IN THE COURT OF THE XIII ADDITIONAL DISTRICT
JUDGE: VIJAYAWADA
PRESENT: SRI G. KABARDHI
XIV Addl. District Judge, Vijayawada. FAC XIII Addl. District Judge, Vijayawada.
Monday, this the 23rd day of March, 2020.
O.S.No. 281 of 2010
Between:
1. Kodali Jagadeeswara Rao, S/o late Satyanarayana, Hindu, a/a 67 years, Retired Employee, residing at Patamata, Vijayawada, Kodalivari Veedhi, Vijayawada.
2. Smt. Godugunuri Srivalli W/o Srinivasa Rao, Hindu, a/a 32 years house wife, Rep., by her registered G.P.A. Holder and mother Smt. Jyothi W/o Jagadeeswara Rao, Hindu, a/a 54 years, House wife R/o D.No.67313, Kodalivari street, Patamata, Vijayawada. (Added as per
orders in I.A.802/2016 dt.3.10.2017). ... Plaintiffs
And
1. Potluri Lavanya W/o Gutta Srikar, Hindu, a/a 28 years, Housewife, R/o D.No.415/13, Krishnalanka, Garikapativari Veedhi, Vijayawada.
2. Potluru Sudharani W/o Meka Amarendra, Hindu, a/a 30 years, R/o D.No.415/13, Krishnalanka, Vijayawada.
3. Edupuganti Swetha W/o Nagendrasai Mukharjee, Hindu, a/a 28 years, Housewife, R/o Srinagar Bank Colony, Sai Sowdha Apartment, D.No.5413/30/3, Route No.5, Vijayawada.
4. Vamulapalli Savithri W/o Nagabhushanam, Hindu, a/a 55 years, D.No.415/12, Garikapativari Veedhi, Krishnalanka, Vijayawada13.
5. Garikapati Subhash Chandra Bose (died), S/o Subbayya, Hindu, a/a 60 years, Srinivasa Nagar, Bank Colony, Saisowdha Apartment, D.No.5413303, Bus Route No.5 road, Vijayawada. (amended as per docket orders dt.20.02.2018).
6. Vemulapalli Nagabhushanam, S/o Venkateswara Rao, Hindu, a/a 65 years, Business, R/o Garikapativari Veedhi, D.No.415/13, Krishnalanka, Vijayawada13.
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7. Potluri Madhusudhana Rao, S/o,Hindu, a/a 60 years, Business, R/o D.No.415/13, Garikapativari Veedhi, Krishnalanka, Vijayawada.
8. V. Yedukondalu, S/o, Hindu, a/a—years, R/o D.No.415/14, Garikapativari Veedhi, Krishnalanka, Vijayawada13. … Defendants
The suit came for final hearing before me on 20.01.2020 in the presence of Sri P. Seshu Mohan, Advocate for the 1st Plaintiff; Sri V. Ram Prasad, Advocate for 2nd plaintiff; and of Sri B. Sada Siva Sastry, Advocate for Defendants 1 to 4, 6 & 7; and the 5th defendant died during the pendency of the suit and the 8th defendant remained exparte; and upon perusing the material on record and considering the connected material papers and submissions of both side counsel and the matter having stood over till this day for consideration, this court delivered the following:
//J U D G M E N T//
This is a suit for declaration, declaring that the gift deeds dt.25.06.2010 purported to have been executed by Kodali Tulasamma are void and not binding on the 1st plaintiff as they were brought into existence by the defendants by playing fraud and undue influence over
Kodali Tulasamma and for permanent injunction restraining the defendants from ever interfering with the peaceful possession and enjoyment of the 1st plaintiff, as well as the permanent injunction restraining the defendants 1 to 4 to create any mortgage or sale deeds in favour of third parties till disposal of the suit and for costs.
2.The brief averments of the plaint is that –
(i) The plaintiffs and defendants are distantly related to each other. The 1st plaintiff is the only son of
Kodali Satyanarayana and Savithri of Patamata, 3
Vijayawada. The father of the 1st plaintiff is the only son to his parents namely Kodali Ramakotaiah and
Tulasamma. The paternal grandfather of 1st plaintiff namely Ramakotaiah died prior to 1934, when the father of the 1st plaintiff was at a tender aged boy. The paternal grandmother of the 1stplaintiff namely Kodali
Tulasamma brought up the father of the 1st plaintiff and performed his marriage with Savithri.
