 12.12.2014. The Will and Gift Deed are valid documents according to law. Since 2005, they never interfered with the possession and enjoyment of the same by the defendants and they never obstructed and they never issued any notice after the registration of documents. Only for wreck vengeance, they created false and frivolous, concocted stories against the defendants. The defendants registered documents are valid and binding on the defendants.

b) The plaintiffs 1 and 2 are the sisters and the 1st defendant is the brother. The 2nd defendant is the son of 1st defendant. And Mattukoyya

Venkateswarlu is the father of plaintiffs and 1stdefendant. Said

M.Venkateswarlu purchased the Property under self acquired from Maruboina 6 O.S.26 of 2015

Gopala Rao under Registered Sale deed dt.12.04.1982 which is an extent of

Ac.2.05 cents in D.No: 238/A,in Doc. No:775/1982 of SRO, Amaravathi which is situated at Anathavaram village, Thullur Mandal, Guntur District. Since then, he was in possession and enjoyment of the same. The said Mattukoyya

Venkateswarlu while he was alive he gave Dowry to Nanduri Nagendram for her marriage purpose which is an extent of Ac.0.50 cents of cultivated land and gave cash of Rs.5,000/- and also gave Gold and silver articles to her worth about Rs.50,000/- and also gave for Rs.10,000/- for Daughter-n-law education purpose. Hence, she is not entitled any amount from M.Venkateswarlu. And further the said Y.Akkamma i.e. 2nd plaintiff got marriage in the year 1981 and at the time of her marriage, the said M.Venkateswarlu gave under dowry which is an extent of Ac.0.50 cents and also gave cash of Rs.5,000/-and also gave

Gold and Silver articles worth about for Rs.50,000/- to herself. Thereafter, the the said M.Venkateswarlu wife died on 30.10.1996. Immediately thereafter, he had no protection at Vaddamanu village, and also having ill-health and also old age problem at that time, due to the above said reasons, he came to Guntur and resided at his son’s residence i.e. 1st defendant .Except the 1st defendant the plaintiff or anybody never saw him for his welfare. And further due to ill- health and over-affection and also seeking his welfare by his son and also old age problem, he executed an Notarized Will dt.10.01.2005, the above said property which is an extent of Ac. 2.05 cents in favour of Mattukoyya

Nageswara Rao i.e. 1st defendant and also seeking his welfare and provided all the medicines to him. Now and then, the 1st defendant is in peaceful possession and enjoyment of the said property. Due to old age problem, the said

M.Venkateswarlu died on 12.08.2005. The 1st defendant gifted the said property to his son i.e. 2nd defendant under Registered Gift Deed dt.03.06.2011 vide Doc No:1280/2011 of SRO, Amaravathi. Since then, the 2nd defendant is in peaceful possession and the 2nd defendant gave the said land to one 7 O.S.26 of 2015

M.Malleswara Rao towards Kowl/Tenancy and also the said tenant is paying kowl/Maktha amount to the 2nd defendant regularly without any default. The plaintiffs bore grudge against the defendants 1 and 2, they issued false notice with false allegations against them. And there is no iota of truth in it. For all these years, the plaintiffs kept quite for it and recently filed a false and frivolous partition suit against the defendants. Neither the plaintiffs had any right nor they are in possession and enjoyment of the said property at any point of time. Without having any right over the said property, they are black- mailing the defendants 1 and 2 with a malafide intention to grab the said property. They have shown the market valuation as meagre amount in the valuation certificate, actually the court jurisdiction is District Court, Guntur and the Stamp duty is also paid insufficient. Without possession as per market valuation the plaintiff had to pay excess court fees into court properly. The 2nd defendant is the bonafide owner and having title and valid documents according to law. The same was recognized by the CRDA as per Revenue

Records. The same property was acquired by the Revenue authority under

Form No:7 by the Deputy Collector. And the same was recognized by the

Revenue authority as the 2nd defendant is the absolute owner according to law under Form no. 9.6 and Form No: 9.14 and the revenue authority recognized the same. Then, the revenue authority issued under kowl amount in favour of 2nd defendant. The plaintiffs without possession and without valid documents they are not entitled any relief against the defendants. They were separated long back and they are residing in different places. Only to get wrongful gain to them and to get wrongful loss the defendants, the plaintiffs filed a false, and frivolous suit against the defendants. And further the plaintiffs shown in the schedule boundaries are also different according to the 2nd defendant document. The plaintiffs had no avocation except and trying to grab the other lands in an illegal manner and without any manner of right over the schedule 8 O.S.26 of 2015 mentioned property. The defendants got issued proper reply notice with regard to property to the plaintiffs dt.23.12.2014. With malafide intention, they are trying to convince the court without any iota of truth in it. According to the

Adangal, the defendants are the absolute owners of the same. Hence, the plaintiffs are not entitled any partition against the defendants. Hence, it is liable to be dismissed in limine. The defendants 1 and 2 finally prayed to dismiss the suit with exemplary costs.

5. Basing on the above pleadings, the following issues are settled for trial:-

1. Whether the suit schedule property is liable for partition into three equal shares?

2. Whether the plaintiffs are entitled for one such share each as sought for?

3. Whether the father of the 1 st defendant executed a Will dt.10.01.2005 in favour of the 1 st defendant which is the property or not?

4. To what relief?

6. During the course of trial, on behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A1 to A7. On behalf of the defendants, D.Ws.1 and 2 were examined and marked Exs.B1 to B7.

7. Heard both the sides. Written arguments filed by the counsel for defendants and perused the same.

8.Issue Nos. 1 to 3:-

a) As per contention of the plaintiffs, they filed the present suit against the defendants for partition of the plaint schedule property into three equal shares. The origin of the case of the plaintiffs are that the plaintiffs 1 and 2 and the 1st defendant are none other than the children of Mattukoyya

Venkateswarlu who is their father. The said Mattukoyya Venkateswarlu purchased the plaint schedule property under a registered sale deed dated 12.4.1982 vide document No.775/1982 of SRO, Amaravathi from one 9 O.S.26 of 2015

Muraboina Gopalarao for an extent of Ac.2.05 cents. Since then, their father was possession and enjoyment of the same. The father of the plaintiffs and the 1st defendant died on 12.8.2005. The mother of the plaintiffs died at long back and thereafter, the 1st defendant being a male member maintained the same and used to hand over usefructs to both the plaintiffs from time to time and subsequently, they came to know that the 1st defendant with a malafide intention created sham and nominal document as if his father executed a document in his favour bequeathing the plaint schedule property to him. On that, they got issued legal notice under Ex.A1 on 12.12.2014 to call upon him for partition of the plaint schedule property into three equal shares and out of them, two shares to the plaintiffs 1 and 2 and the remaining share to the 1st defendant. Thereafter, the 1st defendant got issued a reply notice alleging that

Mattuoyya Venkateswarlu executed a registered Will dated 10.01.2005 and thereafter, he is in possession and enjoyment of the same. Later, they also issued rejoinder on 3.1.2015 stating that the 1st defendant never looked after the welfare of their father and their father died intestate without executing any document. Therefore, the document alleged to be executed by their father in favour of the 1st defendant by virtue of Will dated 10.01.2005 is a sham and nominal one and they also requested the 1st defendant to furnish photo copies of the same. Despite of that, he did not receive the notice and it was endorsed as ‘unclaimed’. Finally, as there is no other go, they constrained to file the present suit against the defendants 1 and 2 because the 1st defendant executed a gift deed in favour of the 2nd defendant by bequeathing the plaint schedule property, in turn, the 2nd defendant also surrendered the property to the CRDA authority. Therefore, the document covered under Ex.B1 Notarized Will dated 10.1.2005 and also the extract of gift deed covered under Ex.B3 dated 3.6.2011 are not binding upon the plaintiffs because Ex.B1 is a forged document pressed into service and under guise of Ex.B1, no property devolved to the 1st defendant 10 O.S.26 of 2015 and in turn, the 1st defendant has no right to execute any document in favour of the 2nd defendant by bequeathing the plaint schedule property with absolute rights and in turn, he surrendered the property to the CRDA Authority.

Therefore, the documents covered under Exs.B1 and B3 not at all taken into as a valid piece of evidence and it is presumed that the joint family property of the plaintiffs and the 1st defendant after death of Mattukoyya Venkateswarlu. It seems that both parties are entitled equal right at the rate of 1/3 each, total extent of 2/3rd share to both the plaintiffs and 1/3rd share to the 1st defendant. Therefore, the claim of the plaintiffs shall be taken into consideration.

b) In order to support the contention of the plaintiffs, they also placed relevant documents to show that Exs.A1 to A7 are relevant documents. Ex.A1 is the registration extract of sale deed vide document No.775/1982 of SRO,

Amaravathi stands in the name of their father dated 12.4.1982. Ex.A2 is

Adangal copy dated 9.12.2014, office copy of legal notice and reply notice and rejoinder covered under Exs.A3 to A5 are clearly indicated that Ex.B1 is pressed into service, though a legal notice was issued by both the plaintiffs calling the 1st defendant for partition of the plaint schedule property. Despite of that, they are taking two pleas, one is, it is a registered document as per reply notice under Ex.A4 and subsequently, they also issued rejoinder under Ex.A5

dated 3.1.2015. But, subsequently also, did not send the same to peruse both

the plaintiffs about execution of document i.e., Will alleged to be executed by their father in favour of the 1st defendant.

c) The learned counsel for the plaintiffs further argued that in this case, the claim of the defendants is very doubtful because according to the contention of the 1st defendant, initially, the father of the 1st defendant and the plaintiffs executed a registered Will dated 10.1.2005. But, subsequently, they also took another plea that it is a notarized Will. There are three claims 11 O.S.26 of 2015 pleaded by the 1st defendant with regard to execution of the Will, one is registered Will as per legal notice, second one is a notarized Will and the 3rd one is an unregistered Will. Whether the Will is properly executed by the father of the plaintiffs and the 1st defendant in favour of the 1st defendant shall be established by the 1st defendant because if any suspicious circumstances around the Will, such claim shall not be taken into consideration. If at all the contention of the 1st defendant is true, he straight away mentioned the clear fact whether it is registered one, unregistered one or notarized one. But, the

Will is the same. But, there are severe contradictions about the claim of the 1st defendant with regard to alleged to be executed a document i.e., Will in favour of the 1st defendant. Under guise of Ex.B1, no property devolved to him. In such circumstances, the 1st defendant has no manner of right to execute gift deed in favour of the 2nd defendant under Ex.B3 bequeathing the plaint schedule property in his favour and in turn, the 2nd defendant has no right to execute any agreement with the CRDA about surrender of the property. In the absence of any flow of title from 1st defendant to the 2nd defendant, such claim shall not be taken into consideration.

d) The learned counsel for the plaintiffs further argued that when the property of the plaintiffs and defendants is clearly established that it is the joint family property is originally origin of the property is that their father who purchased the plaint schedule property under Ex.A1 and subsequently, died intestate leaving behind the plaintiffs as well as the 1st defendant as children of

