1 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
APEG010008552010
IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE
EAST GODAVARI DISTRICT, RAJAMAHENDRAVARAM
Present: D. Vijay Goutam, V Additional District Judge, Rajamahendravaram
Thursday, this the 10th day of April, 2025
O.S.No.139/2012
AND
O.S.15/2011
BETWEEN:
Golla Venkata Subbarao, S/o Sri Golla Subbayya, Retired Engineer, 77 aged, Uppalavari Street, Rajahmundry.
…..Plaintiff
AND 1Golla Venkata Koteswara Rao, S/o Late Subbayya, 68 years, D.No.35- 3-7, Uppalavari Street, Opp Ratna Palace Lodge, Main road, Rajahmundry.
2Golla Venkateswara Rao, S/o late Subbayya, 65 years, D.No.35-3-7, Uppalavari Street, Opp Ratna Palace Lodge, Main road, Rajahmundry.
3Golla Venkata Bala Subrahmanyam, S/o late Subbayya, 57 years, D.No.3-230, Valasapakala, Gangarjunagar, near Sarpavaram Junction, Kakinada rural, East Godavari District.
4Golla Venkata Satyanarayana Murthy, S/o late Subbayya, 55 years, Deputy Manager, Vigilance Wing, Andhra Bank, Head Office, Saifabad, Hyderabad.
2 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist 5Golla Venkata Satyavathi, W/o G.V.Koteswara Rao, 64 years, D.No.35- 3-7, Uppalavari Street, Opp Ratna Palace Lodge, Main road, Rajahmundry.
6Golla Venkata Naga Lakshmi, D/o Venkata Koteswara Rao, 36 years, D.No.35-3-7, Uppalavari Street, Opp Ratna Palace Lodge, Main road, Rajahmundry.
7Innamuri Venkata Padmavathi, W/o Venkata Subba Rao, 43 years, Husband’s protection, D.No.15-6-37, Nillavari Street, Bhimavaram, West Godavari District.
8G.Venkata Madhavi, W/o Kondaveeti Venkata Kanaka Durga Rao, 32 years, 1st floor, No.9, 1st cross, 8th Main, G.M.Palya Extension, near Ganesh Temple and petrol bunk, Bangalore. Defendants 1 & 6 to 8 are recognized as LRs of deceased 5th defendant as per orders in I.A.No.837/2022 dt.27.10.2022.
9Kota Subba Ratnam, W/o Ram Prasad, 54 years, House wife, R/o D.No.36-5-3, Majetivari Street, Temple street, Gold Market centre, Kakinada Defendant No.9 is added as per orders in I.A.361/2021 dt.13.07.2022 10Golla Venkata Durga Prasad, S/o G.V. Subba Rao, 45 years, Uppalavari Street, Rajahmundry.
11Golla Venkata Ranganadh, S/o G.V. Subba Rao, 40 years, Uppalavari street, Rajahmundry.
12Innamuri Venkata Subba Rao, 60 years, D.No.15-6-37, Nillavari Street, Bhimavaram. (Defendants 10 to 12 are added as per orders in I.A.90/2023 dt.10.08.2023) …. Defendants
Both the suits in O.S.139/2012 and O.S.15/2011 came up for final hearing before me on 24.03.2025 in the presence of Sri G.S.S.Murali Mohan, learned Advocate for plaintiff. Sri P.V.Ramachandra Rao, learned advocate for defendants No.1, 6 to 8, 10 to 12. Sri D.V.K.Ramesh, learned advocate for 3 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist defendants No.3 and 4. Defendants No.2 and 5 died. Defendant No.9 having been set ex parte and matter having stood over for consideration till this day, this Court delivered the following
C O M M O N J U D G M E N T
O.S.139/2012
1.The suit in O.S.139/2012 is filed for recovery of a sum of Rs.2,57,060/- together with interest at 24% per annum from defendants No.1, 3 to 9 jointly and severally and also against the share of defendant No.1 in respect of property bearing D.No.8-24-73, D.No.35-3-7 in the hands of defendants No.5 to 8 on the basis of Khararunama dt.21.07.2005.
2.The facts in brief are Golla Subbayya has five sons. They are Golla
Venkata Subba Rao (plaintiff), Golla Venkata Koteswara Rao (defendant
No.1), Golla Venkateswara Rao (defendant No.2), Golla Venkata Bala
Subrahmanyam (defendant No.3) and Golla Venkata Satyanarayana Murthy (defendant No.4). The defendant No.5 is the wife of defendant No.1 and defendants No. 6 to 8 are the daughters of defendant No.1.
3.Originally plaintiff filed suit in O.S.442/2008 on the file of learned I
Additional Senior Civil Judge’s Court, Rajamahendravaram. By order
dt.26.07.2012 passed in T.O.P.834/2011 by Hon’ble Principal District Judge,
East Godavari District, the suit was transferred to the Hon’ble District Court,
Rajamahendravaram in the year 2012 and renumbered as O.S.139/2012.
4.The suit in O.S.139/2012 (old O.S.442/2008) is filed stating that non- residential building bearing D.No.8-24-73, Main road, Rajahmundry and house bearing D.No.35-3-7, Uppalavari Street, Rajamundry are the self-acquired properties of Golla Subbayya. It is stated that Golla Subbayya, during his life time, executed a registered Will on 16.01.1983 bequeathing both properties in 4 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist favour of plaintiff and defendants No.1 to 4 and also children of plaintiff and children of defendant No.2. Golla Subbayya died on 29.05.1984 and the Will executed by him came into force.
5.According to plaintiff, after the Will came into force, it was decided between plaintiff, defendants No.1 to 4, minor sons of plaintiff, minor daughter of defendant No.2, who were duly represented by plaintiff and defendant No.2, that the properties belonging to late Golla Subbayya should be partitioned into 5 equal shares and all the five sons of Golla Subbayya should be allotted to 1/5th share in both the buildings. The reasons for coming to such a decision is said to be unjust and unequal bequests made by Golla Subbayya in his Will.
The plaintiff stated that the family arrangement was reduced to writing on 11.06.1984 and was signed by all the parties i.e. plaintiff and defendants No.1 to 4.
6.According to plaintiff, there were disputes in respect of the property bearing D.No.8-24-73, Main road, Rajahmundry with its tenants Batchu China
Koteswara Rao, proprietor of Veeranjaneya Oil mills a tenant of ground floor and upstairs, S.Sri Rama Murthy of Modern Type Institute, who was 1st floor tenant and Smt Agarwal Parvathi Bhai, who had set up competing title and trespassed and occupied northern portion of the ground floor. The plaintiff stated that other property bearing D.No.35-3-7 in Uppalavari street,
Rajahmundry could not be partitioned as plaintiff and defendants No.3 and 4 were employed at different places.
7.According to the plaintiff, he initiated legal proceedings for recovery of possession of respective portions in the occupation of Batchu China
Koteswara Rao, B.S.Murthy and Agarwal Parvathi Bhai. The defendants No.1 to 4 and other family members were aware of this fact. The plaintiff stated that he spent monies, energy and pursued the cases at the stage of trial, appeal, 5 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist revision before various judicial authorities leading to culmination of legal proceedings in September, 2005 when vacant possession of the entire building was obtained. The plaintiff stated that in the month of March and April 2005, there was discussion between plaintiff and defendants about partition of both properties and also for reimbursement of expenses incurred in pursuing legal remedies by plaintiff and defendants No.1 and 2 for securing vacant possession of building bearing D.No.8-24-73, Main Road, Rajahmundry. The plaintiff stated that he and his brothers thought that both properties are not amenable for partition.
8.According to plaintiff, the value of the property bearing D.No.35-3-7,
Uppalavari street, Rajahmundry in an extent of 225 square yards was fixed @
Rs.5000/- per sq.yard and entire property was decided to be sold to him for total consideration of Rs.11,25,000/-. After deducting 1/5th share of the plaintiff, it was agreed that balance extent of 4/5th in the said property was to be sold to the plaintiff for a consideration of Rs.9,00,000/- and it was further agreed that the said sum of Rs.9,00,000/- shall be adjusted from out of share of plaintiff in the sale consideration of plaintiff in the main road building bearing D.No.8-24-
73. The plaintiff stated that an agreement of sale was executed between plaintiff and defendants No.1 to 4 on 23.04.2005 incorporating the above terms as well as other terms.
9.According to plaintiff, he had spent Rs.2,45,700/- towards legal expenses over a period of span of 20 years and that defendant No.1 had spent Rs.28,500/- and defendant No.2 had spent Rs.69,000/- by that time. It is stated that Balanagu Ratnaji Rao, was still in occupation in first floor of main road building bearing D.No.8-24-73 and that defendants No.1 to 4 authorized the plaintiff to spend a further amount up to Rs.3,00,000/- in order to get the same vacated.
6 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
10.According to plaintiff, it was mutually agreed that the reimbursement shall be out of sale consideration of main road building bearing D.No.8-24-73 proposed to be sold and sale consideration shall be divided into 6 equal shares and out of such shares, two shares shall be given to plaintiff for rendering his services in pursuing legal remedies and that from out of balance sale consideration of 4/6th share, the plaintiff shall be reimbursed the expenses of Rs.2,45,700/- already spent by him and further expenses to be met by him for evicting Balanagu Ratnaji Rao. The plaintiff stated that a Khararunama was executed by defendants No.1 to 4 in his favour on 21.07.2005 incorporating the above terms. The plaintiff stated that he had spent Rs.1,00,000/- apart from spending his time and efforts for securing vacant possession of the upstairs portion from Balanagu Ratnaji Rao and he had paid Rs.1,00,000/- to
Balanagu Ratnaji Rao in July, 2005 for vacating the property.
