1 O.S.10/2009 VII ADJ/VSP
IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE,
VISAKHAPATNAM
Present: Smt. G.Anandi, VII Addl. District Judge, Visakhapatnam.
Monday, the 30th day of January, 2023
ORIGINAL SUIT No. 10/2009
Between:
1. Bhupathiraju Gowrisankara Raju, S/o Late Jogi Jagannadha Raju, Hindu, aged 90 years, Senior Advocate Residing at D.No.29-18-8, Lalitha Colony, Dabagardens, Visakhapatnam(Died).
2. Bhupathiraju Butchi Venkata Padmanabha Raju, S/o of Late Sri Gowrisankararaju, Hindu, aged 60 years, residing at D.No.29-10-8, Lalitha Nagar, Dabagardens, Visakhapatnam.
3. Bhupathiraju Jogi Jagannadharaju, S/o Late Gowrisankararaju, Hindu, aged 54 years, residing at D.No.29-10-8, Lalitha Colony, Dabagardens, Visakhapatnam.
4. Bhupathiraju Seetharama Raju, S/o Late Gowrisankararaju, Hindu, aged 52 years, residing at D.No.29-10-8, Lalitha Colony, Dabagardens, Visakhapatnam.
5. Bhupathiraju Varma Babu, S/o Late Bhupathiraju Gowrisankararaju, Hindu, aged 50 years, residing at D.No.29-10-8, Lalitha Colony, Dabagardens, Visakhapatnam. (Plaintiffs 2 to 5 are added as legal representatives of the deceased 1st plaintiff as per orders in I.A.3083/2009, dated.28.10.2010)
Plaintiff And:
1.Attili Satyamamba, W/of late Viswanadham Garju, Hindu, aged 60 years, residing at D.No36-92-33, Burma Camp, Kancharapalem, Visakhapatnam.
2.Draksharapu Venkata Triveni, W/of Tulasi Rao Garju, Hindu, aged 43 years, House hold duties, residing at D.No.36-92-37, Kapparada, Kanchara Palem, Visakhapatnam.
3.Matta Bhagya Lakshmi W/of late Surya Prakasarao Garu, Hindu, aged 41 years, residing at -Rest do-.
4.Attili Kamakshamma, W/o late Peda Venkata Raman Murthy Garu, Hindu, aged 70 years, residing at D.No.39-92-32, Lakshmi Nivas, Kamakshi Nivas, Kamakshinagar, Visakhapatnam.
5.Attili Appalaswamy S/o late Ramana Murthy, Hindu, aged 50years, Advocate, residing at D.No,36-92-32, Lakshmi Nivas, Kamakshi Nagar, Visakhapatnam.
6.Velangi Malla Mamba, W/o late Appala Raju Garu, Hindu, aged 53 years, House hold duties, residing at –Rest do-
7.Kumari Attili Atchuta Annapurna, D/o late Peda Venkata Ramana Murthy, Hindu, aged 50 years, residing at –Rest do-.
8.Attili Rama Vathi, D/o late Peda Venkata Ramana Murthy Garu, Hindu, aged 48 years, residing at –Rest do-.
9.Kumari Attili Lakshmivathi, D/o late Venkata Ramana Murthy, Hindu, aged 48 years, residing at –rest do-.
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10.Attili Veera Madhava Narasamamba, W/o Sarat, Hindu, aged 55 years, residing at Pendurthi, Visakhapatnam.
11.Kakarlapudi Udaya Kumari, W/o K.B.Padmanabha Raju, Hindu, aged 58 years, residing at Raja Towers, VUDA Colony, Maddila Palem, Visakhapatnam.
12.Raja Vatsavayi Prasanthi Devi, W/o late R.V.Gajapathiraju, Hindu, aged 56 years, Residing at Swathi Enclave Plot No.101, Krishna College Road, Maddilapalem, Visakhapatnam.
13.Pusapati Usha, W/o P.Prabhakara Varma, Hindu, aged 49 years, residing at D.No.29-8-9/A, Lalitha Colony, Visakhapatnam. (Defendants 11 to 13 were added as per orders in I.A.3083/2009 dated.28.10.2010, consequent on the death of the deceased 1st plaintiff).
Defendants
This suit coming on 19.12.2022 for final hearing before me in the presence of Sri Y.Sujatha and P.Murali Gopal, Advocates for plaintiffs 2 to 5, Plaintiff No.1 died, and of Sri P.Srinivas Advocate for defendants No.1 to 3 and Defendants No. 4, 6 to 13 remained exparte, and of Smt. B. Rajya Lakshmi defendant No.5, having heard both sides and stood over till this day for consideration, this court delivered the following:
J U D G M E N T
1.This suit is filed by the plaintiff seeking the relief of partition of schedule property into two equal shares, and to allot one such share to the plaintiffs..
Originally the suit was filed by Bhupathiraju Gowrisankara Raju, as he died during the pendency of the suit, his children being legal heirs were brought on record as Plaintiffs No. 2 to 5.