Mattukoyya Venkateswarlu. In such circumstances, in the absence of proof and relevancy about execution of Ex.B1 by the deceased Mattukoyya

Venkateswarlu in favour of the 1st defendant dated 10.1.2005, such property treated as a joint family property and joint and constructive possession of the plaintiffs established against the 1st defendant. In such circumstances, the plaint schedule property is fit for partition of the joint family property as 12 O.S.26 of 2015 prayed for. Therefore, the claim of the plaintiffs is clearly established by producing Exs.A1 to A7 coupled with supporting evidence who is P.W.2 who categorically supported the contention of the plaintiffs. Besides that, the 2nd plaintiff also examined as P.W.3. She also supported the contention of the plaintiffs. In such circumstances, the oral and documentary evidence are clearly and clinchingly establish the contention of the plaintiffs that the plaint schedule property in an extent of Ac.2.05 cents situated at D.No.238/A of

Ananthavaram village, Thulluru Mandal. Therefore, the plaintiffs are entitled the relief against the defendants 1 and 2 as prayed for because during the pendency of the suit, the 1st defendant died, the defendants 3 to 5 who are wife and daughters of the 1st defendant were added as necessary parties to the proceedings. Therefore, the claim of the plaintiffs has successfully proved for put the partition of the plaint schedule property into three equal shares and entitled one such each to the plaintiffs 1 and 2 and one such share to the legal heirs of the 1st defendant.

e) According to the contention of the defendants, what are the contentions raised by the plaintiffs are not true and correct. There is no cause of action for filing the present suit because in earlier occasion, the father of the plaintiffs already settled the property in their favour and also dowry and other lanchanams were given at the time of their marriages. According to their contention, the plaint schedule property is self acquired property of

Mattukoyya Venkateswarlu who is none other than the grand father of the 2nd defendant. The marriage of the 1st plaintiff was solemnized in the year 1975.

In the same manner, the marriage of P.W.3 who is the 2nd plaintiff was also performed in the year 1981. At the time of marriage, the father of the plaintiffs gave half acre each the property situated at Chavapadu village. Besides that, their father also gave Rs.5,000/- towards dowry and Rs.50,000/- of gold and silver ornaments to the 1st plaintiff. In the same manner, Rs.5,000/- to the 2nd 13 O.S.26 of 2015 plaintiff and Rs.50,000/- worth of gold and silver ornaments. Besides that, the father of the plaintiffs also gave an amount of Rs.10,000/- towards education expenses to the elder daughter of the 1st plaintiff. In the same manner, he also gave Rs.15,000/- to the 2nd plaintiff. After settling the property, the father of the plaintiffs is living along with the 1st defendant. The 1st defendant being a male member and son of Mattukoyya Venkaetswarlu looked after the welfare of the deceased Venkateswarlu. Out of love and affection, the said Venkateswarlu executed a document i.e., Will covered under Ex.B1 Notarized Will dated 10.01.2005 by bequeathing the plaint schedule property. After demise of

Mattukoyya Venkateswarlu, who died on 12.08.2005, the Will acted upon and came into force and the property devolved to the 1st defendant. Later, he is in possession and enjoyment of the same and thereafter, out of love and affection, the 1st defendant executed a Gift Deed in favour of the 2nd defendant under

Ex.B3 dated 3.6.2011 by bequeathing the plaint schedule property. Thereafter, he has been in possession and enjoyment of the same. By formation of capital, he surrendered the same to the CRDA authority and the CRDA authority also recognized his right by virtue of agreement between the 2nd defendant and the

CRDA under Ex.B6 is clearly shows that there is an agreement between the 2nd defendant and the CRDA about surrender of the property for an extent of

Ac.2.05 cents. Therefore, the CRDA also recognized the right of the 2nd defendant as a owner of the plaint schedule property and they disbursed the annuities from time to time to the account of the 2nd defendant. The said fact is also clearly established by the 2nd defendant by producing Ex.B7 Bank

Statement from 1.7.2021 to 31.7.2021 to show that the annuities were disbursed by the CRDA by time to time. Before that, the court also to be considered whether the plaint schedule property is devolved to the father at first instance by virtue of Ex.B1 and subsequently, to the 2nd defendant by virtue of Ex.B3 because Ex.B1 is executed by the grand father of the 2nd 14 O.S.26 of 2015 defendant by bequeathing the plaint schedule property and thereafter, he died under Ex.B2 death certificate to show that the said Mattukoyya Venkateswarlu died on 12.8.2005. Thereafter, Ex.B3 Gift Deed executed by the 1st defendant in favour of the 2nd defendant by bequeathing the plaint schedule property and later, the revenue record was also mutated in the name of the 2nd defendant pertaining to the plaint schedule property under Ex.B3 and B4 are 1-B

Namuna and Adangal are clearly indicated that the plaint schedule property being in possession and enjoyment of the 2nd defendant since long time.

Therefore, the claim of the defendants shall be taken into consideration. The plaintiff has no manner of right for seeking partition against the defendants because there is no jointness of plaintiffs and the 1st defendant at any point of time over the plaint schedule property. What are the properties given to both the plaintiffs were already settled by the grand father during his life time. In such circumstances, the claim of the plaintiffs shall be dismissed

f) The learned counsel for the defendants further argued that in this case, there is crucial aspects with regard to claim of the defendants because the defendants very much relied upon Ex.B1 is a notarized Will being executed by the deceased Mattukoyya Venkateswarlu in favour of the 1st defendant. To substantiate the contention of the defendants, one of the attestors of Ex.B1 was examined by the defendants who categorically supported the contention of the defendants to show that Ex.B1 was executed by Mattukoyya Venkateswarlu at

Guntur and the same was attested by him on 10.1.2005. Therefore, as per

Section 63 of the Indian Succession Act coupled with Section 68 of the Indian

Evidence Act clearly established the contention of the defendants to show that the proof of Will is clearly established by the defendants. When the proof of

Will is established by the defendants, the claim of the defendants shall be taken into consideration and the claim of the plaintiffs shall be dismissed. On the contra, according to the contention of the plaintiffs, when the Will is produced 15 O.S.26 of 2015

before this court, it must be proved by the defendants, otherwise, the same

shall be ignored and the plaintiffs are entitled for the suit claim against the defendants. Why because, according to the contention of the defendants, there are three Will are set up by the defendants. One is registered one, another is unregistered one and another is notarized Will. In earlier occasion also, during the life of the 1st defendant, he filed petitions i.e., I.A.1550/2018 and

I.A.1551/2018 for amendment of Written Statement about the nature of the

Will being executed by Mattukoyya Venkateswarlu. Both the petitions were dismissed. Aggrieved by the orders of this court, the 1st defendant preferred revisions vide CRP No.775/2019 and CRP No.914/2019 before Hon’ble High

Court of Andhra Pradesh and both revisions are also dismissed. Therefore, the earlier admission by the 1st defendant in the reply notice is clearly indicated that Ex.B1 is pressed into service. On the other hand, even according to

Ex.B3, it is clearly shows that if at all the 1st defendant got the plaint schedule property by virtue of Will dated 10.01.2005, there must be a recital on that.

But according to the document executed by the 1st defendant in favour of the 3rd defendant, the plaint schedule property devolved to the 1st defendant by way of inheritance, but not Will. In such circumstances, the execution of Ex.B1 by

Masttukoyya Venkateswarlu in favour of the 1st defendant does not arise. When there are suspicious circumstances about execution of Will, it was not ruled out by the opposite party, such claim cannot be taken into consideration. On that, he relied on a decision reported between: Murthy and Others Vs. C.

Saradambal and Others. The same was by Hon’ble Supreme Court in Civil

Appeal No.4270/2010 dated on 10.12.2021. As per the ratio, the Hon’ble

Apex Court clearly discussed if any party to the proceedings produced any Will either registered or unregistered Will, it is obligatory on the part of the party who wishes to rely upon, the proof of Will must be proved. When the proof of

Will is not proved by the party who relied upon, there are suspicious 16 O.S.26 of 2015 circumstances, it was not ruled out by the party who relied upon, such Will shall be rejected and claim of the plaintiffs shall be taken into consideration.

In this case, though the D.W.2 was examined in support of the defendants, but in the cross examination, it is clearly elucidated about the suspicious circumstances. In such circumstances, the claim of the plaintiffs shall be taken into consideration about non proving of the Will by the defendant and the claim of the defendants shall be discarded and it is liable for partition of the plaint schedule property. But, the facts mentioned in the above decision are not applicable to the present facts of the case. Even according to the contention of the defendants, the document executed at Guntur and D.W.2 categorically supported the contention of the defendants about execution of the document, the same was DTP and the same was signed by the father of the 1st defendant. Prior to execution of the document, the father of the 1st defendant intimated to him and in turn, he went to Guntur, where the 1st defendant is residing and out of his conscious, Ex.B1 is executed. On the other hand, it is also elucidated in the cross examination of DW.1 that another unregistered Will

dated 10.01.2005 was also shown to the witness and D.W.1 categorically

denied about execution of said document in favour of his father. Therefore,

Ex.B1 is a document executed by Mattukoyya Venkateswarlu in favour of the 1st defendant on 10.01.2005 and was also notarized by Raghuram, Advocate-cum-

Notary Public on 10.01.2005. In such circumstances, when the suspicious circumstances were ruled out by the defendants, such document is acted upon.

On that, he relied on a decision reported in between: D. Padmanabha Reddy (Died) per L.Rs. Vs. Smt. G. Anasuya and Others [(2004) 2 ALT 418]. As per the ratio, the Hon’ble Apex Court clearly discussed that when the proof of Will is proved by the party to the proceedings, such claim shall be taken into consideration. In this case, the proof of Will already established by the defendants as contemplated under Section 63 of the Indian Succession Act 17 O.S.26 of 2015 coupled with Section 68 of the Indian Evidence Act by examining D.W.2 about proof of Will and cleared all the suspicious circumstances. On the other hand, it is also categorically admitted by P.W.3 who is the 2nd plaintiff about execution of Gift Deed in favour of the 2nd by the 1st defendant in the year 2011 itself.

Therefore, it is clearly shows that the plaintiffs already known that they have no share over the plaint schedule property. But, they filed the present suit against the defendants saying that the plaint schedule property is a joint family property. Therefore, the decision relied by the plaintiffs is not identical with the present facts of the case. On the other hand, the decision relied by the defendants is identical with the present facts of the case.

g) The learned counsel for the defendants further argued that the intention of the plaintiffs shall also be taken into consideration. Even according to the admission of both the plaintiffs, the deceased Mattukoyya

Venkateswarlu not only having plaint schedule property and also other property i.e., house property in an extent of 2 and half cents. Except the plaint schedule property, they not filed the suit against the house site. If at all they got any joint right over the both properties belonged to said Venkateswarlu, they ought to have filed a suit against both properties. Therefore, the intention of the plaintiffs also shall be taken into consideration about futile attempt was made by the plaintiffs against the defendants for chance litigation. Except that, there is no truth in the contention of the plaintiffs’ case to show that they are bonafides to seek for the relief of partition of the plaint schedule property.