11.The plaintiff alleged that the defendants did not act in accordance with the terms of agreement of sale and Khararunama despite his best efforts and a notice was issued to the defendants and he also filed O.S.736/2007 on the file learned I Additional Senior Civil Judge, Rajahmundry for specific performance of agreement of sale. It is stated that documents No.6235/2007 dt.08.06.2007 and 6039/2007 d.04.06.2007 were executed by defendant No.1 in favour of his wife (defendant No.5) and three daughters (defendants No.6 to 8). The plaintiff alleged that defendant No.1 and his wife borrowed money for performing the marriage of their daughter and failure to pay the same led to filing of suits in O.S.36/2008 and O.S.88/2008 on the file of Principal Junior
Civil Judge’s Court, Rajamahendravaram against them for recovery of amount.
The plaintiff alleged that the gift settlement deeds were executed in order to avoid payment of promissory note debts as well as performance of terms and conditions of agreement of sale and Khararunama.
7 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
12.The plaintiff stated that defendants No.1 to 4 are jointly and severally liable to pay Rs.2,57,060/-. The plaintiff stated that defendants No.5 to 8, who are wife and children of defendant No.1 are universal donees having received entire properties from the defendant No.1 are liable to discharge the amount due to plaintiff by defendant No.1. The plaintiff stated that he also right to file a suit in resepct of building bearing D.No.8-24-73, Main Road, Rajahmundry to be sold by resorting to legal proceedings. The plaintiff filed this suit for the relief stated above.
13.The defendant No.1 filed his written statement denying the plaint averments and stated that the suit in O.S.139/2012 is barred by Order 2, Rule 2 CPC and is liable to be dismissed as plaintiff had filed O.S.736/2007. The defendant No.1 denied executing Khararunama dt.21.07.2005 and also the agreement of sale dt.23.04.2005. The defendant denied that Balanagu Ratnaji
Rao vacated portion of the building bearing D.No.8-24-73 after receiving
Rs.1,00,00/- from plaintiff and alleged that the plaintiff manipulated documents in collusion with Balanagu Ratnaji Rao. The defendant No.1 stated that
Khararunama for reimbursement never existed and hence it cannot be said that he violated the terms of Khararunama. The defendant No.1 stated that gift deeds executed by him on 08.06.2007 and 04.06.2007 are true, valid and binding. The defendant No.1 stated that even prior to filing of the suit in
O.S.736/2007 he categorically informed the plaintiff that both the agreements
set up by him are invalid, fabricated and concocted. The defendant No.1 sought for dismissal of the suit.
14.The defendants No.5 to 8 adopted the written statement filed by defendant No.1.
15.The defendant No.3 filed his written statement denying the plaint averments and stated that plaintiff by taking advantage of the absence of 8 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist defendants No.3 and 4 at Rajahmundry on account of their employment, tried to squat joint family property without cooperating for partition of the property.
The defendants No.3 and 4 alleged that the document dt.11.06.1984 does not confer any right in the property but only speaks about management of the property and there was no discussion about partition of the properties covered under the Will. The defendants No.3 and 4 denied that property was agreed to be partitioned into 5 equal shares. The defendants No.3 and 4 stated that the plaintiff was not given any share in the residential building bearing D.No.35-3- 7 and he was only given 1/3rd share in non-residential building bearing D.No.8- 24-73. The defendants No.3 and 4 stated that plaintiff himself misinterpreted the agreement dt.11.06.1984 and the said agreement is an unregistered document and requires registration as there are recitals in respect of shares in immovable properties. The defendants No.3 and 4 stated that during their visits, their enquires with their elder brother (defendant No.1) revealed that defendant No.1 was actively pursuing the court cases and that they used to contribute expenses, if any. The defendants No.3 and 4 stated that the name of plaintiff does not appear in any of the court proceedings and it cannot be assumed that he actively looked after the court matters and incurred expenses towards pursuing litigation.
16.The defendants No.3 and 4 denied that agreement dt.23.04.2005 was executed in favour of plaintiff and stated that plaintiff was not granted any share in the house property bearing D.No.35-3-7 under the Will executed by their father and hence plaintiff cannot claim 1/5th share in the property. The defendants No.3 and 4 stated that they never came to understanding about reimbursement of amount of Rs.2,45,700/-, Rs.28,500/-, Rs.69,000/- spent respectively by plaintiff and defendants No.1 and 2 towards pursuing legal remedies out of sale consideration of main road building bearing D.No.8-24-73 and also agreed to give one additional share to the plaintiff in the main road 9 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist building in recognition of services rendered by him. The defendants No.3 and 4 denied that the sale consideration shall be apportioned in the ratio of 2:4 between plaintiff and defendants 1 to 4. The defendants No.3 and 4 also denied that the properties are not amenable for partition and also that the plaintiff had spent an amount of Rs.2,45,700/- as on 21.07.2005.
17.The defendants No.3 and 4 stated that they never authorised the plaintiff to spend Rs.3,00,000/- for getting the upstair portion of the main road building vacated. The defendants No.3 and 4 stated that they did not execute
Khararunama dt.21.07.2005. The defendants No.3 and 4 stated that plaintiff did not spend Rs.1,00,000/- for securing possession of the upstair portion of the building and notice dt.15.12.2007 is a created one. The defendants alleged that Khararunama dt.21.07.2005 is not true and stated that suit for specific performance is barred by limitation.
18.According to defendants No.3 and 4, the defendants No.1 and 2 are residing in the same building in the first floor and the plaintiff requested both of them to live in the residential house for some time as he was getting transferred to Rajahmundry. The defendants No.3 and 4 stated that as they are not in physical enjoyment of the property bequeathed in their favour on account of their employment and they permitted the plaintiff to occupy their portion of the house, basing on the representation of the plaintiff that he will pay Rs.500/- per month to each defendants No.3 and 4 as rent. The defendants No.3 and 4 stated that plaintiff paid monthly rent till October, 1997 and stated any amount spent by the plaintiff towards legal expenses was deducted from the rent payable to both defendants No.3 and 4. The defendants No.3 and 4 stated that plaintiff obtained their signature on blank stamp papers on one pretext or the other by making false representations on the ground that they are required for legal proceedings. The defendants No.3 10 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist and 4 alleged that the plaintiff pressed those documents into service. The defendants No.3 and 4 stated that the calculations made by plaintiff are not correct and stated that plaintiff is not entitled to any decree. The defendants sought for dismissal of the suit.
19.Based on the rival pleadings of the both parties, the following issues were settled for trial in O.S.442/2008 (new O.S.139/2012) on 01.04.2009 1 Whether the plaintiff is entitled to the suit amount as prayed for?
2 To what relief?
O.S.15/2011
20.The suit in O.S.15/2011 is filed for specific performance of agreement dt.21.07.2005 directing defendants No.1 , 3 to 9 to join the plaintiff in execution and registration of sale deed in favour of prospective purchasers within time to be stipulated and apportionment of sale consideration in the ratio of 2:4 between plaintiff on one hand and defendants No.1, 3 to 9 on the other hand or in the alternative for partition of plaint schedule property into 6 equal shares by metes and bounds and to allot two such contiguous shares to plaintiff together with costs.
21.The plaintiff in O.S.15/2011 is also plaintiff in O.S.139/2012 and the array of defendants is also similar.
22.The plaintiff stated that his father late Golla Subbayya executed registered Will on 16.01.1983 bequeathing his properties in favour of plaintiff, defendants No.1 to 4, children of plaintiff and children of defendant No.2. It is stated that the Will came into force after the death of Golla Subbayya on 29.05.1984.
11 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
23.According to plaintiff, after the Will came into force, discussions were held between plaintiff and defendants and their children for partition of properties left behind by Golla Subbayya and family arrangement was arrived at wherein it was agreed that the plaint schedule property and also the property bearing D.No.35-3-7 at Uppalavari Street shall be divided into 5 equal shares and family arrangement was reduced to writing on 11.06.1984. The plaintiff stated that as on the date of family arrangement, there were disputes in respect of plaint schedule property with Batchu China Koteswara Rao and
B.Srirama Murthy, who were tenants and also with Agarwal Parvathi Bhai, who trespassed into plaint schedule property. The plaintiff stated that partition could not be affected due to disputes and also the house property could not be partitioned as plaintiff and defendants No.3 and 4 were working at different places on account of their employment. The plaintiff stated that he took all necessary steps to pursue legal proceedings for recovery of respective portions of plaint schedule properties from the tenants as well as Agarwal
Parvathi Bhai by spending money, time, energy and pursued the legal proceedings from trial till obtaining vacant possession of the same in the year, 2005.
24.According to plaintiff, discussions were held in March and April, 2005 between all the brothers for partition of both the immovable properties as well as for reimbursement of expenses incurred in legal proceedings for securing vacant possession of main road building. The plaintiff stated that it was mutually agreed that since both the buildings are amenable for partition it was though fit to sell house properties at Uppalavari street, Rajahmundry to the plaintiff and total value was fixed at Rs.11,25,000/- and after deducting 1/5th share of the plaintiff, balance amount of Rs.9,00,000/- i.e. 4/5th share shall be adjusted out of the sale consideration in respect of main road building (D.No.8-24-73). The plaintiff stated that above terms were reduced in the form 12 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist of agreement of sale on 23.04.2005 executed between plaintiff and defendants No.1 to 4.
25.According to plaintiff, he had spent a sum of Rs.2,45,700/- as on 21.07.2005 over a period of 20 years towards legal expenses in respect of main road building (D.No.8-24-73) and that the defendants No.1 and 2 respectively had spent of Rs.28,500/- and Rs.69,000/-. The plaintiff stated that he was authorised by defendants No.1 to 4 to spend Rs.3,00,000/- for evicting
Balanagu Ratnaji Rao, who was a tenant in the upstair portion of the main road building and the same was to be reimbursed out the sale consideration of main road building proposed to be sold and that the sale consideration is to be divided into 6 equal shares, out of which two shares were to be given to the plaintiff, one share on account of the fact that he is co-sharer and the other share towards his services for spending time and money towards legal proceedings. The plaintiff stated that apart from Rs.2,45,700/- as on the date of Khararunama dt.21.07.2005, he had spent Rs.1,00,000/- for securing vacant possession of upstair portion from Balanagu Ratnaji Rao in the 3rd quarter of 2005.