2.The case of the plaintiffs, in brief, is that:
One Athili Appalaswamy and his wife Narasayyamma had two sons by name Peda Venkata Ramanamurthy and Viswanadha Rao, whose children are now on record as D1 to D3 and D4 to D10 respectively. The said
Narasayamma executed a registered Will dated.07.09.1973, bequeathing one ½ share of the property in survey No.29/1, in favour of her two sons, as stated above, and the remaining ½ share was allotted to Bhupathiraju
Gowrisankara Raju, i.,e 1st plaintiff herein for the services rendered by him as an Advocate in the litigation pertaining to her properties.
3.Later on 03.01.2002, Peda Venkata Ramana Murthy executed Will dated.03.01.2002, bequeathing his properties in favour of his children, in which there is a clear mention about the Will dated.07.09.1973, and 3 O.S.10/2009 VII ADJ/VSP subsequently his daughter filed O.S.66/2002 on the file of VII Additional
District Judge, Visakhapatnam for partition, but the said suit was disposed off,
directing the plaintiff therein to secure sufficient evidence and to file fresh suit for partition. However, injunction was granted restraining defendant No.2 in the said suit, who is none other than the 5th defendant in this suit, from alienating the property and that in the said suit, a commissioner was appointed to localize the property, who on executing warrant filed his report stating that, there is vacant land, in survey No.29/1 and 2.
They further state that, though the deceased plaintiff requested the sons of Narasayyamma to partition the property during their life time, they kept postponing, so after their death he requested Defendant No.5, for partition of the property, being a co-owner and in joint possession of the schedule property, but Defendant No.5 did not heed to his requests. Hence he happened to file the above suit, as pending the suit the original plaintiff died his legal heirs were brought on record as plaintiffs No.2 to 5, who have pleaded that their father executed Will dated.02.12.2005, in favour of plaintiffs bequeathing his properties that includes the plaint schedule property and that he did not provide anything to his three daughters, and that under the Will only his four sons were given property, because the daughters were given sufficient property at the time of their marriage, hence against them no relief is sought as such, impleaded them as proforma parties shown as D11 to D13. Hence, the plaintiffs say that as they succeeded to the schedule property under the Will executed by the deceased 1st plaintiff, they are entitled to partition.
4. Defendants 1 to 3 being the wife and children of A.Viswanadha Rao, filed written statement stating that the plaintiff, was never in possession of the property as co-owner and he being the Advocate claiming partition is against the principles of natural justice, and that he never probated the Will dated.07.09.1973. Hence, the suit for partition is not maintainable.
5. Defendant No.5 filed written statement denying the plaint averments states that, the deceased 1st plaintiff to grab the property of this defendant 4 O.S.10/2009 VII ADJ/VSP who is the absolute owner of the schedule property by influencing his
Grandmother with the help of her two sons, got executed the Will dated.07.09.1973, which is the result of influence, fraud and coercion. Infact,
A.Narasayyamma had four sons and two daughters, the first and third sons separated long back, the other two sons, and Venkata Ramana Murthy his father, and Viswanadha Rao, are also residing separately and as they were not taking care of Narasayyamma she cancelled the Will dated.07.09.1973, by executing cancellation deed dated.26.08.1974, and executed another Will, in favour of this defendant on 09.08.1977, and basing on the said Will it is this defendant who has been in possession and enjoyment of the property without any interruption
6.He further states that, as the alleged Will was executed in the year 1973, the present suit basing on the said Will, being filed 36 years, after it’s execution is hit by limitation, and that the deceased plaintiff never demanded this defendant to partition the property as alleged, infact the deceased plaintiff was Advocate for his Grandmother Narasayamma, who had paid him his fees for the services rendered by him, but now, as the property is worth in crores, taking advantage of the death of his father, and father of D2 and D3, has now filed this suit of grab the schedule property.
7. He further says that, there are disputes between him and his father since 1981, and taking advantage of the same, the deceased plaintiff brought into existence the alleged Will said to be executed by his father on 03.01.2002, which is also the result of fraud and coercion and that no such
Will was ever executed by his father, infact O.S.193/1981, was disposed on 20.03.1989, in which the deceased 1st plaintiff was the counsel of the defendants 1 to 8 in the suit, and he had knowledge about the execution of
Will said to be executed by Narasayyamma and also about her death, but still this suit came to be field leisurely in the year, 2009, which on the face of it is hit by limitation.
8.Apart from the above averments by way of additional written statement the 5th defendant, further says that, even otherwise as per the 5 O.S.10/2009 VII ADJ/VSP commissioner report filed in O.S.66/2002, the entire area was build up so there is no vacant property as prescribed in the plaint schedule, as such, even on that score the suit is not maintainable.
9.Basing on the above pleadings, the following issues were settled for trial:
1. Whether the Will dated.03.01.2002 is true, valid and binding on the defendants?
2. Whether the Will dated.09.08.1977 executed in favour of the 5 th defendant is true, valid and binding on the plaintiffs?
3. Whether the plaintiff are entitled for partition of the suit schedule property as prayed for?
4. Whether there is cause of action to file the suit?
5. To what relief?
6. Whether the Registered Will dated.07.09.1973, executed by late A.Narasayamma in favour of the deceased 1 st plaintiff and her two sons late Viswanadham and Peda Venkata Ramana Murthy bequeathing the plaint schedule property under the said Will in favour of the deceased 1 st plaintiff is true, valid and binding on the defendants?