When the party to the proceedings not shown the property as a necessary property for partition of the property, such claim cannot be taken into consideration. On that, he relied on a decision reported in Sureddy Dhana

Lakshmi Nasrasayamma Vs. Pantham Tulasiratnam [(2018)2 AndhLD 443.

As per the ratio, the Hon’ble Apex Court clearly discussed that if at all the plaintiffs failed to show all joint properties for partition, in such circumstances, 18 O.S.26 of 2015 it is bad for non joinder of all properties. Hence, suit is liable to be dismissed.

In this case also, even according to the contention of the defendants, not only the plaint schedule property and also another property an extent of two and half cents house site was not put for partition of the same. On the contra, it is also elucidated in the cross examination P.Ws.1 and 3, they categorically admitted that Ac.0.02 ½ cents also available to the father. When the other property is available to the plaintiffs which belong to their father, why they claimed alone against the plaint schedule property for an extent of Ac.2.05 cents which were already given by deceased Mattukoyya Venkateswarlu in favour of the 1st defendant and later, the property was already given to the 2nd defendant under Ex.B3 and in turn, he also surrendered the property to the

CRDA. The CRDA also recognized his right and mutated his name in revenue records and disbursing the annuities to the 2nd defendant by time time. It is clearly shows that the plaintiffs filed the suit against the defendants without any cause of action. On the other hand, even according to contention of the plaintiffs, there is a joint and constructive possession and the 1st defendant has to disburse the amount by time to time. Except oral testimony, there is no supporting document to that effect. On the contra, it is also established the contention of the defendants they are having possession and enjoyment over the plaint schedule property since long time time after demise of Mattukoyya

Venkateswarlu in the year 2005 and thereafter, the property devolved to the 2nd defendant by virtue of Ex.B3. When the father of the plaintiffs died in the year 2005, why they waited upto 2015 must be explained. But, there is no explanation offered by the plaintiffs why they waited about nine years after execution of Ex.B1 notarized Will in favour of the 1st defendant. Therefore, it is clearly shows that the plaintiffs filed the present suit against the defendants for chance litigation without any jointness over the plaint schedule property. On the contra, the defendants clearly established that the father of the 1st 19 O.S.26 of 2015 defendant executed a Will in a fit state of mind by bequeathing the plaint schedule property in the presence of D.W.2 under Ex.B1. When the proof of

Will is proved by the opposite party, the plaintiffs are not supposed to claim any share over the plaint schedule property. On the other hand, it is also clearly established the contention of the defendants that half acre each to both plaintiffs have given by their father. They also purchased the property situated at Chavapadu and sold out the same and thereafter, they purchased the property at Vaddamanu. In such circumstances, it is clearly shows that being a male member, the 1st defendant rendered services to his father by name

Mattukoyya Venkateswarlu and in turn, he executed a document in favour of the 1st defendant out of love and affection. Therefore, it is clearly shows that the plaintiffs did not add another property i.e., Ac.0.02 ½ cents of house site as a necessary property to the proceedings for partition of the property for whole.

In such circumstances, it is bad for non joinder of necessary property.

Therefore, the facts mentioned in the decision are squarely applicable to the present facts of the case.

h) In view of my elaborate discussion, the plaintiffs failed to establish their contention against the defendants for joint and constructive possession to seek for partition at the rate of 1/3rd to each plaintiffs 1 and 2 each. Therefore, the plaintiffs are not entitled any relief as prayed for. Accordingly, issue Nos.1 to 3 are answered against the plaintiffs.

ISSUE No.4:-

9. In the result, the suit is dismissed. In view of relationship between both parties, both parties do bear their own costs.

Dictated to the Stenographer, transcribed and typed by him, corrected

and pronounced by me in the open Court, on this the21st day of April, 2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

20 O.S.26 of 2015

Appendix of Evidence

Witnesses Examined

FOR PLAINTIFFS:

PW1 : N. Nagendramma PW2 : K. Ankamma Rao PW3 : Y. Ankamma

FOR DEFENDANTS:

DW1: M. Chaitanya Dinesh @ Sunny DW2: J. Mariadasu

EXHIBITS MARKED

FOR PLAINTIFF :

Ex.A1/12.4.1982 : Registration extract of sale deed doc.No.775/1982 of SRO, Amaravathi in the name of Mattukoyya Venkateswarlu relating to plaint schedule property. Ex.A2/9.12.2014 : Adangal Copy obtained from mee seva. Ex.A3/12.12.2014: Office copy of legal notice got issued by the plaintiffs to the defendants. Ex.A4/23.12.2014: Reply notice got issued by defendants to the plaintiffs. Ex.A5/3.1.2015: Office copy of rejoinder notice got issued by the plaintiffs. Ex.A6/–: Returned rejoinder notice send to counsel for defendants with an endorsement as ‘unclaimed’. Ex.A7/3.6.2011: Extract of Gift deed Doc.No.1280/2011 of SRO, Amaravathi executed by 1st defendant in favour of the 2nd defendant.

FOR DEFENDANTS:

Ex.B1/10.1.2005 : Notarized Will. Ex.B2/12.8.2005 : Death Certificate of M. Venkateswarlu obtained through online. Ex.B3/3.6.2011: Extract of Gift Deed. Ex.B4/31.10.2022: 1-B Namuna issued by the Tahsildar, Thulluru. Ex.B5/31.10.2022: Adangal issued by the Tahsildar, Thulluru. Ex.B6/–: Form No.9.14 issued by the Deputy Collector, CRDA, Unit No.26, Amaravathi in the name of the 2nd defendant. Ex.B7/31.7.2021 : Online copy of Bank Statement of CRDA belongs to the 2nd defendant from 1.7.2021 to 31.7.2021 to show that maktha was deposited in his account.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Friday, this the 21st day of April, 2023.

O.S.No.26 of 2015

Between:-

1. Nanduri Nagendram, w/o. Vinsent, Hindu, 55 years, Housewife, r/o. Vykuntapuram village, Amaravathi Mandal, Sattenapalli JCJC.

2. Yedluri Akkamma, w/o. China Veeraiah, Hindu, 47 years, Housewife, r/o. Inavolu village,

Thulluru Mandal, Mangalairi JCJC. ... Plaintiffs.

And

1.Mattukoyya Nageswara Rao (Died) 2.Mattukoyya Chaitanya Dinesh @ Sunny, s/o. Nageswara Rao, Hindu, 23 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *3.Mattukoyya Vijaya Kumari, w/o. Late Mattukoyya Nageswara Rao, Hindu, 61 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *4.Mattukoyya Divya, w/o. Tella Raja Sundar, Hindu, 35 years, Employee, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC. *5.Mattukoyya Deepthi, D/o. Late Mattukoyya Nageswara Rao, Hindu, 33 years, r/o. Door No.7-17-407, 3rd Lane, Ratnapuri Colony, Amaravathi Road, Guntur City, Guntur Mandal and JCJC.

(*Amended as per orders in I.A.259/2021, dt.23.2.2021) ... Defendants.

Originally, the plaintiffs 1 and 2 filed the suit against the defendants 1 and 2 for partition of the plaint schedule property into three equal shares by metes and bounds and to allot one such share each to the plaintiffs by separate possession thereof and for costs of the suit. Subsequently, during the pendency of the suit, the 1st defendant died. As such, the defendants 3 to 5 being legal heirs of the deceased 1st defendant are added as per orders in I.A.259/2021, dt.23.2.2022.

Plaint presented on : 29.01.2015Plaint filed on : 29.01.2015

Cause of action for the suit arose on 12.4.1982, when Mattukoyya Venkateswarlu who is the father of the plaintiffs and the 1st defendant purchased the plaint schedule property from one Maruboina Gopala Rao through a registered sale deed Dt.12.4.1982 vide document No.775/1982 of SRO, Amaravathi, and was in possession and enjoyment of the plaint schedule property till his death as intestate which happened on 12.8.2015, soon after death of Mattukoyya Venkateswarlu and his wife Venkayamma as intestate, when the plaintiffs and the 1st defendant being their legal heirs i.e. daughters and son respectively are in joint possession and enjoyment of the plaint schedule property upon whom it devolved and when the 1st defendant being elder and male member managed the plaint schedule property on behalf of plaintiffs and also has been distributed the usefructs there from to the plaintiffs and as matter stood thus, when the plaintiffs being noticed that the 1st defendant is trying to alienate along with the 2nd defendant regarding the plaint schedule property, since long back, when the plaintiffs orally demanding the 1st defendant for partition of the plaint schedule property and when the 1st defendant is postponing the same on one pretext or other, recently, when the plaintiffs reliably came to know that inasmuch as they are demanding for partition, the 1st defendant with evil intention of denying and avoiding the shares of the plaintiffs in the plaint schedule property proclaiming falsely in Vaddamanu village as he is only legal heir and no one born to his parents and requested several persons to obtain their signatures to gain the pattadar pass book and title deeds from the Revenue Authority wrongfully in his favour only and while so, recently, when the A.P. State Government announced to establish state capital in and around Thulluru mandal which is nearby the schedule property, for which, the rates of the lands increased abnormally and as such, when the defendants hatched a plan to alienate the plaint schedule property as they like without giving shares to the plaintiffs, at this juncture, when the plaintiffs fell that it is no longer safe to continue the joint possession of the plaint schedule property and in those circumstances, when the plaintiffs got issued a legal notice dt.12.12.2014 to the defendants demanding them to cooperate for partition of the plaint schedule property into three equal shares and for allotment of 2 such shares to the plaintiffs, when the defendants having received the said notice got issued a reply notice dt.23.12.2014 with false averments and claims and after receiving the said reply notice, when the plaintiffs got issued a rejoinder notice dt.3.1.2015 and when the said rejoinder notice dt.3.1.2015 sent to the defendants counsel was returned with an endorsement as ‘unclaimed’, when better mediations and counsels made on behalf of the plaintiffs proved futile due to the adamant and negligent manner of the defendants and at Ananthavaram village, Thulluru mandal, where the plaint schedule property situated is within the jurisdiction of this court.

Particulars of valuation:-

This being a suit for partition of the plaint schedule property into three equal shares by metes and bounds and to allot one such share each to the plaintiffs 1 and 2 by separate possession, the value of the plaint schedule property is Rs.6,18,000/- 1st plaintiff’s share comes to Rs.6,18,000/- x 1/3Rs.2,06,000/- 2nd plaintiff’s share comes to Rs.6,18,000/- x 1/3Rs.2,06,000/-

Value of the suit for the purpose of jurisdiction is Rs.4,12,000/- on which a fixed court fee of Rs.400/- i.e., Rs.200/-+Rs.200/- is paid u/s.34(2) of APCF and SV Act, 1956.