26.The plaintiff stated that the defendants did not act as per the terms of agreement of sale and Khararunama leading to filing of suit in O.S.736/2007
before learned I Additional Senior Civil Judge’s Court, Rajahmundry for
specific performance of sale in respect of house building (D.No.35-3-7). The plaintiff alleged that defendant No.1 did not come forward for sale of plaint schedule property despite plaintiff bringing prospective buyers. The plaintiff stated that failure on the part of defendants No.1 to 4 to act as per the terms of
Khararunama dt.21.07.2005 for reimbursement of legal expensesled to filing
O.S.442/2008 on the file of learned II Additional Senior Civil Judge’s Court,
Rajahmundry. The plaintiff alleged that defendant No.1 not only failed to 13 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist adhere to the terms of agreement of sale dt.23.04.2005 and Khararunama dt.21.07.2005 but also secretly executed gift settlement deed on 04.06.2007 in favour of his wife and another deed on 08.06.2007 in favour of his three daughters. The plaintiff alleged that gift settlement deeds were brought into existence only to harass him. The plaintiff stated that legal notice was issued to defendants No.1, 3 and 4 on 15.12.2007 and defendants No.3 and 4 gave a reply on 09.01.2008 calling upon plaintiff to furnish the copy of Khararunama and agreement. The plaintiff stated that he informed them that the copy of the same were already filed in O.S.736/2007 on the file of learned I Additional
Senior Civil Judge’s Court, Rajamahendravaram. The plaintiff stated that
present suit is filed within three years from the date of denial of terms of
Khararunama. The plaintiff filed the suit in O.S.15/2011 for the relief stated above.
27.The defendant No.1 filed his written statement denying the plaint averments. The defendant No.1 stated that plaintiff is not entitled to specific performance as it is indefinite about prospective purchasers and also stated that relief of partition is not an alternative for the relief of specific performance.
The defendant No.1 stated that all the brothers attended and contributed to prosecute the litigations and there was never any occasion to the plaintiff and defendants to deliberate and agree to the agreement pleaded by the plaintiff.
The defendant No.1 stated that the agreement dt.21.07.2005 is concocted document and alleged that the plaintiff is making attempts to knock away major part of its value by entering into agreement with prospective buyers. The defendant No.1 stated that execution of gift deeds in favour of his wife and daughters is legal and valid and cannot be challenged by plaintiff.
28.The defendant No.1 stated that there was no necessity or occasion to agree for the additional share to plaintiff as mentioned as alleged in 14 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
Khararunama dt.21.07.2005 and termed the same is illogical and enforceable.
The defendant No.1 stated that the relief of partition cannot be granted as the plaint schedule property was partitioned long ago.
29.The defendants No.3 adopted the written statement filed by defendant
No.1 and he also filed his additional written statement and stated that the suit is barred under Order 2, Rule 2 CPC and also by limitation. The defendant
No.3 stated that the suit is barred by limitation and he sought for dismissal of the suit.
30.The defendants No.4 to 8 filed a memo adopting the written statement of defendant No.1 The defendants No.10 and 11 after they were brought on record in this suit filed a memo concede for passing of the decree in favour of plaintiff, who is their father.
31.Based on rival pleadings, the following issues were settled for trial in
O.S.15/2011 on 31.10.20211.
1Whether the Will dt.16.01.1983 alleged executed by Golla
Subbayya is true, valid and genuine?
2Whether the Family arrangement or agreement dt.11.06.1984 and
Khararunama / agreement dt.21.07.2005 are true, valid, genuine and enforceable under law?
3Whether the Suit for specific performance of agreement to sell the suit schedule property to prospective purchaser is maintainable in the absence of agreement to sell in favour of any purchaser?
4Whether the plaintiff is entitled to a decree of partition of schedule property into six equal shares and allot two such shares to the plaintiff?
15 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
32.During pendency of the suit, Golla Venkateswara Rao, defendant No.2 died and his daughter Kota Subba Ratnam was added as defendant No.9 as per order in I.A.363/2021 dt.13.07.2022. Golla Venkata Satyavathi, defendant
No.5 died and defendants No.1, 6 to 8 were recognized as her legal heirs as per the order in I.A.838/2022 dt.27.10.2022. Defendants No.10 to 12 were added as per order in I.A.511/2023 dt.10.08.2023.
33.On 25.04.2013, the suit in O.S.139/2012 was clubbed with O.S.15/2011 for joint trial and evidence recorded in O.S.139/2012 was treated as common evidence in O.S.15/2011.
34.During the course of trial, plaintiff was examined as P.W.1. Ex.A.1 to
Ex.A.22 were marked by P.W.1. Tatavarthi Ratna Kumar, who is the son of one of attestors of Ex.A.1/ Will, was examined as P.W.2. Vithala Murali Krishna was examined as P.W.3. Putrevu Surya Venkata Rao was examined as P.W.4.
Sikhakolli Yoga Narasimha Prasad was examined as P.W.5. Golla Venkata
Satyanarayana Murthy, defendant No.4 was examined as D.W.1. Golla
Venkata Bala Subrahmanyam, defendant No.3 was examined as D.W.2.
Innamuri Venkata Subbarao, defendant No.12 was examined as D.W.3. No documentary evidence was adduced by defendants.
35.P.W.1 filed his affidavit in lieu of examination-in-chief reiterating the plaint averments.
36.During the course of his cross examination, P.W.1 stated that he worked as an engineer in Roads and Buildings department and major part of his service was rendered at Rajahmundry and that his family was staying in
Rajahmundry while he was employed in other places.
16 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
37.P.W.1 stated that they are five brothers and four sisters and that their sisters are not made parties to the suit and only his brothers made parties to the suit. P.W.1 stated that he does not know who has custody of original Will executed by his father and that he did not issue any notice to defendant No.1 to cause production of original Will. P.W.1 stated that he maintained accounts and handed over accounts to defendant No.1. He stated that accounts other than Ex.A.4 and Ex.A.5 are in the custody of defendant No.1 and that he did not demand defendant No.1 to produce the account books in his custody
before the court.
38.P.W.1 stated that, Ex.A.4 and Ex.A.5 are the extracts of accounts prepared by defendant No.1 and details of those accounts are with defendant
No.1. P.W.1 stated that he did not maintain copy of accounts while handingover account to defendant No.1 but stated that he used to keep copies of all his letter correspondence. P.W.1 stated that defendant No.1 did not raise any objection to the accounts handed over to him. P.W.1 stated that there is no dispute with defendant No.2 and that defendant No.2 filed a memo in
O.S.736/2007 giving his consent for passing of decree as prayed for and
P.W.1 stated that he did not obtain any sale deed from defendant No.2 in respect of his share. P.W.1 stated that he did not produce any document relating to the litigations in respect of building in main road in this case and he did not file any receipts about fee paid to the learned advocates. P.W.1 denied that he did not spend any amount towards legal expenses. P.W.1 stated that his father allotted 1/3rd share in the building in main road and 2/3rd share is given to defendants No.2 to 4 as per the terms executed by their father. He also stated that he was excluded in the Will in respect of building in
Gubbalavari street and it was bequeathed only in favour of defendants No.1 to
4. P.W.1 stated that defendant No.1 executed Ex.A.7 and Ex.A.8 gift deeds in 17 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist respect of his share under the Will. P.W.1 denied that all the brothers jointly got evicted the tenants by spending money jointly and equally.
39.According to P.W.1, out of total sum of Rs.4,32,000/-, he had spent
Rs.3,45,000/-, defendant No.1 as spent Rs.28,500/- and defendant No.2 spent
Rs.69,000/- and defendants No.4 and 5 did not spend any money. P.W.1 stated that he pursued the litigations till middle of year 2005 even after his retirement in the year 2003. P.W.1 stated that he does not have any document to show that he had spent Rs.3,45,700/- and the same are handed over to his brother (defendant No.1) as they are in the custody of his brother. P.W.1 stated that all his brothers reposed faith in his abilities and entrusted to him responsibility of looking after the litigation. P.W.1 denied that his father distributed the property under the Will equally depending on the value of the share and stated that the defendants No.3 and 4 were drawing more salary than him as on the date of execution of Will by their father.
40.P.W.1 stated that he did not file Ex.A.2/ Khararunama before any authority till the date of filing of the suit. P.W.1 denied that Balanagu Ratnaji
Rao is his associate and that the document showing payment of Rs.1,00,000/- to Balanagu Ratnaji Rao for getting the premises evicted is created. P.W.1 stated that property bearing D.No.35-3-7 could not be partitioned as his brothers are residing in different places.
41.P.W.1 filed additional chief affidavit after the suit in O.S.442/2008 was transferred and clubbed with O.S.15/2011. Ex.A.12 to Ex.A.17 were marked by
P.W.1.
42.During the course of his cross examination done on behalf of defendants No.1, 3 to 8, P.W.1 denied that he was illatom son-in-law at Eluru.
P.W.1 stated that he settled permanently in Rajahmundry in the year 1984 and 18 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist till then he was shuttled between Eluru and Rajahmundry. P.W.1 stated that defendants No.1 and 2, who are residents of Rajahmundry could have easily looked after the legal proceedings. P.W.1 stated that he applied for leave to attend court proceedings whenever necessary but did not produce any record in this regard. P.W.1 stated that earlier legal proceedings relating to eviction of two tenants and recovery of possession and that out of the said proceedings, one tenant was paid Rs.1,00,000/- for eviction in order to avoid further delay.
43.P.W.1 stated that earlier court proceedings were initiated by his father.