7. Whether the Will executed by late Smt.Atili Narasayamma on 07.09.1973, was under undue influence, fraud and coercion or not?
8. Whether the suit is barred by limitation or not?
9. whether the schedule in the suit was true or not?
10.During the course of trial on behalf of the plaintiffs P.W.1 to P.W.3 were examined and Exs.A.1 to A.10 were marked and on behalf of defendants
D.W.1 to D.W.4 were examined and Exs.B.1 to B.13 were marked.
11.Heard both sides.
12. Issue Nos. 2, 6 and 7:
2. Whether the Will dated.09.08.1977 executed in favour of the 5 th defendant is true, valid and binding on the plaintiffs?
6. Whether the Registered Will dated.07.09.1973, executed by late A.Narasayamma in favour of the deceased 1 st plaintiff and her two sons late Viswanadham and Peda Venkata Ramana Murthy bequeathing the plaint schedule property under the said Will in favour of the deceased 1 st plaintiff is true, valid and binding on the defendants?
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7. Whether the Will executed by late Smt.Atili Narasayamma on 07.09.1973, was under undue influence, fraud and coercion or not?
Issued No.6 & 7 being interconnected to each other relating to the self same document dated.07.09.1973, and Issue No.2 being incidental to the 2 issues, all the 3 issues are answered together for sake of convenience.
As the original plaintiff filed the suit claiming for partition basing on the
Will dated.07.09.1973 said to be executed by Atilli Narasayyamma in his favour bequeathing ½ share in survey No.29/1, answering on these issues at the first instance would be just and proper.
a) The case of the original plaintiff as could be understood from the pleadings and reproduced by his son examined as PW.1 is that, Atilli
Narasayyamma being absolute owner of the schedule property had executed the original of Ex.A2, bequeathing one ½ share in survey No.29/1, in an extent of Ac.1.40cents, in favour of deceased plaintiff and the remaining half share was allotted to her two sons Venkata Ramana Murthy and Viswanadha
Rao, i.,e the father of D2 & D3, D4 to D10 respectively, now the written statement averments makes it clear that, there is no denial of the relationship between the parties interse, or that the schedule property is the absolute property of Atili Narasayyamma, who is the Grandmother of the defendants 2 to 10. Now, the document being relied upon the plaintiff, being an Will it has to be established in accordance with Section 68 of Indian
Evidence Act. Not only the deceased plaintiff even his legal heirs who came on record to continue the suit also relied upon Will marked as Ex.A9 dated.02.12.2005, said to be executed by their deceased father bequeathing his properties that includes the schedule property herein, but in the opinion of this court, if the entitlement of the deceased plaintiff, under Will relied upon by him is established, as legal heirs of the deceased plaintiff, invariably the benefit of such proof would accrue to plaintiffs 2 to 5, irrespective of they proving Ex.A9 Will.
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However, they on their part had examined PW.2 stating to be one of the attestors of Ex.A9 Will, in accordance with Section 68 of Indian Evidence
Act, and this witness had testified to the extent of his role as first attestor of
Ex.A9, and the other witness examined was PW.3 who is also an attestor of
Will, but the Will marked as Ex.A10, dated.03.01.2002, which is the Will said to be executed by the father of very own D5, and this document was filed only to show that there is reference about Ex.A2 Will, in Ex.A10 as well, so in proof of execution of Ex.A10, the first attestor of the said document was examined as PW.3 who ofcourse, had substantiated the contention of plaintiffs in letter of spirit, but the examination of these witnesses who are no way concerned with the original of Ex.A2, basing on which the suit came to be filed, does seem to be an act of beating around bushes by the plaintiffs for they establishing the execution of Ex.A2, would suffice their claim, instead of examining or producing any evidence i.e., the kind produced now, for which the plaintiffs have taken this court to Ex.A1 proceedings which is the copy of decree and judgment in O.S.193/81, that was dismissed on 20.03.1989,
14.A perusal of Ex.A1 shows it, to be a suit filed by the children of Athili
Chinna Venkata Ramana Murthy, who is undisputedly one of the four sons of
Athili Narasayyamma, and it was pleaded in the said suit that, two sons of
Narasayamma by name Athili China Venkata Ramana Murthy and Narayana
Rao, have separated from the family long back, that is why, to the exclusion of the said two sons Ex.A2 Will, came to be executed by Narasayyamma in favour of her, other two sons, i.e., the fathers of D2 to D10, and in this suit, filed by the children of Chinna Venkata Ramana Murthy, the fathers of D2 to
D10 herein and the Grandchildren of Narasayamma i.e., children of her daughters were parties to the suit, and the said suit for partition came to be dismissed for the court believing the Will dated. 07.09.1973, marked as
Ex.B9, in the said suit. Infact a categorical finding was given holding Will dated.07.09.1973, which is Ex.A2 herein to be valid and binding on the parties to the suit and the claim of plaintiffs therein over the schedule properties in the suit was vitiated. So, the plaintiffs herein plead that when 8 O.S.10/2009 VII ADJ/VSP once Ex.A2 was found to be true and valid by a competent Court, and admittedly no appeal being preferred against the said judgment, the findings and the judgment in O.S.193/1981, having attained finality, now again coming to this suit, the plaintiffs cannot be burdened to prove the self same document again, hence Ex.A2 being already established to be valid under, which the deceased plaintiff was conferred with ½ share in survey No.29/1, i.e., to an extent of Ac.0.70 cents, and the defendants being co-owners of the remaining half share the property has to be partitioned.