This suit came before me on 10.04.2023 for final hearing in the presence of Sri P.S.C. Prasad, Sri T. Madhusudana Rao, Sri K. Koteswara Rao, Advocates for the plaintiffs and of Sri G. Ankamma Rao, Sri N. Madhusudana, Advocates for defendants 2 to 4, the 1st defendant died during pendente lite and upon hearing both sides, perusing the material on record and having stood over for consideration till this day, this Court doth order and decree as follows:-

i) that the suit be and the same is hereby dismissed;

v) that both parties do bear their own costs. (Plaintiff Costs Rs.29770/-, Defendants 2 to 4 costs Rs.33,335/-)

Plaint schedule is attached hereto. Given under my hand and the seal of the Court, this the 21st day of April, 2023. Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

TABLE OF COSTS

for Plaintiffs: For D2 toFor D1 : D4: Stamp on vakalat 2-00 2-00Died Stamp on plaint400-00 – – Stamp on process428-00– – Advocate fee (Sr.) 28840-0025000-00 – Advocate fee (Jr.) – 8333-00 – Writing charges50-00 – – Typing charges50-00 – –

Total 29770-00 33335-00 Nil

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

S C H E D U L E

Guntur District, Narasaraopet Registration District, Amaravathi Sub

Registration, Thulluru Mandal, Ananthavaram village, D.No.238/A, an extent of Ac.2.00 cents of land but as per Revenue Record, it is Ac.2.06 cents of land bounded by:

East : Land belongs to Gottam Rami Reddy South: Land belongs to Bandi Adam West : Land belongs to Dasari Gabriel North: Land belongs to Jesta Sai Babu. Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

1 O.S.47 of 2022

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Wednesday, this the 18th day of April, 2023.

O.S.No.47 of 2022

Between:-

M/s. R & N Sea Foods, rep. by one of the Managing Partners, Alapati Tulasi Venkata Ramana, s/o. Somaiah, Hindu, 51 year, Flat No. 103, Kranthi Residency, Bhimavaram,

West Godavari District, Bhimavarsam JCJC. ... Plaintiff.

And

Sainedi Srikanth, s/o. Srinivasa Rao @ Venkateswara Rao, Hindu, 50 Years, Builder, D.No. 3-16-195, Flat No. 103, Indra Prastha Udhisara Apartments, Sri Vidya Colony Venkat Nager, Kakinada City, Kakinada Urban Mandal, East Godavari District, presently changed as Kakinada District,

Kakinada JCJC. ... Defendant.

This suit came before me on 13.04.2023 for final hearing in the presence of Sri V. Satyanarayana Murthy, Sri K. Narasimha Rao, Advocates for the plaintiff and of the defendant remained exparte and upon hearing the counsel for the plaintiff, perusing the material on record and having stood over for consideration till this day, the Court delivered the following:-

:: J U D G M E N T ::

The suit is filed by the plaintiff against the defendant for recovery of

Rs.40,41,667/- being the sum of principal and interest due on a mortgage deed dated 5.12.2019 executed by the defendant in favour of the plaintiff for Rs.25,00,000/- agreeing to repay the same with interest at the rate of 24% per annum and for costs.

2.The brief averments of the plaint are as follows :

a) The Plaintiff is a Partnership Firm registered on 3.2.2015 under the Name & Style of ‘M/s. R & N Sea Foods', bearing Registration No.38 of 2015 Represented by Managing Partners, 1. Alapati Tulasi Venkata 2 O.S.47 of 2022

Ramana & 2. Lingam Nageswara Rao as per Section 58(1) of the Indian

Partner Ship Act, 1932 by the Registrar of Firms at Bhimavaram. The

Object of the Firm shall be to carry on the Business of Agents, Managing

Agents Selling and Domestic Agents of all types of Shrimp and Aqua

Products and there is no stipulation with regard to the investment of capitals by the partners and they can invest the Capital at their ability and convenience. As per the Clause 19 of the Partnership Deed, any one of the

Partners is authorized to Represent, Appear, Act, Sign and to depose evidence in all Civil and Criminal Cases on behalf of the firm in all legal matters relating to Firm to sue and be sued on behalf of the Firm.

b) An extent of 167 Square Yards of site, bearing Plot No.41, in D.

N.48/1 sub-divisioned as D.No.48/IB in full extent Ac.3-42 Cents vide under CRDA Guntur LPA No.46/2018/GST approval Plan, situated in

Thadikonda Grama Panchyat, Tadikonda Village, Thadikonda Mandal,

Guntur District, more fully described as Plaint Schedule annexed belongs to the Defendant who purchased the same from one Vadde Haribabu and

Alluri Venkata Phanindra Varama @ Alluri Venkata Panendra Varma under a Register Sale Deed Dt.18.9.2018 generated on 19.9.2018 bearing

Doc.No.5406/2018 for a valuable consideration of Rs.4,68,000/- which was then paid and received as recited therein under a Cheque No.866210, Dt:

18.9.2018 drawn in favor of Vadde Haribabu for an Amount of

Rs.2,80,000/- and another Cheque No.866211, Dt:18-9-2018 drawn in favour of Alluru Venkata Pahanindra Varma for an Amount of

Rs.1,88,000/-, totaling to the tune of Rs.4,68,000/- through his "Indusind

Bank Kakinda Branch’. Since the date of Purchase, the Defendant has been in peaceful enjoyment of the Plaint Schedule Property as an absolute owner thereof without any demur from any quarter.

3 O.S.47 of 2022

c) As the matter stands thus, for his Business Investment, the

Defendant borrowed an amount of Rs.25,00,000/- from the Plaintiff Firm and executed a Promissory Note on 5.12.2019 in favorr of the Firm, undertaking to repay the same by him, on demand, with the interest thereon, at the rate of 24% per annum either to Firm or to its order. On the next date of execution of Promissory Note Dt:5.12.2019, the Defendant, on 6.12.2019, approached the Plaintiff Firm represented by its one of the

Partners and offered his above Original Sale Deed, Dt 18.9.2018, bearing

Doc. No.5406/2018 to the Plaintiff Firm towards Security of the above debt under the Promissory Note Dt:5-12-2019 and the Defendant also then expressed his intention to create an Equitable Mortgage in favor of the

Plaintiff Firm by deposit of above Original Title Deed styled as above

Registered Sale Deed, bearing Doc.No.5406/2018 with the Plaintiff Firm.

Thus, the Defendant voluntarily created an Equitable Mortgage by having deposited his Original Title Deed for the Plaint Schedule Property. Since the date of deposit of the above Title Deed, the Plaint Schedule Property is under Mortgage with the Plaintiff Firm without any demur from any quarter

d) Later, despite repeated reminders and demands made by the

Plaintiff, the Defendant has been shelving to discharge Equitable Mortgage

Debt with the interest thereon to the Firm, on some pretext or other. Then, the Plaintiff Firm was constrained to have got issued the Registered Legal

Notice, on 27.6.2022 demanding the Defendant to discharge the same. The

Defendant is evading to receive the Legal Notice, on some pretext or other.

As there is no other alternative, this suit is filed on the foot of simple equitable mortgage for passing preliminary decree for sale of the mortgaged plaint schedule property and for recovery of mortgage amount from and out 4 O.S.47 of 2022 of sale proceeds thereon and in case, the sale proceeds thereof are not sufficient to discharge the mortgage debt, a personal decree against the defendant may be passed in the interest of justice.

3.Inspite of issuance of summons to the defendant by way of publication, he failed to appear before this court to prosecute his case by filing Written Statement, as such, he was set exparte.

4.In order to support the plaintiff’s case, one of the partners of the plaintiff firm himself examined as PW1 apart from examining the attestor and the scribe of suit promissory note as P.Ws.2 and 3 respectively and Exs.A1 to A5 are marked on behalf of the plaintiff.

5.Heard the learned counsel for the plaintiff.

6.Now the point for consideration is:

Whether the plaintiff is entitled to recover the suit claim from the defendant as prayed for?

7.POINT:

(i) The case of the plaintiff is that the Plaintiff being a Partnership

Firm registered on 3.2.2015 under the Name & Style of ‘M/s. R & N Sea

Foods', bearing Registration No.38 of 2015 represented by Managing

Partners, 1. Alapati Tulasi Venkata Ramana & 2. Lingam Nageswara Rao as per Section 58(1) of the Indian Partner Ship Act, 1932 by the Registrar of

Firms at Bhimavaram is carry on the business of Agents, Managing Agents

Selling and Domestic Agents of all types of Shrimp and Aqua Products and as per the Clause 19 of the Partnership Deed, any one of the Partners is authorized to Represent, Appear, Act, Sign and to depose evidence in all

Civil and Criminal Cases on behalf of the firm in all legal matters relating to

Firm to sue and be sued on behalf of the Firm. The defendant for his business investment borrowed Rs.25,00,000/- from the plaintiff firm by executing a promissory note on 5.12.2019 undertaking to repay the said 5 O.S.47 of 2022 amount with interest at 24% per annum either to the firm or its order and on the next day of execution of promissory note i.e., on 6.12.2019, the defendant offered his original sale deed document No.5406/2018 dated 18.9.2018 towards the security for the above debt borrowed under promissory note and expressed his intention to create an equitable mortgage in favour of the plaintiff firm and the defendant voluntarily created an equitable mortgage by depositing his title deed and later, despite of repeated reminders and demands made by the plaintiff, the defendant has been shelving to discharge equitable mortgage debt with interest therein to the firm and as such, the plaintiff firm got issued legal notice on 27.6.2022 to the defendant demanding him to discharge the debt due to the plaintiff firm, but the defendant is evading to receive the legal notice.

Hence, the plaintiff firm is constrained to file this suit.

(ii) To prove the same, one of the partners of the plaintiff firm examined as PW1 who filed his affidavit in lieu of examination-in-chief, wherein he reiterated the contents of plaint and as such, the examination- in-chief of PW1 is nothing but the true replica of plaint and he got marked

Exs.A1 to A5. On perusal of Exs.A1 to A5, it is seen that Ex.A1 is the original promissory note executed by the defendant in favour of the plaintiff

dated 5.12.2019 for Rs.25,00,000/-. Ex.A2 is the original sale deed

dt.18.9.2018 vide document No.5406/2018 deposited by the defendant with the plaintiff firm with an intention to create equitable mortgage towards security for the debt due under Ex.A1. Ex.A3 is office copy of legal notice dated 27.6.2022. Ex.A4 is the postal receipt dt.27.6.2022. Ex.A5 is notary attested Partnership firm deed dated 3.2.2015 of the plaintiff firm.