P.W.1 stated that disputes arose between him and his brothers in May, 2007 and he issued a notice in December, 2007 and thereafter filed O.S.736/2007 on the file of learned I Additional Senior Civil Judge’s Court, Rajahmundry and thereafter filed O.S.442/2008 (O.S.139/2012) and also O.S.15/2011. P.W.1 denied that O.S.15/2011 is barred by limitation and that he is not entitled to seek any relief. P.W.1 stated that he came to know about execution of Will by his father, 15 days after the death of his father. P.W.1 stated that legal expenses were divided into 5 equal shares and he is seeking payment of four such shares from defendants No.1 to 4. P.W.1 stated that O.S.15/2011 is filed for partition of property into six equal shares and to allot two shares to him. He stated that after the death of his mother, gold jewellery was not estimated for partition. P.W.1 denied that the gold jewellery of his mother was partitioned.
P.W.1 stated that he filed title deeds in the earlier litigations but does not remember when they were taken back by him. P.W.1 denied that the documents were destroyed by the Court on account of his failure to take them back. P.W.1 stated that his mother executed a Will and it was altered 2 or 3 times. P.W.1 stated that his mother sold away her house to discharge debt of his father but does not know whether his father has any outstanding debts by the time of his death. P.W.1 denied that Ex.A.3 is fabricated document. P.W.1 denied that Ex.A.4 and Ex.A.5 relating to Court expenditure are created for the 19 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist purpose of this suit and also denied Ex.A.6 is fabricated document. P.W.1 denied that signature of defendant No.2 was obtained after preparing Ex.A.6 to support his case. P.W.1 denied that Ex.A.3, Ex.A.4, Ex.A.5, Ex.A.6, Ex.A.16 and Ex.A.17 are fabricated.
44.A further additional chief affidavit was filed by P.W.1. Ex.A.18 to Ex.A.21 were marked by him. P.W.1 in his additional chief affidavit stated that in May and June, 2014 discussions were held with intending purchasers for sale of property situated at main road and he and his brothers and the same was recorded in video camera on 30.05.2014 and 04.06.2014.
45.During the course of his cross examination on behalf of defendants No.3 and 4, P.W.1 stated that, Ex.A.17 does not show that he personally attended the delivery proceedings and took delivery in the property through court Amin.
He stated that his father did not bequeath any share to him in the house property under the Will dt.16.01.1983. He stated that his mother bequeathed properties in his favour under Will in the year 1983.
46.P.W.1 stated that, Ex.A.2 is dt.11.06.1984 and stated that he cannot say the name of document dt.21.07.2005. He stated that stamp paper on which
Ex.A.3 document dt.21.07.2005 is purchased from V.Padmavathi of Madiki village and that 2 or 3 months after purchase of stamp paper, Ex.A.3 was executed. P.W.1 stated except date and amount in Ex.A.3, the rest of the part is computerized. P.W.1 stated that name of the scribe is not mentioned in it and the attestor did not sign on it. P.W.1 stated that, Ex.A.7 does not contain his signature to show that he personally participated in delivery proceedings.
47.P.W.1 stated that, Ex.A.20 and Ex.A.21 were recorded in the year, 2014 after filing of the suit and stated that the deliberations were recorded at the request of his other brothers and also stated that he did not never have any 20 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist permission from court about Ex.A.20 and Ex.A.21 recordings. P.W.1 stated that the intending purchaser is his nephew and that his nephew asked him to record the proceedings. P.W.1 stated that he saw original of Ex.A.1/Will for the first time in June, 1984. P.W.1 denied that Khararnam is fabricated.
48.P.W.1 stated that, Ex.A.22 certificate was not issued under section 65-
B by Ramu, Videographer, who signed on Ex.A.22/certificate. P.W.1 stated that there are no attestors on Ex.A.3 as no one else were present except family members. He stated that, Ex.A.4 was signed by him and only 3 of his brothers and other 2 brothers were not available for signing the same. P.W.1 denied that defendants No.3 and 4 are not liable to pay amount under Ex.A.4 and Ex.A.5. P.W.1 stated that, Ex.A.6 is not referred in Ex.A.9 notice. P.W.1 denied that he obtained signature of defendants No.3 and 4 on blank papers for the purpose of prosecuting the cases. P.W.1 stated that defendants No.3 and 4 did not execute any other documents except Ex.A.3. P.W.1 denied that the claim in O.S.15/2011 is not maintainable in case O.S.139/2012 is decreed.
P.W.1 stated that he did not obtain any receipt from Bala Nagu Ratnaji Rao to whom he paid money to evict the premises and stated that, Ex.A.3 does not contain signatures of defendants No.5 to 8.
49.Tatavarthi Ratna Kumar was examined as P.W.2. P.W.2 filed his affidavit in lieu of examination-in-chief and stated that his father T.Venkata
Ratnam, earlier was a tenant of plaintiff’s father’s residential building and stated that he identified his father’s signature on xerox copy of Will dt.16.01.1983. P.W.2 stated that his father signed as first attestor and further stated that the plaintiff informed him that the original of the Will is with plaintiff’s elder brother. He however stated that except identifying his father’s signature on the xerox copy of the Will, he does not know about the facts of case and recitals of the Will.
21 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
50.During the course of his cross examination done on behalf of defendants No.1, 3 and 4, P.W.2 stated that xerox copy of Will was never in his custody and also stated that he does not know anything about the original of the same. P.W.2 denied that his father did not attest the original Will.
51.Vithala Murali Krishna, advocate clerk, was examined as P.W.3. P.W.3 filed his affidavit in lieu of examination-in-chief and stated that he was working as an advocate clerk for the past 40 years and plaintiff used to visit the office of the learned advocate for consultation and that he came to know the plaintiff on account of his visits to the office of the learned advocate. P.W.3 further stated that Mylavarapu Narasimha Murthy, who was also an advocate clerk introduced him to the profession as an advocate clerk and Mylavarapu
Narasimha Murthy is the grandfather of his wife. P.W.3 stated that Mylavarapu
Narasimha Murthy was also a professional document writer and scribed sale deed No.6587/1984 dt.29.07.1984 in his favour. P.W.3 further stated that he saw xerox copy of Will dt.16.01.1983 and certified copy of family arrangement dt.11.06.1984 produced by plaintiff and stated that both the documents were scribed by Mylavarapu Narasimha Murthy.
52.During the course of his cross examination, P.W.3 denied that he does not know the hand writing of Mylavarapu Narasimha Murthy and further stated that he is not in possession of sale deed executed in his favour and scribed by
Mylavarapu Narasimha Murthy as the same was produced before the bank for securing loan.
53.P.W.3 was further cross examined on 19.03.2018. During the course of his cross examination done on behalf of defendants No.3 and 4, P.W.3 stated that he cannot identify the signature of Mylavarapu Narasimha Murthy by seeing Ex.A.1 as it is only a certified copy. P.W.3 stated that he does not know whether Mylavarapu Narasimha Murthy maintained any book incorporating 22 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist particular documents scribed by him and also stated that he does not know the particulars of document scribed by Mylavarapu Narasimha Murthy on 11.06.1984 but denied that Mylavarapu Narasimha Murthy had not scribe the document dt.11.06.1984.
54.Putrevu Surya Venkata Rao was examined as P.W.4. P.W.4 stated that
Khararunama dt.21.07.2005 was prepared by his assistant in his office as instructed by plaintiff and defendants No.1 to 4. P.W.4 stated that he delivered the same to the parties after it was prepared.
55.During the course of cross examination, P.W.4 stated that, Ex.A.3 does not contain particulars about who prepared it and stated that name of his assistant who prepared Ex.A.3 is not mentioned in it nor does it contain the signature of any person from his office. He stated that Ex.A.3 is not attested by any person and in 2nd page and 3rd page of Ex.A.3 recitals are in hand writing.
He further stated that, Ex.A.3 was not prepared by him and he does not know who gave instructions to prepare the same. However, P.W.4 denied that
Ex.A.3 was not prepared in his office.
56.Sikhakolli Yoga Narasimha Prasad was examined as P.W.5. According to P.W.5 during the month of May, 2007, plaintiff and defendant No.2 informed him that defendants No.1, 3 and 4 were not honouring the agreement in respect of house property in Uppalavari Street and also in respect of building in main road bearing D.No.8-24-73. P.W.5 stated that he visited defendant
No.1 and that defendant No.1 admitted before him about execution of two agreements by him and his brothers in favour of the plaintiff. P.W.5 stated that he advised defendant No.1 to act as per the terms and conditions of the said agreement and stated that he saw both the agreements which are of the year 2005 when the plaintiff and defendant No.2 approached him and also when he met the defendant No.1 at his residential house in Uppalavari street.
23 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
57.P.W.5 was further cross examined on 19.03.2018. P.W.5 stated that he is co-brother of defendant No.2 and stated that defendant No.2 is sailing with the plaintiff in this suit. P.W.5 stated that he was not present at the time of execution of agreement nor did he read the same. P.W.5 stated that he did not see the Will executed by late Golla Subbayya and also stated that he does not know whether plaintiff’s father did not bequeath any share in the residential house. P.W.5 stated that he does not know whether the mother of plaintiff did not give any property to plaintiff. P.W.5 stated that his visit to the house of defendant No.1 was not video graphed.
58.Defendant No.4 was examined as D.W.1. D.W.1 filed his affidavit in lieu of examination-in-chief reiterating his written statement averments.
59.During the course of his cross examination, D.W.1 stated that he is the youngest of five brothers. He stated that O.S.139/2012 is filed for reimbursement of legal expenses and O.S.15/2011 is filed for partition of the plaint schedule property into six equal shares and for allotting two such shares to the plaintiff. D.W.1 stated that his father died in May, 1984. D.W.1 stated that defendant No.1 studied matriculation and defendant No.2 is graduate in commerce and plaintiff is a retired engineer, whereas he and defendant No.3 respectively are retired Manager and Sub Manager of Andhra Bank.