15.However, dispelling the contentions of plaintiffs claim D5, pleads that the finding in O.S.193/81, is not binding on him, as he is not a party to the suit, as such, having recourse to Section 41 of Evidence Act, and supplementing his arguments on the said lines he relied upon a Judgment reported in 2003(5) ALT 265(D.B) between B.Narasimha Reddy and
another vs Bhaskara Rao Joshi and another wherein it was held that
“only the judgment of the courts exercising probate, matrimonial
admiralty or insolvency jurisdiction only are judgments in rem, and
rest of the judgments binds only parties to the suit but not persons
who are not parities to the suit”. Ofcourse, D5 was right in arguing having recourse to Section 41 of Evidence Act, but can he being the son of one of the defendants in the said suit claim such immunity? Even otherwise, may be the Judgment is not binding on him, as he was not directly a party to the suit, but it does not take away the findings regarding the Will marked as
Ex.A2, herein which was marked as Ex.B9, in O.S.193/81, when such findings are binding on the parties to the said suit, which includes the father of D5, who himself propounded Ex.B9 in the said suit, may be the judgment in the said suit, does not bind him i.e., D5, but not the findings, as regards the documents propounded by his own father, even otherwise being the son of
D1 in O.S.193/81, who had even stated that disputes arose between him and his father in the year 1981, if at all, he had the Will i.e, Ex.B3 in his name executed by his grandmother, he would have certainly putforth his own unregistered Will Ex.B3, in the said suit, but for the reasons best known to 9 O.S.10/2009 VII ADJ/VSP him, he did not interfere with the said proceedings, and no where he stated that, he has no knowledge about the said suit, indeed for the defendant No.5 himself pleading about the said suit, in his written statement, even this Court would not have knowledge about O.S.193/81, as reference of it was never made by the plaintiffs, ofcourse undisputedly the deceased plaintiff herein was the counsel for defendants in O.S.193/81, when admittedly according to
D5, his Grandmother executed Will, Ex.B3 in his name in the year 1977, and the referred suit came to be filed four years thereafter, had he was in possession of his unregistered Will, said to be executed by Narasayyamma, he would not have remained tight lipped, and let the proceedings go on, without he interfering with his Will had it was true and he was having it, as on the year,1981. Even otherwise, the suit went on for 8 long years, and came to be disposed off in the year 1989, and during the said period according to
D5 himself, he was a practicing advocate, so by any stretch of imagination, he cannot even plead that he had no knowledge about the said suit, so having knowledge about the said suit, in which suit his own father pleaded about the Ex.A2 Will, and got an favorable finding regarding the said Will, which was never challenged, now leisurely D5 cannot say, that the said judgment does not bind him, as he is not a party to the suit, as this Court already said above, may be the judgment in the said suit, does not bind him, as he is not directly a party to the suit, but when it is binding on the parties to the said suit, the findings regarding Will dated.07.09.1973, holding it to be true valid and binding on the parties to the said suit, which finding remained unchallenged having attainted finality, it remains that Ex.A2 was already held to an genuine document by a competent authority, so now because after 10 years of the said judgment, a suit came to be filed and simple because some person no way connected with the document, in the said suit, i.e., D5 herein, is disputing the finding on the document in the said suit, which is already held to be a genuine document, which findings was never challenged or set aside by any appellant authority, the findings being final because some Tom
Dick and Harry disputes the said finding it does not obligate the person, who 10 O.S.10/2009 VII ADJ/VSP is a beneficiary under the said document having proved it to the satisfaction of the Court to prove it again. This Court opines that, as already the original of Ex.A2 was held to be a true, and a valid document executed by Atili
Narasayyamma and one of the beneficiaries under the Will i.e., deceased plaintiff, being vested with right pursuant to such findings, who had been enjoying the property for over 20 years, now because D5 is disputing the document it does not take off the record, the findings regarding the said Will, and make this plaintiffs to again prove the Will, in accordance with Section 68 of Indian Evidence Act. Indeed the burden is on D5, who says that, the said
Will stood cancelled and subsequently another Will which is marked as Ex.B3 came to be executed in his favor, by Athili Narasayyamma, to establish such cancellation, and the execution of Ex.B3 in his favor, now what is the proof he had let in as against registered Will Ex.A2, regarding which a concrete finding about it’s genuiness by an competent authority came to be passed long ago, is by way of examining DW.3, the scribe of Ex.B2, and D.W.4 one of the attestors of Ex.B3.