In addition to the evidence of P.W.1, the plaintiff firm also examined the attestor and scribe of Ex.A1 respectively as P.Ws.2 and 3 who supported 6 O.S.47 of 2022 the evidence of P.W.1 with regard to borrowing amount by the defendant under Ex.A1 and also deposit of title deed by the defendant with the plaintiff firm with an intention to create equitable mortgage. The defendant failed to repay the amount due under Ex.A1 promissory note even after repeated demands made by the plaintiff.

(iii) The learned counsel for the plaintiff further argued that in the absence of any proof of mode of payment in case of deposit of title deed by the defendant regarding the receipt of amount under suit promissory note is valid and taking into consideration about production of promissory note to show that the defendant received amount and in token, he executed the suit promissory note by depositing title deed. In such circumstances, the claim of the plaintiff shall be taken into consideration. On that, he relied on a decision reported in Yadika Venkatareddy Vs. Gujjula China Rami

Reddy [2012(4) ALT 705]. As per ratio, the Hon’ble Apex Court clearly discussed that when the promissory note produced by the plaintiff about consideration received by opposite party, it shall be considered as acknowledgment of the existence liability. In this case also, though the plaintiff did not produce about mode of payment, however, the promissory note covered under Ex.A1 is clearly established the contention of the plaintiff to show that the defendant received an amount of Rs.25,00,000/- from the plaintiff and in turn deposit of title deed by acknowledging his debt. Therefore, the facts mentioned in the decision are squarely applicable to the present facts of the case.

(iv) The learned counsel for the plaintiff further argued that whether deposit of title deed in case of simple mortgage, whether it is need for registration or not. Even without registering the document in case of mortgage by deposit of title deed (equitable mortgage), there is no need for 7 O.S.47 of 2022 registration. On that, he relied on a decision reported in Kamireddi

Atchuthamba Vs. State Bank of India [2019(4) AmLJ 175 (DB)]. As per ratio, the Hon’ble apex court clearly discussed as per Section 58(f) and

Section 59 of the Transfer of Property Act clearly discussed whether in case of equitable mortgage, is there any necessity for registered document to support the contention of the plaintiff. But, as per the ratio, it is clearly discussed that it does not require registration. Therefore, in this case though the plaintiff produced ample evidence in the absence of registered document relating to Memorandum of Deposit of Title Deed evidencing that there is an equitable mortgage between the plaintiff and the defendant at the time of taking consideration from the plaintiff. Therefore, non production of any registered document regarding the equitable mortgage is also maintainable against the defendant for recovery of amount due under promissory note which was executed by the defendant in favour of the plaintiff. Therefore, the facts mentioned in the decision are squarely applicable to the present facts of the case.

(v) But, in this case, the defendant was set ex parte and the evidence and the case of the plaintiff is unchallenged and unrebutted and the defendant did not choose to prosecute his case and hence, the evidence of

PWs1 to 3 is intact and unchallenged and the plaintiff clearly proved his case by examining himself as P.W.1 and also examining the attestor and the scribe of Ex.A1 as P.Ws.2 and 3 respectively. Hence, the evidence of PWs1 to 3 is intact and unchallenged and the plaintiff clearly proved his case.

Accordingly, this point is answered in favour of the plaintiff.

8. In the result, the suit is preliminary decreed with costs in favour of the plaintiff, directing the defendant to pay a sum of

Rs.40,41,667/- (Rupees Forty Lakhs Forty One Thousand Six Hundred and 8 O.S.47 of 2022

Sixty Seven only) along with subsequent interest at the rate of 12% p.a.

from the date of filing of the suit, till the date of decree on principal amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) thereafter at 6% p.a. till realization. Time for redemption is six months. In case the amount realized from mortgaged property is not sufficient, the plaintiff is at liberty to proceed against the defendant personally.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court, on this the 18th day of April,2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

Appendix of Evidence

Witnesses Examined

FOR PLAINTIFF :

PW1 : A. Tulasi Venkata Ramana PW2 : B. Veera Venkata Satyanarayana Murthy @ Pedababu PW3 :Y. Anil Ratnakumar

FOR DEFENDANT : NIL (Exparte)

EXHIBITS MARKED

FOR PLAINTIFF :

Ex.A1/5.12.2019 : Promissory note executed by the defendant in favour of the plaintiff for Rs.25,00,000/-. Ex.A2/–: Regd. Sale Deed Doc.No.5406/2018 deposited by the defendant with the plaintiff firm with an intention to create equitable mortgage towards the security for the debt due under promissory note dt.5.12.2019. Ex.A3/27.6.2022 : Office copy of legal notice got issued to defendant. Ex.A4/27.6.2022 : Postal receipt. Ex.A5/3.2.2015: Notary Attested copy of Partnership Firm of the plaintiff firm.

FOR DEFENDANT: Nil (Expate) Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Wednesday, this the 18th day of April, 2023.

O.S.No.47 of 2022

Between:-

M/s. R & N Sea Foods, rep. by one of the Managing Partners, Alapati Tulasi Venkata Ramana, s/o. Somaiah, Hindu, 51 year, Flat No. 103, Kranthi Residency, Bhimavaram,

West Godavari District, Bhimavarsam JCJC. ... Plaintiff.

And

Sainedi Srikanth, s/o. Srinivasa Rao @ Venkateswara Rao, Hindu, 50 Years, Builder, D.No. 3-16-195, Flat No. 103, Indra Prastha Udhisara Apartments, Sri Vidya Colony Venkat Nager, Kakinada City, Kakinada Urban Mandal, East Godavari District, presently changed as Kakinada District,

Kakinada JCJC. ... Defendant.

The suit is filed by the plaintiff against the defendant for recovery of Rs.40,41,667/- being the sum of principal and interest due on a mortgage deed

dated 5.12.2019 executed by the defendant in favour of the plaintiff for

Rs.25,00,000/- agreeing to repay the same with interest at the rate of 24% per annum and for costs.

Plaint presented on : 01.07.2022Plaint filed on : 25.07.2022

Cause of action for the suit arose on 5.12.2019, when the defendant borrowed amount of Rs.25,00,000/- from the plaintiff and executed suit promissory note in favour of the plaintiff firm, on 6.12.2019, when the defendant deposited his title deed with the plaintiff with a view to create equitable mortgage in favour of the plaintiff firm, later, when the Managing Partners of the plaintiff firm demanded the defendant to discharge the mortgage debt with interest thereon, when the defendant failed to pay the same, on 27.6.2022, when the plaintiff got issued legal notice to the defendant demanding him to discharge the same, when the defendant evaded to receive the said notice and kept quiet, at Bhimavaram of West Godavari District, where the suit promissory note was executed and where the original title deed of the plaintiff was deposited with the plaintiff firm towards security for the debt and at Tadikonda, where the mortgaged schedule property situated is within the jurisdiction of this court.

Particulars of valuation :

Amount under Equitable mortgage on suit promissory note Rs.25,00,000/- Interest thereon at 24% p.a. from 5.12.2019 to 30.06.2022 Rs.15,41,667/- ----------------------- Total Rs.40,41,667/-

On which a Court fee of Rs.42,926/- is paid U/s.31 of APCF & SV Act, 1956.

Value of the suit for the purpose of jurisdiction is Rs.40,41,667/-.

This suit came before me on 13.04.2023 for final hearing in the presence of Sri V. Satyanarayana Murthy, Sri K. Narasimha Rao, Advocates for the plaintiff and of the defendant remained exparte and upon hearing the counsel for the plaintiff, perusing the material on record and having stood over for consideration till this day, this Court doth order and decree as follows:-

It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this 30th day of June, 2022 is the sum of Rs.40,41,667/- i.e., Rs.25,00,000/- principal and Rs.15,41,667/- interest on the said principal amount and costs of notice, the sum of Rs.-- for costs, charges and expenses [other than the costs of the suit] properly incurred by the plaintiff in respect of the mortgage security, together with interest thereon, and the sum of Rs.42,928/- for the institution costs of the suit awarded to the plaintiff, making in all the sum of Rs.40,84,595/-.

2] i] And it is hereby ordered, declared and decreed as follows:-

That the defendant do pay into court on or before the 17th day of October, 2023 or any later date upto which time for payment may be extended by court the said sum of Rs.40,84,595/- along with subsequent interest at the rate of 12% per annum from the date of suit till the date of decree on principal amount of Rs.25,00,000/- and thereafter at 6% per annum till realization.

ii) that in case, the amount realized from the mortgaged property is not sufficient, the plaintiff be at liberty to proceed against the defendant personally;

III]That on such payment and on payment thereafter before such date as the court may fix, or such amount as the court may adjudge in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of order XXXIBV of First schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be handed over to the defendants or to such person he appoints and the plaintiff shall if so required re-convey or re-transfer the said property free from the said mortgage and clear off free from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so, required deliver upto the defendants quiet and peaceable possession of the said property.

IV]And it is further ordered and decreed that in default of payment as aforesaid the plaintiff may apply to the court for a final decree for the sale of the mortgaged property and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold and for purpose of such sale, the plaintiff shall produce before the court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

V] And it is hereby further ordered and decreed that the money realized by such sale shall be paid into court and shall be duly applied for after deduction the free from of the expenses of the sale] in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10 together with such subsequent interest as may be payable under rule 11 of order XXXIV of the First schedule to the Code of Civil Procedure, 1908, and that the balance, if any shall be paid to the defendants or other person entitled to receive the same.

VI]And it is hereby further ordered and decreed that if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid the plaintiff shall not be at liberty [where such remedy is open to him under the terms of the mortgage and is not barred by law for the time being in force] to apply for a personal decree against the defendants for the amount of the balance and that the parties are at liberty to apply to the court from time to time as they may have occasion and on such application or otherwise the court may give such directions as it thinks fit.

Plaint schedule is attached hereto.

Given under my hand and seal of the court, this the 18th day April, 2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

TABLE OF COSTS

Description For Plaintiff: For Defendant: Rs. Ps.Rs. Ps.

1Stamp on Vakalat 2-00Exparte 2Plaint fees42926-00– 4ProcessCM &FC not– filed 5Pleaders Fees (Sr)– – 6Pleaders Fees (Jr)– – 7Typing Charges– – 8Writing Charges– –

Total 42928-00 Nil

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

1 O.S.46 of 2022

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Wednesday, this the 18th day of April, 2023.

O.S.No.46 of 2022

Between:-

M/s. R & N Sea Foods, rep. by one of the Managing Partners, Alapati Tulasi Venkata Ramana, s/o. Somaiah, Hindu, 51 year, Flat No. 103, Kranthi Residency, Bhimavaram,

West Godavari District, Bhimavarsam JCJC. ... Plaintiff.

And

Sainedi Srikanth, s/o. Srinivasa Rao @ Venkateswara Rao, Hindu, 50 Years, Builder, D.No. 3-16-195, Flat No. 103, Indra Prastha Udhisara Apartments, Sri Vidya Colony Venkat Nager, Kakinada City, Kakinada Urban Mandal, East Godavari District, presently changed as Kakinada District,

Kakinada JCJC. ... Defendant.