(ii) The defendants 1 and 2 are sister and daughter of the 7th defendant. D.3 is the daughter of 5th defendant. 4th defendant is the wife of 6th defendant. D.8 is the relative of D.6. The paternal grandmother of the 1st plaintiff had an elder brother by name Garikapati
Subbayya, who had two sons namely Satyanarayana and 5th defendant and three daughters who are 4th defendant, wife of 7th defendant and another daughter belonging to Angaluru Village in Krishna District. Thus the 5th defendant is nephew of Kodali Tulasamma and 4th defendant is niece of Kodali Tulasamma and defendants 1 & 2 are daughter of niece of Kodali Tulasamma. D.3 is the daughter of nephew of Kodali Tulasamma.
(iii) It is averred that Kodali Tulasamma brought up her only son with love and affection and performed his marriage with Savithri. Likewise Kodali
Tulasamma had brought up the 1st plaintiff with much love and affection and performed the marriage of the 1st plaintiff also. The 1st plaintiff, his wife and his children lived together at Patamata along with father of the 1st plaintiff and Kodali Tulasamma till about 10 years ago.
The 1st plaintiff worked as a Teacher in Krishna Zilla 4
Parishad and retired from service in the month of June, 2009. In or about in the year 2000, the 1st plaintiff had been transferred to Muppalla Village in Chnandralapadu
Mandalam of Krishna District and began residing there along with his wife and children. As such the parents of the 1st plaintiff and Kodali Tulasamma lived together at
Patamata. The father of the 1st plaintiff died on 06.07.2001. After retirement, the 1st plaintiff settled at
Hyderabad.
(iv) It is further averred that even though the 1st plaintiff had been residing in various places, but he used to attend to his grandmother Tulasamma once in a fortnight to look after her needs and Tulasamma has got very much love and affection towards him. After the death of father of the 1st plaintiff on 06.07.2001 the paternal grandmother of the 1st plaintiff became seriously ill due to bereavement and she became mentally ill.
Added to it her age also played a major role in deterioration of the health of Tulasamma and almost she became dependent upon the 1st plaintiff. At that time, the 1st plaintiff requested Tulasamma to come and live along with him. But Tulasamma refused by saying that she has to spend her life at Patamata by sharing the memories of her husband and her son. Because the 1st plaintiff has been residing in faraway places, the defendants who are mostly residents of Vijayawada also used to visit Kodali Tulasamma at times due to distant relationship.
(v) During her life time, Kodali Tulasamma acquired properties in different survey numbers under 5 registered sale deeds with her own money and money of her son Satyanarayana. Besides the said Agricultural land Kodali Tulasamma has two residential houses.
Taking advantage of her illiteracy, old age and loneliness, the defendant entertained an intention of grabbing away the entire property of Kodali Tulasamma by exercising fraud and undue influence. In the beginning of 2006,
Kodali Tulasamma scented the evil intention of the defendants and informed the same to the 1st plaintiff and handover all her documents of Pattadar Passbook and
Title deed book issued in her favour in respect of the agricultural lands at Peadpulipaka Village to the 1st plaintiff asking the 1st plaintiff to take possession of those properties after her death.
(vi) The said Kodali Tulasamma became immobile since the beginning of 2009 and virtually confined to bed due to her old age and deceases like arthritis, vertigo and high blood pressure. One of the tenants of Kodali Tulasamma used to attend Kodali
Tulasamma from the beginning of 2009. The 1st plaintiff has been visiting her at regular intervals and making necessary arrangements to her as usual. By 2009, the said Kodali Tulasamma was aged about 98 years and suffering from old age problems. The defendants, who used to visit her are in a fiduciary relationship with her and in a position to dominate her will by exercising fraud and undue influence. Kodali Tulasamma died intestate on 17.09.2010. The 1st plaintiff performed the obsequies of Kodali Tulasamma and PeddaKarma. After performance of ceremonies, the 1st plaintiff informed the tenants that he became the absolute owner of all the 6 properties of Kodali Tulasamma and asked them to pay rents to him alone. The tenants informed the 1st plaintiff that the 3rd defendant and her father 7th defendant informed that the 3rd defendant became absolute owner of the house by virtue of gift deed executed by Kodali
Tulasamma.