16.Now defendant No.5 himself having pleaded that a Will has to be proved in accordance with section 68 of Indian Evidence Act, to his convenience had given a go-bye to the mandatory provision and had examined the scribe of Ex.B2, instead of attestor and still wants this court, to believe it’s execution under which Ex.A2 is said to be cancelled which on the face of it is neither admissible nor sufficient proof to believe Ex.B2, that apart as per the recitals of Ex.B2, it came to be executed as the sons of
Narasayyamma were not taking proper care of her, so she cancelled the Will i.,e Ex.A2, who infact had under Ex.A2, apart from bequeathing property to sons, also bequeathed ½ share of property in favour of, deceased plaintiff, if at all, Ex.B2 was executed out of dissatisfaction towards her sons, what is the reason for cancelling the bequeath made in favour of deceased plaintiff? so the said blanket mention of cancelling the Will in it’s entirety, to the understanding of this Court is surrounded with suspicion, which D5 has to dispel in which he failed. Even otherwise for not examining the attestor of 11 O.S.10/2009 VII ADJ/VSP
Ex.B3, but examining DW.3 stated to be a person who can identify the signature of the scribe, instead of examining a person who can identify the signature of attestor in accordance with Section 69 of Evidence Act, no purpose of D5, could be served by examining D.W.3 to prove Ex.B2, and but for D.W.3 there is no other evidence to prove it’s execution, so with this fragile piece of evidence, it is improper to believe Ex.B2, and if Ex.B2 is not believed the document Ex.A.2 regarding which a finding was already given by a competent authority holds good, consequently the document relied upon by
D5 marked as ExB3, has no legs to stand, because unless the cancellation of earlier Will is established, Ex.B3 has no sanctity in the eye of law, the fallacy of the case is according to D5, and his fragile piece of evidence which ofcourse was disbelieved by this Court, i.,e Ex.B2, because Narasayyamma was dissatisfied with the treatment meted out by her sons, she happened to execute Ex.B2, but the very own witness of D5 i.e., DW.4, stated that,
Narasayyamma during her lifetime was residing with her sons, if she was not happy with her sons and her dissatisfaction was to the extent that she had even cancelled the Will executed in favor of her sons, and while residing with her sons during her last days had executed a Will in favour of D5, appears to be a figment of imagination of D5, because it was never pleaded by D5 that
Narasayyamma was under his care and custody for being ill-treated by her sons so for not only Ex.B2, being proved to be executed by Narasayyamma, which keeps alive Ex.A2 document, but also in view of the suspicious circumstances surrounding Ex.B3, the Will in favour of D5, cannot be believed to be executed by Narasayyamma, had the said document was genuine, then it would have been exhibited by D5, either in Ex.A1 suit proceedings or atleast in O.S.66/2002 filed by his own sister, in which he conveniently remained exparte, had his Ex.B2 & ExB3 were true then he would have produced the said piece of document in O.S.66/2002, itself. So summing up these aspects the only conclusion to which this court could arrive at, is that,
Ex.A2, Will dated 07.09.1973, is valid having been executed Atili
Narasayyamma out of her free Will and is binding on the parties to the suit.
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16.In view of this court’s categorical finding on the said issue needless to say the Will marked as Ex.B3 standing in the name of D5, has to be shown doors out. Accordingly issues 6 & 7 are answered in favour of plaintiffs, whereas issue No.2 is answered against the defendant.
17. Issue No.1:
Whether the Will dated.03.01.2002 is true, valid and binding on the defendants?
Infact the Will dated.03.01.2002, marked as Ex.A10 was introduced by the plaintiffs only to show that it was executed by the father of D5 which had a recital about Ex.A2, and the plaintiffs on their part to prove it’s execution have examined the attestor of it as PW.3, and this witness no doubt had supported the plaintiffs contention regarding the said Will, but when the beneficiaries under the Will are not party to the suit, any finding as to it’s validity is of no avail, as already stated above the purpose of filing Ex.A.10 is only to show that there is a reference about Ex.A2 Will in it, when independent of this document, the court had come to a conclusion that Ex.A2 will is true and valid and executed by Narasayyamma out of her free Will and wish, the proof or otherwise of Ex.A10 has no consequence. Ofcourse there was an observation about Ex.A10, in O.S.66/2002, as could be understood from the copy of judgment marked as Ex.A4, that because the said document was not filed in the said suit, the suit met with dismissal, but no findings on the Will was given, for it not being presented before the court and proved, in accordance with law, so even if it is found to be true, has no bearing on the suit, as basing on the said Will no relief is claimed, but however as the issue came to be framed regarding it’s validity, and as of Ex.A10 Will was proved by examining one of the attestors of it, it can be held that it is a valid document. Accordingly issue No.1 is answered.
18. Issue No.8:
Whether the suit is barred by limitation or not?
None among the defendants except D5 have denied Ex.A2, as DW.1 admitted that, Ex.A2 was executed by her Grandmother and she was informed by her father many a times that under, Ex.A2, deceased plaintiff 13 O.S.10/2009 VII ADJ/VSP was given a share which shows that, not only the beneficiaries i.e., sons of
Narasayyamma under Ex.A2, but also their family members have knowledge and acknowledged the share of deceased plaintiff under in the said Will.