This suit came before me on 13.04.2023 for final hearing in the presence of Sri V. Satyanarayana Murthy, Sri K. Narasimha Rao, Advocates for the plaintiff and of the defendant remained exparte and upon hearing the counsel for the plaintiff, perusing the material on record and having stood over for consideration till this day, the Court delivered the following:-

:: J U D G M E N T ::

The suit is filed by the plaintiff against the defendant for recovery of

Rs.40,41,667/- being the sum of principal and interest due on a mortgage deed dated 5.12.2019 executed by the defendant in favour of the plaintiff for Rs.25,00,000/- agreeing to repay the same with interest at the rate of 24% per annum and for costs.

2.The brief averments of the plaint are as follows :

a) The Plaintiff is a Partnership Firm registered on 3.2.2015 under the Name & Style of ‘M/s.R & N Sea Foods', bearing Registration No.38 of 2015 Represented by Managing Partners, 1. Alapati Tulasi Venkata 2 O.S.46 of 2022

Ramana & 2. Lingam Nageswara Rao as per Section 58(1) of the Indian

Partner Ship Act, 1932 by the Registrar of Firms at Bhimavaram. The

Object of the Firm shall be to carry on the Business of Agents, Managing

Agents Selling and Domestic Agents of all types of Shrimp and Aqua

Products and there is no stipulation with regard to the investment of capitals by the partners and they can invest the Capital at their ability and convenience. As per the Clause 19 of the Partnership Deed, any one of the

Partners is authorized to Represent, Appear, Act, Sign and to depose evidence in all Civil and Criminal Cases on behalf of the firm in all legal matters relating to Firm to sue and be sued on behalf of the Firm.

b) An extent of 167 Square Yards of site, bearing Plot No 40, in D.

N.48/1 sub-divisioned as D.No.48/IB in full extent Ac.3-42 Cents vide under CRDA Guntur LPA No.46/2018/GST approval Plan, situated in

Thadikonda Grama Panchyat, Tadikonda Village, Thadikonda Mandal,

Guntur District, more fully described as Plaint Schedule annexed belongs to the Defendant who purchased the same from one Vadde Haribabu and

Alluri Venkata Phanindra Varama @ Alluri Venkata Panendra Varma under a Register Sale Deed Dt.18.9.2018 generated on 19.9.2018 bearing

Doc.No.5405/2018 for a valuable consideration of Rs.4,68,000/- which was then paid and received as recited therein under a Cheque No.866208, Dt:

18.9.2018 drawn in favor of Vadde Haribabu for an Amount of

Rs.2,80,000/- and another Cheque No.866209, Dt:18-9-2018 drawn in favour of Alluru Venkata Pahanindra Varma for an Amount of

Rs.1,88,000/-, totaling to the tune of Rs.4,68,000/- through his "Indusind

Bank Kakinda Branch’. Since the date of Purchase, the Defendant has been in peaceful enjoyment of the Plaint Schedule Property as an absolute owner thereof without any demur from any quarter.

3 O.S.46 of 2022

c) As the matter stands thus, for his Business Investment, the

Defendant borrowed an amount of Rs.25,00,000/- from the Plaintiff Firm and executed a Promissory Note on 5.12.2019 in favorr of the Firm, undertaking to repay the same by him, on demand, with the interest thereon, at the rate of 24% per annum either to Firm or to its order. On the next date of execution of Promissory Note Dt:5.12.2019, the Defendant, on 6.12.2019, approached the Plaintiff Firm represented by its one of the

Partners and offered his above Original Sale Deed, Dt.18.9.2018, bearing

Doc. No.5405/2018 to the Plaintiff Firm towards Security of the above debt under the Promissory Note Dt:5-12-2019 and the Defendant also then expressed his intention to create an Equitable Mortgage in favor of the

Plaintiff Firm by deposit of above Original Title Deed styled as above

Registered Sale Deed, bearing Doc.No.5405/2018 with the Plaintiff Firm.

Thus, the Defendant voluntarily created an Equitable Mortgage by having deposited his Original Title Deed for the Plaint Schedule Property. Since the date of deposit of the above Title Deed, the Plaint Schedule Property is under Mortgage with the Plaintiff Firm without any demur from any quarter

d) Later, despite of repeated reminders and demands made by the

Plaintiff, the Defendant has been shelving to discharge Equitable Mortgage

Debt with the interest thereon to the Firm, on some pretext or other. Then, the Plaintiff Firm was constrained to have got issued the Registered Legal

Notice, on 27.6.2022 demanding the Defendant to discharge the same. The

Defendant is evading to receive the Legal Notice, on some pretext or other.

As there is no other alternative, this suit is filed on the foot of simple equitable mortgage for passing preliminary decree for sale of the mortgaged plaint schedule property and for recovery of mortgage amount from and out 4 O.S.46 of 2022 of sale proceeds thereon and in case, the sale proceeds thereof are not sufficient to discharge the mortgage debt, a personal decree against the defendant may be passed in the interest of justice.

3.Inspite of issuance of summons to the defendant by way of publication, he failed to appear before this court to prosecute his case by filing Written Statement, as such, he was set exparte.

4.In order to support the plaintiff’s case, one of the partners of the plaintiff firm himself examined as PW1 apart from examining the attestor and the scribe of suit promissory note as P.Ws.2 and 3 respectively and Exs.A1 to A5 are marked on behalf of the plaintiff.

5.Heard the learned counsel for the plaintiff.

6.Now the point for consideration is:

Whether the plaintiff is entitled to recover the suit claim from the defendant as prayed for?

7.POINT:

(i) The case of the plaintiff is that the Plaintiff being a Partnership

Firm registered on 3.2.2015 under the Name & Style of ‘M/s. R & N Sea

Foods', bearing Registration No.38 of 2015 represented by Managing

Partners, 1. Alapati Tulasi Venkata Ramana & 2. Lingam Nageswara Rao as per Section 58(1) of the Indian Partner Ship Act, 1932 by the Registrar of

Firms at Bhimavaram is carry on the business of Agents, Managing Agents

Selling and Domestic Agents of all types of Shrimp and Aqua Products and as per the Clause 19 of the Partnership Deed, any one of the Partners is authorized to Represent, Appear, Act, Sign and to depose evidence in all

Civil and Criminal Cases on behalf of the firm in all legal matters relating to

Firm to sue and be sued on behalf of the Firm. The defendant for his business investment borrowed Rs.25,00,000/- from the plaintiff firm by executing a promissory note on 5.12.2019 undertaking to repay the said 5 O.S.46 of 2022 amount with interest at 24% per annum either to the firm or its order and on the next day of execution of promissory note i.e., on 6.12.2019, the defendant offered his original sale deed document No.5405/2018 dated 18.9.2018 towards the security for the above debt borrowed under promissory note and expressed his intention to create an equitable mortgage in favour of the plaintiff firm and the defendant voluntarily created an equitable mortgage by depositing his title deed and later, despite of repeated reminders and demands made by the plaintiff, the defendant has been shelving to discharge equitable mortgage debt with interest therein to the firm and as such, the plaintiff firm got issued legal notice on 27.6.2022 to the defendant demanding him to discharge the debt due to the plaintiff firm, but the defendant is evading to receive the legal notice.

Hence, the plaintiff firm is constrained to file this suit.

(ii) To prove the same, one of the partners of the plaintiff firm examined as PW1 who filed his affidavit in lieu of examination-in-chief, wherein he reiterated the contents of plaint and as such, the examination- in-chief of PW1 is nothing but the true replica of plaint and he got marked

Exs.A1 to A5. On perusal of Exs.A1 to A5, it is seen that Ex.A1 is the original promissory note executed by the defendant in favour of the plaintiff

dated 5.12.2019 for Rs.25,00,000/-. Ex.A2 is the original sale deed

dt.18.9.2018 vide document No.5405/2018 deposited by the defendant with the plaintiff firm with an intention to create equitable mortgage towards security for the debt due under Ex.A1. Ex.A3 is office copy of legal notice dated 27.6.2022. Ex.A4 is the postal receipt dt.27.6.2022. Ex.A5 is notary attested Partnership firm deed dated 3.2.2015 of the plaintiff firm.

In addition to the evidence of P.W.1, the plaintiff firm also examined the attestor and scribe of Ex.A1 respectively as P.Ws.2 and 3 who supported 6 O.S.46 of 2022 the evidence of P.W.1 with regard to borrowing amount by the defendant under Ex.A1 and also deposit of title deed by the defendant with the plaintiff firm with an intention to create equitable mortgage. The defendant failed to repay the amount due under Ex.A1 promissory note even after repeated demands made by the plaintiff.

(iii) The learned counsel for the plaintiff further argued that in the absence of any proof of mode of payment in case of deposit of title deed by the defendant regarding the receipt of amount under suit promissory note is valid and taking into consideration about production of promissory note to show that the defendant received amount and in token, he executed the suit promissory note by depositing title deed. In such circumstances, the claim of the plaintiff shall be taken into consideration. On that, he relied on a decision reported in Yadika Venkatareddy Vs. Gujjula China Rami

Reddy [2012(4) ALT 705]. As per ratio, the Hon’ble Apex Court clearly discussed that when the promissory note produced by the plaintiff about consideration received by opposite party, it shall be considered as acknowledgment of the existence liability. In this case also, though the plaintiff did not produce about mode of payment, however, the promissory note covered under Ex.A1 is clearly established the contention of the plaintiff to show that the defendant received an amount of Rs.25,00,000/- from the plaintiff and in turn deposit of title deed by acknowledging his debt. Therefore, the facts mentioned in the decision are squarely applicable to the present facts of the case.

(iv) The learned counsel for the plaintiff further argued that whether deposit of title deed in case of simple mortgage, whether it is need for registration or not. Even without registering the document in case of mortgage by deposit of title deed (equitable mortgage), there is no need for 7 O.S.46 of 2022 registration. On that, he relied on a decision reported in Kamireddi

Atchuthamba Vs. State Bank of India [2019(4) AmLJ 175 (DB)]. As per ratio, the Hon’ble apex court clearly discussed as per Section 58(f) and

Section 59 of the Transfer of Property Act clearly discussed whether in case of equitable mortgage, is there any necessity for registered document to support the contention of the plaintiff. But, as per the ratio, it is clearly discussed that it does not require registration. Therefore, in this case though the plaintiff produced ample evidence in the absence of registered document relating to Memorandum of Deposit of Title Deed evidencing that there is an equitable mortgage between the plaintiff and the defendant at the time of taking consideration from the plaintiff. Therefore, non production of any registered document regarding the equitable mortgage is also maintainable against the defendant for recovery of amount due under promissory note which was executed by the defendant in favour of the plaintiff. Therefore, the facts mentioned in the decision are squarely applicable to the present facts of the case.