60.D.W.1 stated that there is no documentary evidence to show that plaintiff was an illatom son-in-law and further stated that his mother stated in her Will that plaintiff was an illatom son-in-law. D.W.1 stated that it is true that
Will executed by his mother it is not mentioned that the plaintiff was an illatom son-in-law. D.W.1 stated that he worked with Andhra Bank from August, 1975 to February 2011 and he was away from Rajahmundry for most of the time on account of his employment. D.W.1 stated that he settled in Hyderabad after his retirement and also stated that he filed memo adopting written statement 24 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist filed by defendant No.1. D.W.1 stated that paragraphs 4 and 5 of his chief affidavits do not relate to the present suit. D.W.1 stated that his father late
Subbayya executed Will on 16.01.1983 in sound and disposing state of mind and the Will was executed in respect of the suit schedule property as well as the suit schedule property in O.S.138/2012.
61.D.W.1 stated that Thatavarthi Venkataratnam and Boda
Venkateswararao are the attestors of the Will and Thatavarthi Venkataratnam was a tenant of their house till 1985. According to D.W.1, Mylavarapu
Narasimhamurthy was the scribe of Ex.A.1.
62.D.W.1 stated that his father bequeathed large extent of property in favour of plaintiff and remaining extent to defendants No.1 to 4. D.W.1 stated that their father did not make any bequest in favour of plaintiff in respect of house property which is plaint schedule property in O.S.138/2012.
63.D.W.1 stated that unregistered family agreement contains his signature at S.No.5. D.W.1 stated that plaintiff obtained his signature on blank papers.
D.W.1 stated that he does not know whether said Khararunama was scribed by Mylavarapu Narasimha Murthy and stated that he knows the contents of
Khararunama as it was read over to him. D.W.1 stated that Khararnam contains the recitals about division of rental income and management of property but does not contain anything about partition of the building. D.W.1 stated that the unregistered Khararunama does not state that the five brothers should divide the property equally, and its states that the property should be enjoyed with equal rights. According to D.W.1, his father made bequests under
Ex.A.1/ Will in a just and equitable manner.
64.During the course of his further cross examination, D.W.1 stated that the plaint schedule property in O.S.15/2011 is main road building bearing 25 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
D.No.8-24-73 and its value is more than the value of the house which comprises the plaint schedule property in O.S.138/2012.
65.According to D.W.1, his father bequeathed 1/3rd undivided share in the plaint schedule property bearing D.No.8-24-73 which is situated in main road in favour of the plaintiff and remaining 2/3rd undivided share was bequeathed in favour of defendants No.1 to 4. According to D.W.1, only life interest was created in favour of defendant No.2 in respect of 1/6th share in the plaint schedule property and thereafter his share is to devolve on the daughter of defendant No.2 and sons of plaintiff. D.W.1 stated that plaintiff was not allotted any share in respect of house property which is plaint schedule property in
O.S.138/2012 and bequest was made only in favour of defendants No.1 to 4.
66.D.W.1 stated that his father did not bequeath his property equally amongst plaintiff and defendants 1 to 4 but stated that share was allotted basing on the status of legatees. D.W.1 stated that the value of the share of the plaintiff and his sons under Ex.A.1 is much more than the value of the shares allotted to each of defendants No.1 to 4. D.W.1 stated that their father died on 29.05.1984 and defendant No.1, being eldest son, was looking after the affairs of the house. D.W.1 denied that on the 13th day of his father’s obsequies, it was decided between plaintiff and defendants No.1 to 4 that property should be divided equally among themselves as their father late
Subbayya did not bequeath shares equally under Ex.A.1/ Will. D.W.1 stated that 11.06.1984 was Monday and he attended his job in Andhra Bank,
Anakapalli. D.W.1 was confronted with Ex.A.2 dt.11.06.1984 and stated that the signature appearing in it belongs to him. However, D.W.1 stated that the signature was obtained on blank stamp papers either at the time of 2nd or 3rd month ceremony on account of his father’s death. However, D.W.1 could not 26 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist identify whether the other signatures appearing in Ex.A.2 belongs to plaintiff and defendants No.1 to 3.
67.D.W.1 stated that he did not state in his pleadings that he was at
Anakapalli on the date of execution of Ex.A.2 and that he signed on empty blank stamp paper during monthly ceremony of their father. D.W.1 stated that
Mylavarapu Lakshmi Narasimha Murthy is the scribe of Ex.A.1/Will. He stated that he did not see the Original Will. D.W.1 stated that the house property was divided among his brothers as per Vasthu. D.W.1 stated that he did not file any document to show that the ground floor of the house was rented to plaintiff and that he along with defendant No.3 shared the rent paid by the plaintiff equally but stated that he has copies showing account of the same. D.W.1 stated that the written statement of defendant No.1 adopted by him does not show that plaintiff staying on rent in the ground floor of the house. D.W.1 stated that all the legal disputes in respect of property were resolved by 1998.
D.W.1 denied that plaintiff alone was looking after the court cases and attended the court but stated that he did not remember the particulars of the cases including the names of the parties and the case numbers due to passage of time. D.W.1 stated that the expenses of eviction case filed by defendants No.1 and 2 against Veeranjaneya Oil shop situated in the southern side of the ground floor of plaint schedule property was shared by all the brothers. D.W.1 stated that his father filed a suit against Agarwal Parvathi Bai in the year 1972. D.W.1 stated that he does not remember any case was filed against Balanagu Ratnaji Rao, who was tenant of first floor of the house.
68.D.W.1 stated that all the four pages of Ex.A.3 / Khararunama contains his signature but was not able to identify whether other signatures in it belong to defendants No.1 to 3. D.W.1 stated that plaintiff obtained his signature on blank papers stating that authorization is required for settlement of dispute 27 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist with tenants in respect of first floor of the plaint schedule property but stated that he did not hand over any blank papers to the plaintiff in respect of dispute with regard to plaint schedule property. D.W.1 stated that it is stated in his chief affidavit that he handed over blank papers to the plaintiff to pursue legal affairs in respect of plaint schedule property but the same is not mentioned in his written statement. D.W.1 denied that all the brothers mutually agreed to spend Rs.3,00,000/- for evicting Balanagu Ratnaji Rao and stated that he has no knowledge whether the date and amount of Rs.3,00,000/- in Ex.A.3 is in hand writing of defendant No.1. D.W.1 stated that Balanagu Ratnaji Rao vacated the premises in August, 2005. D.W.1 was not able to identify whether entries in Ex.A.4 and Ex.A.5 are in the handwriting of defendant No.1 and contains the signature of plaintiff and defendants No.1 and 2. However, D.W.1 was able to identify his signature in Ex.A.16. According to D.W.1, Ex.A.20 and
Ex.A.21 shows the defendant No.1 affirming Ex.A.3/Khararunama. D.W.1 denied that he and defendant No.3 did not spend any amount in prosecuting the suits. D.W.1 denied that defendant No.1 to 4 agreed to reimburse their respective shares in legal expenses to the plaintiff under Ex.A.3. D.W.1 stated that he did not question plaintiff about the purpose for which empty stamp papers containing his signature were put to use by the plaintiff as he trusted the plaintiff.
69.Golla Venkata Bala Subrahmanyam, defendant No.3 was examined as
D.W.2. D.W.2 filed his affidavit in lieu of examination-in-chief reiterating his written statement averments.
70.During the course of his cross examination, D.W.2, stated that he worked with Andhra bank from September 1975 till his voluntary retirement in 2001. D.W.2 stated that defendant No.1 informed him about Ex.A.1 registered
Will executed by his father and the same is with defendant No.1. D.W.2 stated 28 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist that Tatavarthi Venkataratnam is an attestor of Ex.A.1/ Will. D.W.2 stated that
Mylavarapu Narasimha Murthy is his father’s friend but he does not know whether he is scribe of Ex.A.1/ Will. D.W.2 further stated that under Ex.A.1/
Will 1/3rd share in the plaint schedule property was bequeathed in favour of plaintiff and remaining 2/3rd share bequeathed jointly in favour of defendants
No.1 , 2, 3 and 4. He stated that 1/2 share of the defendant No.2 was allotted to defendant No.9, who is daughter of defendant No.2 and another 1/2 share of defendant No.2 is allotted to defendants No.10 and 11, who are sons of plaintiff. D.W.2 stated that plaintiff was allotted more valuable share under
Ex.A.1/Will than was bequeathed in favour of each of defendants No.1 to 4.
D.W.2 stated that the plaint schedule property originally consisted of G+1 building but it is now a vacant site after it was demolished.
71.D.W.2 stated that at the time of his father’s death, there were disputes between Agarwal Parvathi Bhai and his father on one hand and also a dispute between his father and Batchu Koteswara Rao on the other. D.W.2 stated that he has no knowledge when the other cases were disposed off. He stated that he does not have knowledge since he was not staying in Rajamahendravaram from 1984 onwards. D.W.2 stated that he has no knowledge whether judgment and decree passed in O.S.59/1981 and O.S.60/1981 were challenged before the Hon’ble High Court of Andhra Pradesh and the Hon’ble Supreme Court of
India and whether any appeal or revision was preferred against
R.C.C.47/1986. D.W.2 denied that plaintiff was looking after above three cases. D.W.2 identified his signature in Ex.A.2. D.W.2 stated that his father did not make bequest of his properties in equal shares to plaintiff and defendants
No.1 to 4 under Ex.A.1/ Will.
72.D.W.2 stated that he adopted written statement filed by defendant
No.1. D.W.2 stated that he signed on empty stamp paper so that it may be 29 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist used in future in any dispute relating to the properties and handed over to defendant No.1 for making use of the same in civil litigations. D.W.2 stated that the same is not mentioned in his pleadings. D.W.2 stated that he has no disputes with defendant No.1.
73.Innamuri Venkata Subbarao was examined as D.W.3. Even though,
D.W.3 stated that he is party to the proceedings, infact he is defendant No.12 in O.S.15/2011 and O.S.139/2012. He filed his affidavit in lieu of examination- in-chief stating that plaintiff tried to knock away the joint family properties and plaintiff has severed his ties with the family. D.W.3 in his affidavit stated that defendants No.3 and, 4 who were working at several places reposed trust in their elder brother and used to pay monies to him towards legal expenses.