Ofcourse the suit came to be filed by the deceased plaintiff almost 36 years, after the execution of Ex.A2 Will, and it is owing to the said long gap the defendant No.5 had come up with a plea that the suit is hit by limitation.
19.When admittedly even in O.S.193/81, the deceased plaintiff was not a party to the suit, despite being beneficiary under Ex.B9 Will therein i..e, Ex.A2 herein, and as the suit came to be filed seeking partition by one of the branch of sons of Atilli Narasayyamma, the beneficiary of the Will i.e., Venkata
Raman Murthy and Viswanadha Rao, contested the suit, pleading about the
Will Ex.A2 and obtained an order in their favour, but never there was denial of the right of the deceased plaintiff herein, and the plaintiffs also did not dispute the right of deceased plaintiff in the said suit, for that matter even subsequent thereto also, indeed in O.S.66/2002, also there was no denial of the right of deceased plaintiff herein, but the daughter of Venkata Ramana
Murthy claimed partition against her father and her brother i.e., D5 herein, so even there, the right of deceased plaintiff was not disputed, and it is evident from the plaint pleadings that, after the death of Pedha Venkata Raman
Murthy and Viswanadha Rao, in the year 2003 and 2006 respectively, he requested D5 for partition being lone surviving beneficiary under Ex.A2, and because D5 did not heed to his request, the suit came to be filed in the year, 2009. As such, there is no limitation described for filing a partition suit, and as and when the right /share of a entitled party is disputed, a suit for partition crops up, when the plaintiffs plead that subsequent to the death of
Visawanadha Rao, in the year 2006, D5 denied the right of deceased plaintiff and refused partition, it was for the first time that, as a beneficiary under
Ex.A2, his right and entitlement was denied, so the suit, being filed in the year, 2009, even if calculated from the year 2006, i.,e after death of
Visawanadha Rao, cannot be said to be hit by limitation, even otherwise there is no prescription of time, for filing a suit for partition, so by any stretch of 14 O.S.10/2009 VII ADJ/VSP imagination the argument of D5 that, the suit is hit by limitation is unsustainable, as such, the judgment relied upon by D5 on the aspects of limitation not aiding him is not discussed.
The Judgment relied upon him by D5, on the aspects of limitation are
1. 1978 Supreme Court (ALT) 620
2. AIR 2008 Supreme Court, (B63)
3. AIR 2006 Supreme Court, 1786.
20. Issue No.9
4. Whether there is a cause of action to file this suit?
9. Whether the schedule in the suit was true or not?
It is argued by D5 that, as per commissioner report filed in O.S.66/202, which was marked Ex.A5, though there is a built up area over survey
No.29/1/2, yet there is a vacant space of 1800 sq yards, on the east in survey
No,29/1 and 2, now the defendant No.5 taking advantage that major part of land in survey No.29/1 and 2, is having build up area, cannot allege that, the schedule property as scribed in the schedule is not found on ground, in which event if a decree is passed, execution would be difficult so on that score also the suit is liable to be dismissed which is absolutely untenable, as in a suit for partition it is only the entitlement of shares of the parties to the suit will be decided, and the actual partition will take place basing on the final decree being passed, wherein also the shares as allotted in the preliminary decree will be partitioned among parties by taking into consideration mets and bounds, so merely because there are certain constructions over the land in schedule Survey Number, that itself does not take way the entitlement of deceased plaintiff to the share in the schedule property by virtue of Ex.A2.
So, the contentions of D5 that suit schedule is not correct lacks merits.
Accordingly this issue is also answered against the defendant.
21.Issue No.4
Whether there is cause of action to file the suit?
In view of this court’s findings under issue Nos.6 & 7 holding Ex.A2 be a valid document under which the beneficiary deceased plaintiff was given ½ 15 O.S.10/2009 VII ADJ/VSP share in survey No.29/1, and as his request for partition basing on Ex.A2 was not acceded, by D5, he happened to file this suit, seeking partition does vest him with cause of action to file the suit, and merely because he is not a family member he cannot be debarred from claiming partition as Ex.A2 Will vests him with right of partition. Accordingly this issue is also answered against defendant.
22. Issue No.3:
Whether the plaintiffs are entitled for partition of the suit schedule property as prayed for?
In view of this court’s findings under above issues, categorically holding that the deceased plaintiff being a beneficiary under Ex.A2 will executed by Narasayyamma is entitled to ½ share in survey No.29/1, and as the remaining ½ share was bequeathed to Venkata Ramana Murthy and
Viswanadha Rao, which shares on their death, devolved upon their legal heirs, certainly as co owners the claim of plaintiffs for partition is absolutely maintainable. Accordingly this issue is answered in favour of plaintiffs.
23. Issue No.5:
In the result, the suit is decreed passing preliminary decree dividing the schedule property into two equal shares, allotting one such share to the plaintiffs, and the remaining one share to the branch of Atilli Pedha Venkata
Rama Murthy i.e, D1 to D3, and to the branch of A.Viswanadha Rao, i.,e D.4 to D10. In the circumstances of the case, no order as to costs.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in open court, this the 30th day of January, 2023.