(v) But, in this case, the defendant was set ex parte and the evidence and the case of the plaintiff is unchallenged and unrebutted and the defendant did not choose to prosecute his case and hence, the evidence of

PWs1 to 3 is intact and unchallenged and the plaintiff clearly proved his case by examining himself as P.W.1 and also examining the attestor and the scribe of Ex.A1 as P.Ws.2 and 3 respectively. Hence, the evidence of PWs1 to 3 is intact and unchallenged and the plaintiff clearly proved his case.

Accordingly, this point is answered in favour of the plaintiff.

8. In the result, the suit is preliminary decreed with costs in favour of the plaintiff, directing the defendant to pay a sum of

Rs.40,41,667/- (Rupees Forty Lakhs Forty One Thousand Six Hundred and 8 O.S.46 of 2022

Sixty Seven only) along with subsequent interest at the rate of 12% p.a.

from the date of filing of the suit, till the date of decree on principal amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) thereafter at 6% p.a. till realization. Time for redemption is six months. In case the amount realized from mortgaged property is not sufficient, the plaintiff is at liberty to proceed against the defendant personally.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court, on this the 18th day of April,2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

Appendix of Evidence

Witnesses Examined

FOR PLAINTIFF :

PW1 : A. Tulasi Venkata Ramana PW2 : B. Veera Venkata Satyanarayana Murthy @ Pedababu PW3 : Y. Anil Ratnakumar

FOR DEFENDANT : NIL (Exparte)

EXHIBITS MARKED

FOR PLAINTIFF :

Ex.A1/5.12.2019 : Promissory note executed by the defendant in favour of the plaintiff for Rs.25,00,000/-. Ex.A2/–: Regd. Sale Deed Doc.No.5405/2018 deposited by the defendant with the plaintiff firm with an intention to create equitable mortgage towards the security for the debt due under promissory note dt.5.12.2019. Ex.A3/27.6.2022 : Office copy of legal notice got issued to defendant. Ex.A4/27.6.2022 : Postal receipt. Ex.A5/3.2.2015: Notary Attested copy of Partnership Firm of the plaintiff firm.

FOR DEFENDANT: Nil (Exparte) Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Wednesday, this the 18th day of April, 2023.

O.S.No.46 of 2022

Between:-

M/s. R & N Sea Foods, rep. by one of the Managing Partners, Alapati Tulasi Venkata Ramana, s/o. Somaiah, Hindu, 51 year, Flat No. 103, Kranthi Residency, Bhimavaram,

West Godavari District, Bhimavarsam JCJC. ... Plaintiff.

And

Sainedi Srikanth, s/o. Srinivasa Rao @ Venkateswara Rao, Hindu, 50 Years, Builder, D.No. 3-16-195, Flat No. 103, Indra Prastha Udhisara Apartments, Sri Vidya Colony Venkat Nager, Kakinada City, Kakinada Urban Mandal, East Godavari District, presently changed as Kakinada District,

Kakinada JCJC. ... Defendant.

The suit is filed by the plaintiff against the defendant for recovery of Rs.40,41,667/- being the sum of principal and interest due on a mortgage deed

dated 5.12.2019 executed by the defendant in favour of the plaintiff for

Rs.25,00,000/- agreeing to repay the same with interest at the rate of 24% per annum and for costs.

Plaint presented on : 01.07.2022Plaint filed on : 25.07.2022

Cause of action for the suit arose on 5.12.2019, when the defendant borrowed amount of Rs.25,00,000/- from the plaintiff and executed suit promissory note in favour of the plaintiff firm, on 6.12.2019, when the defendant deposited his title deed with the plaintiff with a view to create equitable mortgage in favour of the plaintiff firm, later, when the Managing Partners of the plaintiff firm demanded the defendant to discharge the mortgage debt with interest thereon, when the defendant failed to pay the same, on 27.6.2022, when the plaintiff got issued legal notice to the defendant demanding him to discharge the same, when the defendant evaded to receive the said notice and kept quiet, at Bhimavaram of West Godavari District, where the suit promissory note was executed and where the original title deed of the plaintiff was deposited with the plaintiff firm towards security for the debt and at Tadikonda, where the mortgaged schedule property situated is within the jurisdiction of this court.

Particulars of valuation :

Amount under Equitable mortgage on suit promissory note Rs.25,00,000/- Interest thereon at 24% p.a. from 5.12.2019 to 30.06.2022 Rs.15,41,667/- ----------------------- Total Rs.40,41,667/- ----------------------

On which a Court fee of Rs.42,926/- is paid U/s.31 of APCF & SV Act, 1956.

Value of the suit for the purpose of jurisdiction is Rs.40,41,667/-.

This suit came before me on 13.04.2023 for final hearing in the presence of Sri V. Satyanarayana Murthy, Sri K. Narasimha Rao, Advocates for the plaintiff and of the defendant remained exparte and upon hearing the counsel for the plaintiff, perusing the material on record and having stood over for consideration till this day, this Court doth order and decree as follows:-

It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this 30th day of June, 2022 is the sum of Rs.40,41,667/- i.e., Rs.25,00,000/- principal and Rs.15,41,667/- interest on the said principal amount and costs of notice, the sum of Rs.-- for costs, charges and expenses [other than the costs of the suit] properly incurred by the plaintiff in respect of the mortgage security, together with interest thereon, and the sum of Rs.42,928/- for the institution costs of the suit awarded to the plaintiff, making in all the sum of Rs.40,84,595/-.

2] i] And it is hereby ordered, declared and decreed as follows:-

That the defendant do pay into court on or before the 17th day of October, 2023 or any later date upto which time for payment may be extended by court the said sum of Rs.40,84,595/- along with subsequent interest at the rate of 12% per annum from the date of suit till the date of decree on principal amount of Rs.25,00,000/- and thereafter at 6% per annum till realization.

ii) that in case, the amount realized from the mortgage property is not sufficient, the plaintiff be at liberty to proceed against the defendant personally;

III]That on such payment and on payment thereafter before such date as the court may fix, or such amount as the court may adjudge in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of order XXXIBV of First schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be handed over to the defendants or to such person he appoints and the plaintiff shall if so required re-convey or re-transfer the said property free from the said mortgage and clear off free from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so, required deliver upto the defendants quiet and peaceable possession of the said property.

IV]And it is further ordered and decreed that in default of payment as aforesaid the plaintiff may apply to the court for a final decree for the sale of the mortgaged property and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold and for purpose of such sale, the plaintiff shall produce before the court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

V] And it is hereby further ordered and decreed that the money realized by such sale shall be paid into court and shall be duly applied for after deduction the free from of the expenses of the sale] in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10 together with such subsequent interest as may be payable under rule 11 of order XXXIV of the First schedule to the Code of Civil Procedure, 1908, and that the balance, if any shall be paid to the defendants or other person entitled to receive the same.

VI]And it is hereby further ordered and decreed that if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid the plaintiff shall not be at liberty [where such remedy is open to him under the terms of the mortgage and is not barred by law for the time being in force] to apply for a personal decree against the defendants for the amount of the balance and that the parties are at liberty to apply to the court from time to time as they may have occasion and on such application or otherwise the court may give such directions as it thinks fit.

Plaint schedule is attached hereto.

Given under my hand and seal of the court this the 18th day April, 2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

TABLE OF COSTS

Description For Plaintiff: For Defendant: Rs. Ps.Rs. Ps.

1Stamp on Vakalat 2-00Exparte 2Plaint fees42926-00– 4Process– – 5Pleaders Fees (Sr)– – 6Pleaders Fees (Jr)– – 7Typing Charges– – 8Writing Charges– –

Total 42928-00 Nil

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

1 O.S.19 of 2021

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Thursday, this the 20th day of April, 2023.

O.S.No.19 of 2021

Between:-

Pamulapati Vijayalakshmi, w/o. Dr. Pamulapati Venkata Seshaiah, r/o.D.No.60-28-4, 1st Floor, Sai Sadan, Gayatri Nagar, Vijayawada – 8, rep. by her General Power of Attorney holder Kare Naresh, s/o. Babu Rao, 40 years, r/o. Kanuru, Vijayawada Rural,

Krishna District, Vijayawada JCJC. ... Plaintiff.

And

M/s.Mahatru Media Solutions Private Limited, rep. by its Director Gadiraju Rama Raju, s/o. Not known, aged 44 years, r/o.S-10, 2nd Floor, Srinilayam Apartments, Besides ICICI Bank, Ameerpet, Hyderabad-73, Telangana State,

Hyderabad City Civil Courts Jurisdiction.... Defendant.

This suit came before me on 13.04.2023 for final hearing in the presence of Sri S.P.R. Kumar, Advocate for the plaintiff and the defendant remained exparte and upon hearing the counsel for the plaintiff, perusing the material on record and having stood over for consideration till this day, the Court delivered the following:-

:: J U D G M E N T ::

The suit is filed by the plaintiff against the defendant for recovery of

Rs.21,45,123/- along with subsequent interest at 24% p.a. from the date of suit till its realization on suit amount and for costs.

2.The brief averments of the plaint is as follows :

a) The plaintiff having immovable property situated in RS No.199/1B,

Flat No.103, NRT Tech Park known as Kosanam Roy Heights, Mangalagiri,

Guntur District, Andhra Pradesh i.e., plaint schedule property and the plaintiff is the absolute owner of the plaint schedule property.

b) On invitation of the plaintiff to offer to let out her property i.e., plaint schedule property admeasuring 1139 square feet on lease basis for 2 O.S.19 of 2021 utilization of office/commercial purpose, the defendant being represented by the Director approached the plaintiff and shown interest and expressed his willingness to obtain said premises on lease on monthly rental basis. After detailed discussions, both the plaintiff and the defendant came to common understanding and agreed and accepted to execute a Lease Agreement/Lease

Deed and reduced the same in writing on 1.4.2018 on mutually agreed accepted terms and conditions thereon and made their respective signatures with their free will and consent. It is an unregistered lease deed. The lease period was commenced from 1.4.2018 and it will be expired on 31.3.2023.