(vii) Thereafter, the 1st plaintiff approached the
SubRegistrar’s officer at Patamata and enquired about the documents brought into existence by the defendants and came to know that the 1st defendant in collusion with the other defendants brought into existence of registered gift deed dated 25.06.2010 vide Doc. No.3503/2010 of
Patamata SubRegistry in respect of Ac.0.53 cents of wet land covered by R.S.No.45/3 and an extent of Ac.0.50 cents of wet land covered by R.S No.45/2 of Peda
Pulipaka Village in her favour, that the 2nd defendant in collusion with other defendants brought into existence of another gift deed on the same day vide Doc.
No.3504/2010 in favour of 2nd defendant in respect of
Ac.100 of wet land covered by R.S.No.45/1 of Pead
Pulipaka Village, that the 3rd defendant in collusion with other defendants brought into existence of registered gift deed on the same day vide Doc. No.3505/2010) in respect of Ac.100 of wet land covered by R.S No.44/1, 44/2, 45/1 and 115/2 of PedaPulipaka Village, that the 3rd defendant in collusion with other defendants brought into existence of a Regd. Gift deed dated 25.06.2010 vide
Doc. No.3507/2010 of Patamata SubRegistry in respect of 169.4 sq. yards of house site together with a house bearing door No.6739 of Patamata in her favour and that the 4th defendant in collusion with other defendants 7 brought into existence of a Regd. Gift deed dated 25.06.2010 (document No.3506 of 2010 of Patamata
SubRegistry in her favour in respect of Ac.100 of wet land covered by R.S No.115/2 of Peda Pulipaka Village.
The said Ac.403 cents of wet land covered by Document
No.3503, 3504, 3505 and 2506 of 2010 of Patamata Sub
Registry is described in detailed as Item No.1 in the plaint schedule and the property covered by Document
No.3507/2010 of Patamata SubRegistry is described the details as Item No.2 in the annexure Schedule being referred to hereinafter as Item No.1 & 2 of the plaint schedule property.
(viii) It is further averred in the plaint that the defendants, who are in a dominating position and fiduciary relationship with Kodali Tulasamma colluded together and brought into existence of document No.3503 to 3507 of 2010 of Patamata SubRegistry by playing fraud and undue influence over Kodali Tulasamma and as such they are avoid and not binding on the 1st plaintiff. Those documents purported to have been executed by Kodali Tulasamma were not executed with her free consent. If Kodali Tulasamma got knowledge of the contents of those documents, she would not have preferred to give almost all her properties to the defendants 1 to 4 who are distantly related to her by ignoring the 1st plaintiff and his son, who are near relatives to her. Kodali Tulasamma used to greet the son of the 1st plaintiff with utmost love and affection by expressing that her husband was born again in the shape of her great grandson to assist her in her old age.
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(ix) It is averred that the NonJudicial stamps alleged to have been purchased by Kodali Tulasamma herself on 24.06.2010 from Nerells Gyana Satya Venkata
Narayana, Kanuru, stamp Vendor of Kanur. It is unbelievable that Kodali Tulasamma, who was confined to bed, had been to Kanuru to purchase the stamps by herself. It is further averred that as per the plaint plan appended to the plaint, the defendants 1 to 4 never took possession of the same as to the schedule mentioned documents and Kodali Tulasamma used to be continued in possession till her death and after her death, the 1st plaintiff took possession of the same being nearest legal heir of Kodali Tulasamma as per Sec.15(1)(a) of the
Hindu Succession Act. Thus the 1st plaintiff has got absolute title and possession over the plaint schedule property.
(x) It is further averred that the defendants having waited till now gathering their support to take forcible possession of the schedule properties since 10 days and trying to execute binami sale deeds and mortgage deeds in favour of interested third parties with a view to create multiplicity of litigation and harass the 1st plaintiff. As such, the 1st plaintiff is constrained to file this suit for declaration and for other reliefs.