Sd/-G.Anandi
VII Addl. District Judge, Visakhapatnam.
16 O.S.10/2009 VII ADJ/VSP
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiffs For Defendants
P.W.1 : Bhupathi Raju Varma Babu. 1. D.W.1: Matta Bhagya Lakshmi P.W.2: D.V.V.S.S.A.N. Ramalinga Raju. 2.D.W.2: Attili Appala Swamy. P.W.3: Gollapudi Varaha Lakshmi Narasimha Murhty. 3.D.W.3: B.Rama Swamy. 4.D.W.4: M.Hanumantha Rao.
DOCUMENTS MARKED
For plaintiffs:
Ex.A.1/20.03.1989: Certified Copy of Decree and Judgment in O.S.193/1981, on the file of I Additional Senior Civil Judge, Visakhapatnam. Ex.A.2/07.09.1973: Certified Copy of Registered Will. Ex.A.3/19.08.2007: Certified Copy of Decree and Schedule in O.S.66/2022 on the file of VII Additional District Judge, Visakhapatnam. Ex.A.4/: Certified Copy Judgment in O.S.66/2022. Ex.A.5/27.04.2006: Certified Copy of Commission Report in O.S.66/2022. Ex.A.6/17.04.2005: Certified Copy of letter written by the licensed surveyor. Ex.A.7: Certified Copy of Evidence Affidavit of P.W.1 in O.S.66/2022, along with cross examination. Ex.A.8: Certified Copy of written statement in O.S.66/2022 filed by 1st defendant. Ex.A.9/02.12.2005: Original Will executed by the deceased plaintiff executed in favour of the plaintiffs 2 to 5. Ex.A.10/03.01.2002 : Certified Copy of registered Will.
For Defendants:
Ex.B1/25.07.1981 : Certified Copy of Decree in O.S.1011/1981. Ex.B2/26.07.1977: Cancellation of earlier Will by Late A.Narasayamma W/o Appalaswamy. Ex.B3/09.08.1977: Will Executed by late A. Narasayamma in favour of D5. Ex.B4/26.08.1974: Promissory Note executed by A.P.V.Murthy in favour of his Mother (A.Narasayamma). Ex.B5/26.08.1974: Promissory Note executed by Sri A. Viswanadha Rao in favour of A.Narasayamma(mother).
Ex.B6/30.09.1977: Death Certificate of A.Narasayamma issued by the Municipal authorities. Ex.B7/05.09.2003: Death Certificate of A.P.V. Murthy. Ex.B8/07.10.2006: Death Certificate of A.Viswanadha Rao. Ex.B9/04.12.2004: Petition for appointment of Commissioner along with warrant by the VII Additional District Judge, in
O.S.66/2022.
17 O.S.10/2009 VII ADJ/VSP
Ex.B10/03.09.2003: Order in O.S.26/1998 filed by against the sons of A.Narasayamma. Ex.B.11/21.02.2009: Letter by D5 to plaintiff. Ex.B.12/27.02.2009: Reply by plaintiff to D5(original) including order. Ex.B.13/21.02.2009: Postal receipt and acknowledgment.
Sd/-G.Anandi
VII Additional District Judge, Visakhapatnam.
18 O.S.10/2009 VII ADJ/VSP
Date of Presentation: 21.07.2008 Date of Filing: 21.09.2009 Date of representation 08.08.08/ 08.09.08/05.11.08/12.12.08
IN THE COURT OF THE VII ADDL. DISTRICT JUDGE: VISAKHAPATNAM
Present: Smt. G.ANANDI, VII Addl. District Judge, Visakhapatnam.
Monday, the 30th day of January, 2023
ORIGINAL SUIT No. 10/2009
Between:
1. Bhupathiraju Gowrisankara Raju, S/o Late Jogi Jagannadha Raju, Hindu, aged 90 years, Senior Advocate Residing at D.No.29-18-8, Lalitha Colony, Dabagardens, Visakhapatnam(Died).
2. Bhupathiraju Butchi Venkata Padmanabha Raju, S/o of Late Sri Gowrisankararaju, Hindu, aged 60 years, residing at D.No.29-10-8, Lalitha Nagar, Dabagardens, Visakhapatnam.
3. Bhupathiraju Jogi Jagannadharaju, S/o Late Gowrisankararaju, Hindu, aged 54 years, residing at D.No.29-10-8, Lalitha Colony, Dabagardens, Visakhapatnam.
4. Bhupathiraju Seetharama Raju, S/o Late Gowrisankararaju, Hindu, aged 52 years, residing at D.No.29-10-8, Lalitha Colony, Dabagardens, Visakhapatnam.
5. Bhupathiraju Varma Babu, S/o Late Bhupathiraju Gowrisankararaju, Hindu, aged 50 years, residing at D.No.29-10-8, Lalitha Colony, Dabagardens, Visakhapatnam. (Plaintiffs 2 to 5 are added as legal representatives of the deceased 1st plaintiff as per orders in I.A.3083/2009, dated.28.10.2010) …Plaintiffs And:
1. Attili Satyamamba, W/of late Viswanadham Garju, Hindu, aged 60 years, residing at D.No36-92-33, Burma Camp, Kancharapalem, Visakhapatnam.