The defendant took the schedule property on 1.5.2018. As per the lease agreement/lease deed as a lessee, the defendant is liable to pay Rs.50/- per square feet per month rent excluding GST on the plaint schedule property i.e., 1139 square yards to the plaintiff. As per the said condition, the defendant is liable to pay monthly rent of Rs.56,590/- excluding the GST. As per condition of lease agreement, at the time of entering/occupation into the schedule premises, the defendant has to pay an advance rent of three months i.e., 3 x Rs.56,590/- = Rs.1,70,850/-.

c) The defendant taken possession of plaint schedule property from 1.5.2018 and under his occupation till 31.8.2020 and during the said period, the defendant paid monthly rent for May, 2018, June, 2018, July, 2018 and for the month of August, 2018, September, 2018 and October, 2018 was adjusted from the advance rent paid by the defendant at the time of taking possession of the plaint schedule property. From the month of November, 2018 onwards, the defendant neither paid the rent to the plaintiff nor vacated the plaint schedule premises.

d) The plaintiff vexed with the attitude of the defendant, finally he got issued legal notice dated 6.3.2020 demanding the defendant to pay entire due of rent amount and GST of Rs.10,75,216/- as on 28th February, 2020 which 3 O.S.19 of 2021 was pending by the defendant on the plaint schedule property i.e., Flat

No.103, NRT Tech Park known as Kosanam Roy Heights, Mangalagiri within 154 days after receipt of the notice. The said notice was returned on134.3.2020 to the plaintiff counsel with an endorsement ‘not known’. The defendant intentionally evading the notice with a malafide intention to harass the plaintiff one way or other to avoid the payment.

e) The defendant postponed the payment of rent under the lease agreement/lease deed relating to the plaint schedule property from time to time. Surprisingly, the defendant without intimation to the plaintiff vacated the plaint schedule property on 31.8.2020. After two days, the plaintiff came to know the said fact through the security guard. Then, the plaintiff went to plaint schedule property and observed the same. The plaintiff demanded the defendant for balance of rent which period was occupied/utilized by the defendant i.e., from 1.11.2018 to 31.8.2020 i.e., 22 months rent at

Rs.67,201/- i.e., Rent Rs.56,590/- and Rs.10,251/- GST). The defendant is liable to pay the balance rent after adjusting the advance rent held with the plaintiff i.e., Rs.1,70,850/- for the period from August, 2018 to October, 2018.

The defendant defaulted in payment of rent for the period from 1.11.2018 to 31.8.2020 i.e., 22 months x Rs.67,201/-=Rs.14,78,422/-. Hence, the suit.

3.Inspite of issuance of summons to the defendant by way of publication, the defendant failed to appear before this court to prosecute its case by filing Written Statement, as such, he was set exparte.

4.In order to support the plaintiff’s case, the Power of Attorney holder of the plaintiff examined as PW1 and Exs.A1 to A4 are marked on his behalf.

5.Heard the learned counsel for the plaintiff.

6.Now the point for consideration is:

Whether the plaintiff is entitled to recover the suit claim from the defendant?

4 O.S.19 of 2021

7.POINT:

(i) The case of the plaintiff is that when the plaintiff offered to let out the plaint schedule property admeasuring 1139 square yards, the defendant being represented by the Director approached the plaintiff and after discussions, both the plaintiff and the defendant came to a common understanding and agreed and accepted to execute a Lease Agreement/Lease

Deed and reduced the same into writing on 1.4.2018 and that the defendant took the plaint schedule property on lease for the period from 1.4.2018 to 31.3.2023 and as per the agreement, the defendant has to pay lease of

Rs.50/- per square feet per month excluding GST which comes to

Rs.56,590/- excluding GST and the defendant has to pay advance rent of three months i.e., 3 x Rs.56,590/- = Rs.1,70,850/- at the time of entering/occupation into the schedule premises. The defendant took possession of the plaint schedule property on 1.5.2018 and under his occupation till 31.8.2020 and during the said period, the defendant paid monthly rent for May, 2018, June, 2018, July, 2018 and for the month of

August, 2018, September, 2018 and October, 2018 was adjusted from the advance rent paid by the defendant at the time of taking possession of the plaint schedule property and from the month of November, 2018 onwards, the defendant neither paid the rent to the plaintiff nor vacated the plaint schedule premises. As such, the plaintiff got issued legal notice dated 6.3.2020 demanding the defendant to pay entire due of rent amount and GST of

Rs.10,75,216/- as on 28th February, 2020 within 15 days after receipt of the notice, but the said notice was returned on 14.3.2020 to the plaintiff counsel with an endorsement ‘not known’ and that the defendant intentionally evading to receive the notice with a malafide intention to harass the plaintiff one way or other to avoid the payment. Hence, the plaintiff constrained to file the suit for recovery of rent amount with interest.

5 O.S.19 of 2021

(ii) To prove the same, the Power of Attorney holder of the plaintiff was examined as PW1 who filed his affidavit in lieu of examination-in-chief, wherein he reiterated the contents of plaint and as such, the examination-in- chief of PW1 is nothing but the true replica of plaint and he got marked

Ex.A1. On perusal of Ex.A1, it is seen that Ex.A1 is the original unregistered lease deed dated 1.4.2018 executed between the plaintiff and the defendant.

As per contention of the plaintiff, as per the lease agreement dated 1.4.2018, the defendant took possession of the plaint schedule property on 1.5.2018 and it was under his occupation till 31.8.2020 and during the said period, the defendant paid monthly rent for May, 2018, June, 2018, July, 2018 and for the month of August, 2018, September, 2018 and October, 2018 was adjusted from the advance rent paid by the defendant at the time of taking possession of the plaint schedule property and the defendant has to pay rent from the month of November, 2018 onwards i.e., from 1.11.2018 to 31.8.2020 i.e., 22 months rent at Rs.67,201/- i.e., Rent Rs.56,590/- and Rs.10,251/-

GST i.e., 22 months x Rs.67,201/- = Rs.14,78,422/- along with interest.

But, the defendant failed to pay the amount due under Ex.A1 lease deed inspite of demands made by the plaintiff personally and also through legal notice.

(iii) But, in this case, the defendant was set ex parte and the evidence and the case of the plaintiff is unchallenged and unrebutted and the defendant did not choose to prosecute his case and hence, the evidence of

PW1 is intact and unchallenged and the plaintiff clearly proved his case by examining himself as P.W.1. Hence, the evidence of PW1 is intact and unchallenged and the plaintiff clearly proved his case. Accordingly, this point is answered in favour of the plaintiff.

8. In the result, the suit is decreed with costs in favour of the plaintiff, directing the defendant to pay a sum of Rs.21,45,123/- (Rupees 6 O.S.19 of 2021

Twenty One Lakhs Forty Five Thousand One Hundred and Twenty Three only) along with subsequent interest at the rate of 12% p.a. from the date of filing of the suit, till the date of decree on principal amount of Rs.12,52,900/- (Rupees Twelve Lakhs Fifty Two Thousand and Nine Hundred only) thereafter at 6% p.a. till realization.

Typed to my dictation by the Stenographer and corrected and

pronounced by me in the open Court, on this the 20th day of April, 2023.

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

Appendix of Evidence

Witnesses Examined

FOR THE PLAINTIFF :

PW1 : A. Siva Suresh Babu

FOR THE DEFENDANT : None. (Exparte)

EXHIBITS MARKED

FOR THE PLAINTIFF :

Ex.A1/1.4.2018: Unregistered Lease Deed. Ex.A2/14.3.2023 : Notarized GPA in favour of P.W.1. Ex.A3/6.3.2020: Office copy of legal notice with postal receipt. Ex.A4/14.5.2020 : Receipt copy of Property Tax paid on plaint schedule property.

FOR THE DEFENDANT: Nil

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

IN THE COURT OF THE SENIOR CIVIL JUDGE, MANGALAGIRI.

Present: Sri D.Seshayya,

Senior Civil Judge, Mangalagiri.

Thursday, this the 20th day of April, 2023.

O.S.No.19 of 2021

Between:-

Pamulapati Vijayalakshmi, w/o. Dr. Pamulapati Venkata Seshaiah, r/o.D.No.60-28-4, 1st Floor, Sai Sadan, Gayatri Nagar, Vijayawada – 8, rep. by her General Power of Attorney holder Kare Naresh, s/o. Babu Rao, 40 years, r/o. Kanuru, Vijayawada Rural,

Krishna District, Vijayawada JCJC. ... Plaintiff.

And

M/s.Mahatru Media Solutions Private Limited, rep. by its Director Gadiraju Rama Raju, s/o. Not known, aged 44 years, r/o.S-10, 2nd Floor, Srinilayam Apartments, Besides ICICI Bank, Ameerpet, Hyderabad-73, Telangana State,

Hyderabad City Civil Courts Jurisdiction. ... Defendant.

The suit is filed by the plaintiff against the defendant for recovery of Rs.21,45,123/- along with subsequent interest at 24% p.a. from the date of suit till its realization on suit amount and for costs.

Plaint presented on : 30.12.2020Plaint filed on : 01.03.2021

Cause of action for the suit arose on 1.4.2018, when the plaintiff and the defendant entered into an unregistered lease agreement/lease deed, on 1.5.2018, when the defendant occupied the plaint schedule property and paid monthly rent to the plaintiff, on 1.11.2018, when the defendant committed default to pay the monthly rent to the plaintiff, on 31.8.2020, when the defendant vacated the plaint schedule property without intimation to the plaintiff, on 2.9.2020, when the plaintiff came to know the same, on 6.3.2020, when the plaintiff got issued a legal notice to the defendant demanding balance of rent as on February, 2020, on 14.3.2020, when the said legal notice was returned with an endorsement ‘not known’, at Mangalagiri, where the plaint schedule property situated and where the transaction took place are within the jurisdiction of this Court.

Particulars of valuation :

Principal amount as on 30.11.2020 monthly rent

at Rs.56,590/- x 22 monthsRs.12,52,900/-

Subsequent interest at 24% p.a. from 1.12.2018 to 31.12.2020 on principal rent amountRs. 6,26,107/-

Pending GST from 1.12.2018 to 31.8.2020 payable by the defendantRs. 2,25,522/-

GST at 18% on balance rent Rs. 40,594/- ----------------- TotalRs.21,45,123/-

On which a Court fee of Rs.24,026/- is herewith paid U/s.20 of APCF & SV Act, 1956.

Value of the suit for the purpose of jurisdiction is Rs.21,45,123/-.

This suit came before me on 13.04.2023 for final hearing in the presence of Sri S.P.R. Kumar, Advocate for the plaintiff and the defendant remained exparte and upon hearing the counsel for the plaintiff, perusing the material on record and having stood over for consideration till this day, this Court doth order and decree as follows:-

i)That the suit be and the same is hereby decreed;

(ii)that the defendant be directed to pay a sum of Rs.21,45,123/- (Rupees Twenty One Lakhs Forty Five Thousand One Hundred and Twenty Three only) along with subsequent interest at the rate of 12% p.a. from the date of filing of the suit, till the date of decree on

principal amount of Rs.12,52,900/- (Rupees Twelve Lakhs Fifty Two

Thousand and Nine Hundred only) thereafter at 6% p.a. till realization;

(iii) that the defendant do also pay to the plaintiff a sum of Rs.54355/- towards costs of the suit and do bear its own costs of Rs.Nil (Exparte).

Given under my hand and the seal of the Court, this the 20th day of April, 2023. Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.

TABLE OF COSTS

Description For Plaintiff: For Defendant: Rs. Ps.Rs. Ps.

1Stamp on Vakalat2-00– 2 Plaint fees24026-00Exparte 4Process182-00– 5Advocate Fee (Sr.)25000-00– 6Publication charges 5145-00– 7Typing Charges– – 8Writing Charges– –

Total Rs. 54355-00 Nil

Sd./- D. Seshayya,

Senior Civil Judge,

Mangalagiri.