D.W.3 stated that plaintiff fabricated the documents.
74.During the course of his cross examination, D.W.3 stated that his marriage with the daughter of defendant No.1 was performed in October, 1984 and prior to his marriage he was not related to the parties to this suit. He stated that Late Golla Subbayya passed away prior to his marriage and that he did not have personal knowledge about family affairs of his father-in-law prior to his marriage. He stated that his father-in-law (defendant No.1) and defendant No.2 told him about the family affairs. D.W.3 stated that the vakalat filed in this suit bears his signature. D.W.3 stated that defendants No.1 to 4 told him that plaintiff severed his ties with the family. D.W.3 stated that he was informed about execution of Ex.A.1/Will by defendant No.1 and he came across the copy of the same. D.W.3 stated that defendants No.3 and 4 used to pay money to defendant No.1 towards legal expenses as defendant No.1 was looking after the legal affairs but stated that he does not know the particulars of amounts paid by defendants No.3 and 4 to defendant No.1. D.W.3 was not 30 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist able to re-collect whether Ex.A.4 and Ex.A.5 contain signature of defendant
No.1.
75.Heard learned counsel for plaintiff and learned counsel for the defendants No.1, 5 to 8, learned counsel for defendants No.3 and 4. Written arguments were filed on behalf of defendants No.3 and 4. Written reply submitted by learned counsel for plaintiff for written arguments filed by defendants No.3 and 4.
Submissions of learned counsel for plaintiff:
76.The learned counsel for plaintiff while reiterating the facts of the case submitted that plaintiff had originally filed O.S.442/2008 on the file of learned I
Additional Senior Civil Judge’s Court, Rajahmundry and the same was
transferred to this court and re-numbered as O.S.139/2012.
77.The learned counsel for plaintiff submitted that plaintiff and defendants
No.1 to 4 are brothers and sons of late Golla Subbayya. He submitted that building bearing D.No.8-24-73 (main road building) and D.No.35-3-7,
Upplavari street (house building) are the self-acquired properties of late Golla
Subayya. He submitted that late Subbayya during his life time executed
Ex.A.1/ registered Will dt.16.01.1983 in sound and disposing state of mind allotting 1/3rd share to plaintiff in house bearing D.No.8-24-73, mainroad building and remaining 2/3rd share allotted jointly in favour of defendants No.1 to 4. He submitted that life interest was created in favour of defendant No.2 in respect of 1/4th share out of 2/3rd share in the main road building bearing
D.No.8-24-73 and thereafter his share devolved on defendants No.2’s daughter and the sons of plaintiff. He submitted that the other house i.e.
residential house (D.No.35-3-7) was bequeathed in favour of defendants No.1 31 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist to 4 and plaintiff was not given any share in the residential house bearing
D.No.35-3-7 under Ex.A.1/ Will.
78.The learned counsel for plaintiff submitted that after the death of their father on 29.05.1984, on realizing that there was no just and equitable distribution of property under Ex.A.1/ Will, all the sons of late Golla Subbayya (plaintiff and defendants No.1 to 4) agreed that all of them have 1/5th share in both main road building bearing D.No.8-24-73 as well as residential building bearing D.No.35-3-7, Uppalavari street and the terms of the same were reduced into writing on 11.06.1984 under Ex.A.2.
79.The learned counsel for plaintiff submitted that all the brothers executed Ex.A.2 dt.11.06.1984 after fully understanding with terms and conditions and it was agreed on behalf of grandchildren of Golla Subbayya.
He submitted that as per terms of Ex.A.2, it was agreed that all the five sons of late Golla Subbayya are entitled to equal shares in both main road building and residential house and thereafter the legatees under Ex.A.1/Will gave up their rights under Ex.A.1 and entered into another agreement on 11.06.1984.
He submitted that during his life time Golla Subbayya filed two suits in
O.S.59/1981 and O.S.60/1981 seeking eviction of Srirama Murthy and also
recovery of possession from Agarwal Parvathi Bhai. He submitted that after the death of their father, the plaintiff pursued the legal proceedings and submitted that R.C.C.47/1986 filed against Bachu Koteswara Rao seeking eviction from southern side of ground floor of main road property. He submitted that plaintiff was pursuing litigation from trial court till the Hon’ble
Supreme Court of India all through out and spent his time, money and efforts in pursuing the same. He submitted that plaintiff had spent a sum of
Rs.2,45,700/-, defendant No.1 spent Rs.28,500/- and defendant No.2 spend
Rs.69,000/- towards legal expenses and defendants No.3 and 4, who are 32 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist employed with Andhra Bank were staying at different places and they did not spend any amount in pursuing the litigation as they did not stay in
Rajahmundry. He submitted that all the above three legal proceedings were continued for long after the death of their father. He submitted that, Ex.A.16 is petition in E.P.50/1985 in O.S.60/1981 filed by Late Golla Subbayya against
Agarwal Parwathi Bhai and after the death of Golla Subbayya, plaintiff and defendants were made parties to the suit and execution proceedings were terminated only after delivery on 07.11.1998 as can be seen from Ex.A.17 delivery proceedings. He submitted that, Ex.A.18 is certified copy of proceedings in E.P.6/2003 in R.C.C.47/1986 filed seeking eviction of Batchu
China Koteswara Rao and the E.P. was terminated on 01.07.2003 after delivery was effected. He submitted that, Ex.A.16 and Ex.A.18 clearly goes to show that legal-proceedings seeking eviction of tenants and recovery of possession against trespasser continued for long after the death of late Golla
Subbayya.
80.The learned counsel for plaintiff submitted that plaintiff was looking after all the legal proceedings as he is well educated and also on account of the fact that defendants No.3 and 4 were not coming frequently to Rajahmundry on account of their employment.
81.The learned counsel for plaintiff submitted that agreement was reduced into writing under Ex.A.3 on 21.07.2005 wherein defendants No.1 to 4 recognized the services of plaintiff in pursuing the legal remedies and wherein it was clearly mentioned that a total sum of Rs.3,43,200/- was spent towards legal expenses in the above proceedings and plaintiff had spent Rs.2,45,700/-, defendant No.1 had spent Rs.28,500/- and defendant No.2 had spent
Rs.69,000/- as and when required. He stated that, Ex.A.3 also authorized that the plaintiff to give Rs.3,00,000/- to Balanagu Ratnaji Rao, who was proprietor 33 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist of Modern type institute in the up-stair of the building and plaintiff in pursuance of same Rs.1,00,000/- for getting Balanagu Ratnaji Rao evicted and to recovery of possession of the same.
82.The learned counsel for plaintiff further submitted that Ex.A.16 to
Ex.A.19 coupled with recitals in Ex.A.3 agreement clearly shows that the most of the legal proceedings were pursued by plaintiff by spending his time, energy and efforts apart from money and that in due recognition of plaintiff’s services, it was agreed by the defendants No.1 to 4 that main road building bearing
D.No.8-24-73 shall be sold and the sale proceedings shall be divided into 6 parts out of two parts shall be given to plaintiff and remaining 4/6th share shall be distributed between defendants No.1 to 4. It was further agreed that defendants No.1 to 4 shall pay a sum of Rs. 2,45,700/- along with future expenses upto Rs.3,00,000/- to be incurred by plaintiff towards vacating upstair portion which was occupied by Balanagu Ratnaji Rao. The total expenses incurred by plaintiff was to be paid by defendants No.1 to 4 at the time of registration of main road building bearing D.No.8-24-73.
83.The learned counsel for plaintiff further submitted that plaintiff and defendants further entered into Ex.A.6 dt.15.02.2007 and it clearly shows that all the defendants under Ex.A.6 agreed to give 2/6th share in main road building and 1/5th share in residential house to plaintiff. He submitted that defendants No.1 to 4 failed to discharge their obligations under Ex.A.2 and
Ex.A.3 leading to filing of both the above suits as well as another suit in
O.S.138/2012.
84.The learned counsel for plaintiff further submitted that plaintiff and defendants entered into Ex.A.6 agreement on 15.02.2007, wherein it is mentioned that it was agreed to sell the residential house to the plaintiff after deducting his 1/5th sale consideration towards his share and remaining 4/5th 34 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist sale consideration shall be divided into equal shares and thereafter registered the residential house bearing D.No.35-3-7 shall be registered in his name.
85.The learned counsel for plaintiff further submitted that it was agreed that in recognition of plaintiff’s efforts in pursuing the legal proceedings, the defendants No.1 to 4 agreed to allot 2/6th share in the house bearing D.No.8- 24-73 to plaintiff and distributed the remaining 4/6th share among themselves and the property shall be sold and the share of the defendants No.1 to 4 in the legal expenses spent by plaintiff shall be deducted from sale consideration of main road building bearing D.No.8-24-73.
86.The learned counsel for plaintiff further submitted that defendants No.1 executed two gift settlement deeds in favour of defendants No.5 to 8 without any manner of right, in order to cause hardship to the plaintiff. He submitted that defendants did not come forward to sell the main road property despite best efforts of plaintiff and they acted contrary to Ex.A.3 and Ex.A.6. He submitted that execution of Ex.A.3 is evident in Ex.A.6. He submitted that plaintiff is entitled to the relief of both in the suit.
87.The learned counsel for plaintiff submitted that D.W.1 and D.W.2, who are former employees of the bank stated that they signed on empty blank stamp papers at the instance of defendant No.1 in order to facilitate legal proceedings. He submitted that, Ex.A.3 is dt.21.07.2005 whereas the property on which plaintiff was pursing legal remedies after the death of their father were delivered under Ex.A.17 and Ex.A.19 respectively. He submitted that,
Ex.A.20 and Ex.A.21 video recordings shows that deliberations held in respect of sale of the property and defendants clearly admitted to the terms of Ex.A.3.