3.Defendants 4 to 7 filed written statement and the same is adopted by D.1 to D.3 and additional written statement is also filed by D.5 and the same was adopted by all the other defendants. The written statement averments of D.4 to D.7 go to show that they denied all 9 the allegations mentioned in the plaint and it is further averred that –
(i) To the best knowledge of these defendants, the deceased Kodali Tulasamma has no love lost towards the plaintiff and it is known to one and all that late
Tulasamma had kept the 1st plaintiff at a safe distance and not to allow him to interfere with her person and properties. The plaintiff and his father were divided prior to 05.04.1980 and they were in possession of their respective properties in accordance with the partition list in earlier oral partition and separate possession prior to 05.04.1980. Thus, it is clear that plaintiff and his father were living separately at least from 05.04.1980, as it is evidenced by the partition list of even date Notarized by
Sri A.S.Ramarao on 11.10.1980.
(ii) It is further averred that on 12.10.1980 there was a family dispute resolution agreement between
KodaliTulasamma,KodaliSatyanarayan,
Sayanarayana’s son Jagadeeswararao, the plaintiff herein and Jagadeeswararao’s mother and Satyanarayana’s wife
Savitramma. The said document was stated to have been signed by all the parties and Notarized by late Sri
A.S.Rama Rao on 12.10.1980. Both the originals of the aforementioneddocumentsi.e.,partitionlist dt.05.04.1980 and family disputes resolution agreement
dated 12.10.1980 are with the plaintiff and the
defendants are having only xerox copies. In the event of plaintiff’s failure to produce the original documents, the defendants will produce the xerox copies available with them as secondary evidence as the defendants are not in possession of the original documents.
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(iii) It is averred that to the knowledge of these defendants, plaintiff has no visiting terms with deceased
Tulasamma and Kodali Tulasamma was largely relying upon these defendants, as plaintiff has no visiting terms with her. The further allegation that Kodali Tulasamma purchased the property allegedly with also the funds of
Satyanarayana appears to have been made with a mala fide intention to come forward with an untenable contention at trial that the plaintiff’s father
Satyanarayana had also supplied the consideration for the purchase of property in 1996. The said contention, if any, is not only untenable but also illegal and cannot be countenanced at all. Since Tulasamma’s only son
Satyanarayana who admittedly died in 2001 never whispered about his contributing money for purchase of the property by Tulasamma on 03.05.1996 in
Pedapulipaka Village, the contention now by the plaintiff that his late father contributed money cannot be heard at all. That apart, it is submitted that the documentary evidence in the case establishes that plaintiff’s father and plaintiff were living separately for a long time there before i.e., prior to 1996 and the allegation made by the plaintiff cannot be allowed to be made in the pleadings that too with ulterior motives.
(iv) It is further averred that late Kodali
Tulasamma in fact decided to settle the remaining property i.e., remaining agricultural land and another house property in favour of Smt. Garikapudi Kana
Durga Devi and could not do so on the date of execution of the registered gift deeds on 25.06.2010. Subsequently, late Tulasamma, in a sound and disposing state of mind 11 executed a Will in respect of the remaining extent of agricultural land at Pedapulipaka Village and the house property in Patamata on 31.08.2010 in favour of
G.K.Durga Devi. Late Tulasamma had voluntarily set her hand on the said Will in the presence of the attestors, requested the attestors having acknowledged the execution of the Will, to attest the same and the attestors, having seen the testator signing the Will, in the presence of the Testator set their hands as attestors to the said Will. The Will dated 31.08.2010 executed by
Kodali Tulasamma, after her demise on 17.09.2010, became operative and binding. The legatee viz.,
Smt.Garikapudi Kana Durga Devi thereafter i.e., after 17.09.2010 took possession of the bequeathed properties and since then she is in possession and enjoyment of the said property bequeathed to her without any hindrance.