2.Draksharapu Venkata Triveni, W/of Tulasi Rao Garju, Hindu, aged 43 years, House hold duties, residing at D.No.36-92-37, Kapparada, Kanchara Palem, Visakhapatnam.
3.Matta Bhagya Lakshmi W/of late Surya Prakasarao Garu, Hindu, aged 41 years, residing at -Rest do-.
4.Attili Kamakshamma, W/o late Peda Venkata Raman Murthy Garu, Hindu, aged 70 years, residing at D.No.39-92-32, Lakshmi Nivas, Kamakshi Nivas, Kamakshinagar, Visakhapatnam.
5.Attili Appalaswamy S/o late Ramana Murthy, Hindu, aged 50years, Advocate, residing at D.No,36-92-32, Lakshmi Nivas, Kamakshi Nagar, Visakhapatnam.
19 O.S.10/2009 VII ADJ/VSP
6.Velangi Malla Mamba, W/o late Appala Raju Garu, Hindu, aged 53 years, House hold duties, residing at –Rest do-
7.Kumari Attili Atchuta Annapurna, D/o late Peda Venkata Ramana Murthy, Hindu, aged 50 years, residing at –Rest do-.
8.Attili Rama Vathi, D/o late Peda Venkata Ramana Murthy Garu, Hindu, aged 48 years, residing at –Rest do-.
9.Kumari Attili Lakshmivathi, D/o late Venkata Ramana Murthy, Hindu, aged 48 years, residing at –rest do-.
10.Attili Veera Madhava Narasamamba, W/o Sarat, Hindu, aged 55 years, residing at Pendurthi, Visakhapatnam.
11.Kakarlapudi Udaya Kumari, W/o K.B.Padmanabha Raju, Hindu, aged 58 years, residing at Raja Towers, VUDA Colony, Maddila Palem, Visakhapatnam.
12.Raja Vatsavayi Prasanthi Devi, W/o late R.V.Gajapathiraju, Hindu, aged 56 years, Residing at Swathi Enclave Plot No.101, Krishna College Road, Maddilapalem, Visakhapatnam.
13.Pusapati Usha, W/o P.Prabhakara Varma, Hindu, aged 49 years, residing at D.No.29-8-9/A, Lalitha Colony, Visakhapatnam.
(Defendants 11 to 13 were added as per orders in I.A.3083/2009 dated.28.10.2010, consequent on the death of the deceased 1st plaintiff).
…Defendants This suit is filed by the plaintiff seeking the relief of partition of schedule property into two equal shares, and to allot one such share to the plaintiffs..
Value of the suit for the purpose of Court Fee and Jurisdiction is Rs.1,09,26,300/- being the 3/4thmarket value on the ½ share Rs.2,92,36,800/- and a court fee of Rs.1,48,126/- is payable, but a court fee of Rs.200/- is paid under Section 34(1) r/w Sch.I Art.I(b)&(c) of APCF and SV Act.
This suit coming on 19.12.2022 for final hearing before me in the presence of Sri Y.Sujatha and P.Murali Gopal, Advocates for plaintiffs 2 to 5, Plaintiff No.1 died, and of Sri P.Srinivas Advocate for defendants No.1 to 3 and Defendants No. 4, 6 to 13 remained exparte, and of Smt. B. Rajya Lakshmi defendant No.5, having heard both sides and stood over till this day for consideration, this court doth order; and
PRELIMINARY DECREE
1. that the suit be and the same is hereby preliminary decreed partitioning the plaint schedule property into TWO EQUAL SHARES and; 20 O.S.10/2009 VII ADJ/VSP
2. that out of two such shares, the plaintiffs 2 to 5 be and are hereby entitled for allotment of ONE SUCH SHARE;
3.that the defendant No’s D1 to D3 i.e., Branch of Atilli Pedha Venkata Rama Murthy, and D4 to D10 i.e., Branch of A.Viswanadha Rao be and are hereby entitled for allotment of remaining ONE SUCH SHARE by metes-and-bounds of the plaint schedule property;
3. that there be no order as to costs.
(Copy of the plaint schedule is appended hereto)
Given under my hand and the seal of the court, this the 30th day of January, 2023.
VII ADDL. DISTRICT JUDGE
VISAKHAPA TNAM
MEMORANDUM OF COSTS
FOR PLAINTIFFS: FOR DEFENDANTs:
Stamp on Vakalat: Rs. 2-00 Stamp on plaint : Rs. 200-00 No costs memo filed. Stamp on process : Rs. 520-00 Stamp on petitions : Rs. 10-00 Advocates Fee : Rs. 25,000-00
Costs Certified: Rs. 25,732-00
Sd/-G.Anandi
VII ADDL. DISTRICT JUDGE
VISAKHAPATNAM
Certified that the decree is properly drafted.
Chief Administrative Officer VII Addl. District Judge Court Visakhapatnam.