He submitted that, Ex.A.1/Will is duly proved by examining P.W.2 and evidence of P.W.3 clearly shows that Ex.A.2 was agreed between plaintiff and defendants No.1 to 4 voluntarily.
35 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
88.The learned counsel for plaintiff further submitted that, Ex.A.3 clearly states that Khararunama agreement was prepared as per the wishes of plaintiff and defendants No. 1 to 4 and he further submitted that merely mentioning the date and total amount in hand writing does not render Ex.A.3 invalid and that it is not uncommon that a part of agreement is hand written and part of it is type written. He further submitted that D.W.1 and D.W.2 could not say anything about earlier legal proceeding and the evidence of plaintiff as
P.W.1 clearly shows that he pursued the legal proceedings diligent.
89.The learned counsel for the plaintiff submitted that the court litigation ended in January, 2005 whereas Ex.A.3 is dt.21.07.2005. He sought for decreeing both the suits.
Submissions of learned counsel for defendants No.1, 5 to 8:
90.The learned counsel for defendants No.1, 5 to 8 submitted that the suit is filed by plaintiff by misusing the name of the defendant No.1 who is eldest of 5 brothers. He submitted that evidence on record clearly goes to show that the sisters of the plaintiff are not made parties to the suit and suit is bad for non- joinder of necessary parties.
91.The learned counsel for defendants No.1, 5 to 8 submitted that
Khararunama propounded by plaintiff is concocted and fabricated. He submitted that plaintiff is brought into existence Ex.A.3/ Khararunama claiming that he had spent major part of the legal expenses whereas even according to him the defendant No.1 was looking after the litigations. He submitted that,
Ex.A.17 clearly shows that property comprised therein was delivered to defendant No.1 and not plaintiff. He submitted that this clearly shows that defendant No.1 is the person who took interest in pursuing the legal remedies and not the plaintiff who was employed outside Rajahmundry.
36 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
92.The learned counsel for defendants No.1, 5 to 8 submitted that, Ex.A.3 does not mention about Ex.A.4. He submitted that plaintiff also did not produce the original Will and instead throw the blame on defendant No.1. He submitted that plaintiff also filed O.S.138/2012 and hence the present suit in
O.S.15/2011 is barred under Order 2, Rule 2 CPC.
93.The learned counsel for defendants No.1, 5 to 8 submitted that, defendant No.1 in his own right executed Ex.A.7 and Ex.A.8/ gift deeds in favour of defendants No.5 to 8 and in respect of his share in the properties and they confer valid title. He sought for dismissal of the suit.
Submissions of learned counsel for defendants No.3 and 4:
94.The learned counsel for defendants No.3 and 4 submitted that, Ex.A.2,
Ex.A.3 and Ex.A.6 cannot be looked into and they were brought into existence by taking advantage of blank paper signed by defendants No.3 and 4 and handed over to defendant No.1. He submitted that Ex.A.4 and Ex.A.5 are not signed by defendants No.3 and 4 and they are not binding on defendants No.3 and 4. He submitted that Ex.A.6 also does not contain the signatures of defendants No.3 and 4 and it was brought into existence by plaintiff in collusion with defendant No.2 and it is not binding on defendants No.3 and 4.
He submitted that defendants No.3 and 4 never consented for Ex.A.3 and it was obtained behind their back by taking advantage of blank papers signed by them for the purpose of legal proceedings. He submitted that P.W.3 did not produce any signature of Mylavarapu Narasima Murthy and hence his evidence is not relevant to the facts of the present case.
95.The learned counsel for defendants No.3 and 4 submitted that, all the 5 brothers contributed towards legal expenses and excess contribution, if any made by any of the brothers was duly reimbursed. He submitted that, Ex.A.2 37 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist is concocted document and it does not even contain the name of the scribe.
The defendant No.4, who examined as D.W.1 stated that he resumed duty at
Andhra Bank, Anakapalli on 11.06.1984 and it is highly impossible for him to sign on alleged date of Ex.A.2. Similarly, the defendant No.3 was also not present on the date of alleged execution of Ex.A.2. He submitted that it is highly unbelievable that stamp paper on which Ex.A.2 is written was purchased on 08.06.1984 i.e during the period of mourning of death of their father and that plaintiff brought into existence Ex.A.2.
96.The learned counsel for defendants No.3 and 4 submitted that, Ex.A.6 is a conditional document and is voidable. He submitted that, Ex.A.3 and Ex.A.6 are not attested by any witnesses and it is highly unnatural that family arrangements are reduced to writing without the presence of any witnesses.
He submitted that, Ex.A.2 itself mentions that plaintiff has got only 1/5th share in the main road building and residential house whereas in Ex.A.6 it is mentioned that the plaintiff has 2/6th share in main road building bearing
D.No.8-24-73. He submitted that two different versions put forth by plaintiff clearly shows that all the documents were fabricated. He submitted that the suit on the basis of Ex.A.3 and Ex.A.6 is barred by limitation. He submitted that plaintiff is not clear about his case as is evident from his cross examination. He submitted that statement of accounts filed by plaintiff are self- serving documents and cannot be looked into. He submitted that plaintiff did not file any document showing that he had spent Rs.2,45,700/- towards legal expenses and also paid further sum of Rs.1,00,000/- to Balanagu Ratnaji Rao for getting the premises first floor main road building D.No. 8-24-73 vacated.
He submitted that plaintiff only brought into existence Ex.A.2 to Ex.A.6 for filing frivolous cases. He sought for dismissal of both the suits.
38 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
Issue No.1 in O.S.15/2011
Whether the Will dt.16.01.1983 alleged executed by Golla Subbayya
is true, valid and genuine?
97.According to plaintiff, his father Golla Subbayya executed a Will on 16.01.1983 making bequest of property in the manner stated therein.
According to plaintiff, his father bequest 1/3rd share in house bearing D.No.8- 24-73 and remaining 2/3rd share bequeathed jointly in favour of defendants
No.1 , 2, 3 and 4. It is stated that 1/2 share of defendant No.2 was allotted to defendant No.9, who is daughter of defendant No.2 and another 1/2 share defendant No.2 is allotted to defendant No.10 and 11 who are sons of plaintiff.
The plaintiff is not given any share in house bearing D.No.35-3-7 which is situated in Uppalavari Street.
98.Section 63 of Indian Succession Act, 1925 states that 6 3. Execution of unprivileged Wills:
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:—
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
39 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
99.Section 63(c) of Indian Succession Act states that Will shall be attested by 2 or more witnesses and the manner of attestation is stated therein.
According to plaintiff the Will was attested by Tatavarthi Venkata Ratnam and
Boda Venkateswara Rao.
100.Section 68 in The Indian Evidence Act, 1872 states that
68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.
101.Section 69 of Indian Evidence Act, 1872 states that
69. Proof where no attesting witness found.If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
102. Tatavarthi Ratna Kumar, S/o Tatavarthi Venkata Ratnam was examined as P.W.2. Ex.A.1 is the registration extract of the Will executed by
Golla Subbayya. A copy of the Will said to have been executed by Golla
Subbayya was produced at the time of examination of P.W.2. The registration extract of Will does not contain the signature of attestor and also scribe. The copy of the Will that was produced on behalf of plaintiff was not marked as it was as xerox copy and does not fall within the meaning of secondary evidence as defined under section 65 of Indian Evidence Act.
40 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
103.The proviso to section 68 of Indian Evidence Act states that a Will should be proved by examining attesting witness. In S.R.Srinivas Vs
S.Padmavathamma 1, the Hon’ble Supreme Court of India was pleased to hold that the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. It was held that admission in the pleadings as to the Will can only be about making of the Will and not its genuiness.
104.Even though, the defendants did not dispute the execution of Will by their father, the plaintiff is still under an obligation to prove the Will in accordance with the proviso to Section 68 of Indian Evidence Act. In the present case, the plaintiff only produced copy of the original Will and the registration extract does not contain the names of persons who acted as attestors of the same. In these circumstances, it cannot be said that the Will was proved in accordance with Section 63 (c) of Indian Succession Act and
Section 68 of Indian Evidence Act. The issue is answered accordingly against the plaintiff.
Issue No.2:
Whether the Family arrangement or agreement dt.11.06.1984 and
Khararunama / agreement dt.21.07.2005 are true, valid, genuine and
enforceable under law?
105.Golla Subbayya, fathr of plaintiff and defenants No.1 to 4 died on 29.05.1984. According to the plaintiff after the death of their father it was released that there father did nto make just and equitable bequest of properties in favour of among plaintiff and defendants No.1 to 4. The plaintiff stated that a family arrangement was entered on 11.06.1984 wherein it was decided that both the main road building and the residential house are to be 1(2010) 5 SCC 274 41 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist distributed equally among all 5 brothers. The defendants No.3 and 4 seriously disputed the claim of the plaintiff that it was executed by all the brothers. It is their case that their signatures were obtained on blank stamp papers for the purpose of prosecuting the legal proceedings in O.S.59/1981 O.S.60/1981 pending at the time death of their father.
106.A perusal of Ex.A.2 goes to show that it was signed by the plaintiff as well as defendants No.1 to4. D.W.3 during the course of his cross examination stated that he resumed duty on 11.06.1984. However, there are no pleadings to this effect. It is well established principle of law that no amount of evidence without pleadings can be admitted. It is relevant to note that both the defendants No.3 and 4 are former employees of bank and it is unbelievable that they merely signed on blank papers without ascertaining the necessity for signing the same. They being well educated would be well aware of the fact that having admitted their signatures in Ex.A.2, cannot disown its terms.
Ex.A.2 is not a compulsorily attestable document as it only contains an understanding amongst brothers that property should be divided equally among themselves. It is relevant to note that the properties are not actually partitioned and only share of each of the brothers is mentioned in Ex.A.2
Hence, Ex.A.2 does not require registration.