(v) It is further averred that Kodali Tulasamma had no deceases like Arthritis, Vertigo and high blood pressure. The plaintiff admittedly is challenging the settlement deeds executed by Kodali Tulasamma in document Nos.3503 of 2010 to 3507 of 2010 dated 25.06.2010 which means that the execution of the gift deeds is not disputed. Thus, from out of the Ac.5.14 cents of land possessed by Kodali Tulasamma, the gift deeds admitted to have been registered by her were to an extent of Ac.4.03 cents. The remaining land must be of
Ac.1.11 cents, but on ground it was only Ac.1.05 cents. It is worthy to note that Kodali Tulasamma, by executing gift deed in document No.3507 of 2010 had already gifted house property situated in Patamata with shed therein to 3rd defendant in the suit. Thus, by the date of death of 12
Kodali Tulasamma, she was owner of only Ac.1.05 cents of agricultural land and one house property at Patamata.
Late Tulasamma did not die intestate on 17.09.2010 and she executed a Will on 31.08.2010 in a sound and disposing state of mind bequeathing the remaining agricultural landed property at Pedapulipaka and house property in Patamata to Garikapati Kanaka Durga Devi wife of Subash Chandra Bose, which is valid.
(vi) It is further averred that after the death of
Tulasamma, as plaintiff happens to be the paternal grandson, he was permitted to stay in the house of G.
Kanaka Durga Devi and the permissive possession will never blossom into absolute possession and title. Mere holding of the title deeds which were admitted to have been given by late Tulasamma, in the pleadings of the plaintiff, will not in any way create title, interest or possession of the property covered by the said title deed.
The plaintiff never even spent a single penny for conducting the obsequies of Kodali Tulasamma which fact is known to all the people in the locality. The death of Kodali Tulasamma after 82 days of execution of registered documents will not be a suspicious circumstance at all to doubt the free consent of Kodali
Tulasamma on the date of execution and registration of the documents.
(vii) It is further averred that the plan filed along with the rough sketch is the result of imaginative skills of the plaintiff and the said rough sketch is not in consonance with the existing land on ground in tune with Field Measurement Book. It is further averred that 13 the suit is bad for misjoinder of parties and nonjoinder of necessary parties. The plaintiff is not at all entitled to any relief. The suit deserves to be dismissed by awarding compensatory costs u/s 35A of C.P.C.
4.In the additional written statement filed by the 5th defendant, it is further averred that –
(i) The 2nd plaintiff represented by GPA Holder is not a proper and necessary party to the suit and the relief claimed by the 2nd plaintiff along with the 1st plaintiff subject to the result of the suit. Item No.2 of the plaint schedule property is covered by document No.3507 of 2010 dt.25.6.2010 and it was settled in favour of
Eedpuganti Swetha the 3rd defendant in this suit. When the original plaintiff sought a declaratory relief, the original plaintiff will never become owner of the plaint schedule property item No.2 till such declaratory relief is given by the Hon’ble Court. The suit is pending in
O.S.281/2010 from the date of suit i.e., from 2.11.2010
and it is still undisposed.
(ii) The 2nd plaintiff in the suit claimed that a settlement deed was executed by the 1st plaintiff in favour of the 2nd plaintiff on 24.3.2012 on the file of Sub
Registrar’s Office, Patamata and delivered possession of the same to the 2nd defendant on the even date. It is also the case of 2nd plaintiff that she has executed and registered a General Power of Attorney in favour of her agent Kodali Jyothi and the Agent is in possession of the property. Admittedly, the said registered settlement deed vide Doc.No.2115/2012 dt.24.03.2012 had come into existence in respect of an immovable property which is directly involved in the pending suit in O.S.281/2010 14 and as such the document is hit by the doctrine lis pendence and the 2nd plaintiff will not acquire any right, title or interest by virtue of the said document and the said document, if any, is subject to the result of the pending suit in O.S.No.281/2010.
(iii) It is further averred that the 2nd plaintiff will not and could not get any right in the immovable property which is directly involved in O.S.281/10 by virtue of the registered Doc.2115/2012. Thus the second plaintiff is not a proper and necessary party in this suit and even in her absence since the original relief claimed by the 1st plaintiff is with reference to a declaratory relief, the reliefs which the 2nd plaintiff may claim in this suit is not grantable ignoring the decree or judgment that is likely to be made in O.S.281/2010. The settler of item
No.2 in favour of the 2nd plaintiff himself has no possession as held by the Hon’ble High Court and the 2nd plaintiff cannot arrogate possession in favour of herself by virtue of the settlement deed.
(iv) Thus, the 2nd plaintiff is not a proper and necessary party to this suit. The original document said to have been executed by the original plaintiff now styled
as 1st plaintiff in favour of the 2nd plaintiff vide Doc. No.
2115/2012 is not placed on record and as such this defendant is not in a position to traverse with the recitals made therein. The 2nd plaintiff or her registered General
Power of Attorney Agent cannot give evidence in respect of anything happened prior to 24.03.2012 on which date the registered document in No.2115/2012 has come into existence and finally prayed to dismiss the suit.
5.Basing on the above pleadings, the following issues are framed for trial on 01.11.2013:
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(i) Whether the suit Gift Deeds dt.25.06.2010 are brought into existence by playing fraud and undue influence against a donor and thereby the plaintiff is entitled for declaration as prayed for? If So?
(ii) Whether the plaintiff is entitled for consequential relief of permanent injunction restraining the defendants from interfering with his possession and enjoyment of the plaint schedule items 1 & 2?
(iii) To what relief? Subsequent to the adding of 2nd plaintiff and on the basis of filing of additional written statement of D.5, the Court framed the following Additional Issues on 31.10.2017:
(i) Whether the 1st plaintiff has a right to execute the settlement deed dt.24.03.2012 in respect of item No.2 of the plaint schedule property in favour of the 2nd plaintiff?
(ii) Whether the said settlement deed dt.24.03.2012 is void being hit by the lis pendence?
(iii) Whether the 2nd plaintiff is the proper and necessary party to the proceedings?
But, as per the docket order dt.13.08.2018, the
additional issue No.(i) framed on 31.10.2017 is deleted
and the additional issue No.(ii) framed on 31.10.2017 is amended as per docket order dt.13.08.2018 as follows:
Additional issue No (ii): Whether the settlement
deed dt.18.08.2011 and 24.03.2012 are void and hit by lis pendence?
In addition to the above the court framed the following issues also on 13.08.2018:
(i) Whether the suit is bad for nonjoinder of Kodali Savitramma?
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(ii) Whether the suit is bad for misjoinder of 8th defendant?
Thus, in total, the following are the issues framed finally for trial by this Court:
(i) Whether the suit Gift Deeds dt.25.06.2010 is brought into existence by playing fraud and undue influence against a donor and thereby the plaintiff is entitled for declaration as prayed for? If so,
(ii) Whether the plaintiff is entitled for consequential relief of permanent injunction restraining the defendants from interfering with his possession and enjoyment of the plaint schedule items 1 & 2?
(iii) Whether the settlement deed dt.18.08.2011 and 24.03.2012 are void and hit by lis pendence?
(iv) Whether the 2nd plaintiff is the proper and necessary party to the proceedings?
(v) Whether the suit is bad for nonjoinder of Kodali Savitramma?
(vi) Whether the suit is bad for misjoinder of 8th defendant?
(vii) To what relief?
6.On behalf of the plaintiffs, PWs.1 to 10 are examined and Exs.A.1 to A.26 are marked. On behalf of the defendants, DWs.1 & 2 are marked, Exs.B.1 to B.9 and Exs.X.1 & X.2 are marked.
7.Both counsels have submitted their written arguments in support of their contentions.
ISSUE NOs.(iii), (iv), (v) & (vi): 17
8.It is seriously contended by the defendants that pending suit, the 1st plaintiff executed settlement deed in favour of the 2nd plaintiff, it is lis pendence and that too he argued that when the plaintiffs filed the suit for declaration that the gift deeds which are executed by
Kodali Tulasamma in favour of D.1 to D.3 are not binding on him, i.e., the 1st plaintiff has no absolute right over the property and when he sought for declaration, he has no right to execute the settlement deed in favour of his daughter. So the 2nd plaintiff is unnecessarily added as a party and till the rights of the 1st plaintiff are declared, the 1st plaintiff will not have any right to execute the settlement deed.