107.The plaintiff claimed that he had spent money towards pursuing legal expenses in O.S.59/1981 and O.S.60/1981 and also RCC 47/1984, the plaintiff claimed that he had spent a sum of Rs.2,45,700/-, defendant No.1 spent Rs.28,500/- and defendant No.2 spent Rs.69,000/-.
108.Ex.A.3 also contains signature of defendants No.3 and 4 even though it was contended that defendants No.3 and 4 that they signed on emply blank stamp papers at the request of defendant No.1 in order to facilitate legal proceedings, their contention is bound to fail for the reasons stated earlier.
42 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
Moreover, Ex.A.3 clearly shows stamp paper is dt.21.04.2005 whereas
Ex.A.17 shows that legal proceedings terminated in January, 2005. Hence, there is no merit in the contention of defendants No.3 and 4 that they are not bound by terms of Ex.A3. The defendants No.3 and 4 did not discharge the burden that lies on them to prove that Ex.A3 is not finding on them. The defendants did not substantiate their case by showing that they were not present in Rajahmundry on the date of its execution.
109.It is evident that family arrangement dt.11.06.1984 and Khararunama dt.27.07.2005 are true, valid and enforceable against the defendants. The issue is answered accordingly in favour of the plaintiff.
Issue No.3:
Whether the Suit for specific performance of agreement to sell the
suit schedule property to prospective purchaser is maintainable in the
absence of agreement to sell in favour of any purchaser?
110.The plaintiff is claiming relief of specific performance of agreement of sale and apportionment of sale proceeds as per the terms of Ex.A.3 and
Ex.A.6. However, it is relevant to note that plaintiff did not name any person who is evinced interest to purchase the property. The court cannot look for prospective buyers on behalf of plaintiff nor can it fix the terms of sale. It is not the case of plaintiff that any person is ready and willing to purchase the property. The relief of specific performance cannot be granted in the absence of definite particulars. Ex.A.3 and Ex.A.6 are not clear about the terms of sale.
The plaintiff is not entitled to the relief of specific performance. The issue is answered accordingly against the plaintiff.
Issue No.4:
Whether the plaintiff is entitled to a decree of partition of schedule
property into six equal shares and allot two such shares to the plaintiff?
43 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
111.The plaintiff sought for partition of plaint schedule property into six equal shares as stated earlier two such shares to plaintiff. Ex.A.3 clearly shows that plaintiff has 2/6th share in the plaint schedule property main road building bearing D.No.8-24-73. It was contended on behalf of defendants that the main relief sought is specific performance of agreement of sale and partition is not consequential relief to specific performance of agreement of sale.
112.Section 22 of Specific Relief Act 1963 states that
1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for—
(a) possession, or partition and separate possession, of the property, in ad- dition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under sec- tion 21.
113.In the present case, the claim of the plaintiff is based on Ex.A.3. The plaintiff was denied the relief of specific performance on account of fact that the name of prospective buyers is not mentioned in it nor are its terms certain.
114.Section 22(1) of Specific Relief Act states that plaintiff can only ask for possession or for partition and separate possession in addition to specific 44 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist performance. In the present case plaintiff sought specific performance of a non-existing agreement of sale. It is not a case where the buyer of a share of coparcenary property is seeking partition of the same, but a coparcener himself seeking partition as an alternative relief to relief of specific agreement of sale. However Section 22(1) of Specifi Relief Act states that partition is only consequential relief to specific performance and not an alternative relief to specific performance. Since the relief of specific performance is not granted, the alternative relief of partition of plaint schedule property is not maintainable.
115.In the present case, it cannot be said that the plaintiff is entitled to the relief of partition on the basis of Will and he should have made his sisters as party to the suit in view of Section 6 of Hindu Succession Act 1956. Hence, the plaintiff is not entitled to the relief as claimed by him. The issue is answered accordingly against the plaintiff.
Issue No.1 in O.S.139/2012
Whether the plaintiff is entitled to the suit amount as prayed for?
116.As stated earlier, Ex.A.3 is true, valid and binding on the defendants. A perusal of Ex.A.3 shows that plaintiff had spent Rs.2,45,700/-, defendant No.1 spent Rs.28,500/- and defendant No.2 spent Rs.69,000/-.
117.The defendants empower the plaintiff to spent Rs.3,00,000/- for get one of the tenants, Balanagu Ratnaji Rao, evicted from the first floor of the plaint schedule property. However, plaintiff as P.W.1 claimed that he had spent
Rs.1,00,000/- towards Balanagu Ratnaji Rao evicted. However, in the absence of any evidence showing that plaintiff had spent Rs.1,00,000/- for getting
Balanagu Ratnaji Rao evicted, the claim of the plaintiff with regard to the same is not sustainable.
45 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist 118.A perusal of Ex.A.3 goes to show that a total sum of Rs.3,43,700/- was spent towards legal expenses by plaintiff and defendants No.1 and 2. The plaintiff and defendants No.1 to 4 are five in number. The share of each one of them in the legal expenses would be Rs.68,740/-. As per Ex.A.3, the plaintiff already spent Rs.2,45,700/-. After deducting plaintiff’s share in the total expenses the remaining amount would be Rs.2,74,960/-. The plaintiff had already paid amount of his share and the defendant No.1 had paid amount of
Rs.28,500/- and he is liable to pay Rs.40,240/- to the plaintiff towards reimbursement of legal expenses. The defendant No.2 had already paid
Rs.69,000/- towards legal expenses. The defendants No.3 and 4 are each liable to pay a sum of Rs.68,640/- to the plaintiff towards their share in the legal expenses. The liability of defendants No.1, 3 and 4 to pay their respective amounts payable by them is distinct and separate since each one of them should contribute separately. The issue is answered accordingly in favour of the plaintiff.
Issue No.2 in O.S.139/2012
To what relief?
119.In the result, the suit in O.S.139/2012 is decreed with proportionate costs.
(a) The plaintiff is entitled to recover a total sum of Rs.1,77,520/- (Rupees
One Lakh Seventy Seven Thousand Five Hundred and Twenty only) from defendants No.1, 3 and 4.
(b)The defendant No.1 shall pay a sum of Rs.40,240/- (Rupees Forty
Thousand Two Hundred and Forty only) together with interest @ 9% per annum from the date of filing of the suit (18.07.2008) till the date of 46 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist decree (10.04.2024) and thereafter @ 6% per annum from the date of decree till the date of realization on sum of Rs.40,240/-.
(c)The defendants No.3 and 4 shall each pay a sum of Rs.68,640/- together with interest @ 9% per annum from the date of filing of the suit (18.07.2008) till the date of decree (10.04.2024) and thereafter @ 6% per annum from the date of decree till the date of realization on sum of
Rs.68,640/- payable by each of them.
(d)The liability of defendants No.1, 3 and 4 is distinct and separate.
(e)The suit is dismissed against defendants No.2, 5 to 12.
O.S.15/2011
120. In the result, the suit in O.S 15/2011 is dismissed with costs.
Dictated to Stenographer Grade III, transcribed by her, corrected and
pronounced by me in the open Court, on this the 10th day of April, 2025.
Sd/- D.Vijay Goutam
V Additional District Judge Rajamahendravaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:-
P.W.1: Golla Venkata Subba Rao
P.W.2: Tatavarthi Ratna Kumar
P.W.3: Vithala Murali Krishna
P.W.4: Putrevu Surya Venkata Rao
P.W.5: Sikhakolli Yoga Narasimha Prasad 47 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
FOR DEFENDANTS:-
D.W.1: Golla Venkata Satyanarayana Murthy
D.W.2: Golla Venkata Bala Subrahmanyam
D.W.3: Innamuri Venkata Subbarao
EXHIBITS MARKED
FOR PLAINTIFF:
Ex.A1Certified copy of deed dt.16.01.1983
Ex.A2Unregistered Kararunama dt.11.06.1984.
Ex.A3Unregistered Kararunam agreement dt.21.07.2005
Ex.A4Extract showing the expenditure and accounts dt.10.11.2004 and 20.04.2005 respectively. &
Ex.A.5
Ex.A6Undertaking letter (agreement) dt.15.02.2007
Ex.A.7Registration extract of settlement deed dt.08.06.2007
Ex.A.8Certified copy of registered settlement deed dt.04.06.2007.
Ex.A.9Office copy of legal notice dt.15.12.2007
Ex.A.10Postal receipts three in number
Ex.A.11Postal acknowledgement of Defendant No.1
Ex.A.12Reply notice dt.09.01.2008 issued by defendants No.3 and 4.
Ex.A.13Rejoinder notice dt.16.01.2008 issued to defence counsels by plaintiff’s counsel
Ex.A.14Another reply notice dt.05.03.2008 issued by defendants No.3 and 4.
48 O.S No.139/2012 and O.S.15/2011 Dt.10.04.2025, V ADJC, EG Dist
Ex.A.15Another rejoinder notice dt.20.03.2008 issued by the counsel for the plaintiff to the counsel for the defendants 3 and 4.
Ex.A.16Petition in E.P.50/1985 in O.S.60/1981 on the file of I Additional
District Court, Rajahumdry.
Ex.A.17Amins delivery report in Ex.P.50/1985.
Ex.A.18Certified copy of E.P.6/2003 in R.C.C.47/1986 on the file of Rent
Controller, Rajahmundry relating to the property covered by D.No.8- 24-73, situated on the main road, Rajahmundry.
Ex.A.19Certified copy of Amens report dt.01.07.2003 in E.P.6/2003 in RCC 47/1986 dt.01.07.2003.
Ex.A.20DVDs (two in number) i.e. recorded on 30.05.2014
Ex.A.21DVDs (two in number) i.e. recorded on 04.06.2014
Ex.A.22Certificate issued by VNR Digital studio and Video dt.11.02.2018
FOR DEFENDANTS:- Nil
Sd/- D.Vijay Goutam
V ADJ, RJY