9.It is true, there is force in the arguments advanced by the learned counsel for the defendants.
But, as per the orders in I.A.802/16 dt.3.10.2017, the 2nd plaintiff was added as a party to the suit and that order became final. When the orders are became final, when the 2nd plaintiff has already added as a party to the suit proceedings, if the 1st plaintiff has got right over the suit property, then only the 2nd plaintiff will get the right. If the 1st plaintiff will not get any right over the suit property or the suit was dismissed, then automatically the 2nd plaintiff will not get any right over the property covered under the settlement deed executed by the 1st plaintiff. So, the suit is not bad for nonjoinder and misjoinder of necessary party of the 2nd plaintiff, so also how Savitramma is necessary party is also not explained by the defendants in their pleadings or in their evidence.
So, issue Nos.(iii), (iv), (v) and (vi) are answered in favour of plaintiffs.
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ISSUE NOs.(i) & (ii):
10.Originally the suit is filed by the 1st plaintiff declaring that the gift deeds dt.25.06.2010 vide
Doc.No.3503 to 3507 of 2010 purported to have been executed by Kodali Tulasamma are void and are not binding on the 1st plaintiff as they were brought into existence by the defendants by playing fraud and undue influence over Kodali Tulasamma. Pending the suit, the 1st plaintiff executed a settlement deed in favour of 2nd defendant in respect of Item No.2 of the plaint schedule property dt.24.3.2012, and thereby the 2nd plaintiff is none other than the daughter of the 1st plaintiff, was impleaded as a party to the suit. The 1st plaintiff is questioning the gift deeds/ settlement deeds said to have been executed by Kodali Tulasamma and it is specifically contended by the 1st plaintiff that they are void as they were brought into existence by the defendant by playing fraud and undue influence over Kodali Tulasamma. In such a case, the burden is heavily lies on the plaintiffs to prove that there was a fraud and undue influence was played over Kodali Tulasamma by the defendants. These aspects are to be established by the plaintiffs.
11.The 1st plaintiff is examined as PW.1 and filed his affidavit inchief, reiterating the plaint averments.
Through him, Exs.A.1 to A.19, ExA.23 & A.24 are marked. While coming to the cross examination, he deposed that –
(i) He filed certified copies of gift deeds executed by Kodali Tulasamma under Exs.A.9 to A.13.
He admitted that the 2nd photograph in Form 32A in
Ex.A.9 is that of Kodali Tulasamma, who is his 19 grandmother. He also admitted that thumb impression underneath the photographs is written as that of Kodali
Tulasamma. He admitted that after 2002, in every registered document, the claimants and executants photographs must be affixed along with the thumb impression under Rule 32A of Registration Act. He admitted that he has executed a gift deed in favour of his wife Kodali Jyothi on 18.8.2011 and there is a form 32A enclosed to the document. Ex.B.1 is the xerox copy of registered gift deed executed by him in favour of his wife.
He admitted that the staff of the SubRegistrar Office of concerned will take photographs with their cameras to be affixed on Rule 32A form under Registration Act. So also the finger prints of executants and claimant will be taken by the staff of the SubRegistrar’s Office on the finger print machine of that office and they will be transmitted on Rule 32A statement enclosed to the registered document.
(ii) The documents shown to him under
Ex.A.16 to A.18 are Field Measurement Books and he filed them to show that the boundaries of agricultural landed property of Tulasamma are false. He deposed that in Ex.A.16, the extent is Ac.3.24 cents; in Ex.A.17, the extent is Ac.3.39 cents; in Ex.A.18, the extent is mentioned as Ac.1.37 cents. The total extent under
Ex.A.16 to A.18 is Ac.8.00 cents. There is no proof of document to show that Kodali Tulasamma brought him up and also there is no wedding card to show that his marriage was performed by Tulasamma and Rama
Kotaiah.
(iii) PW.1 denied the suggestion that from his childhood Tulasamma hated him and Tulasamma while 20 he was in service necked out of the house after beating him in the presence of all the relatives. He further denied the suggestion that on 5.4.1980, he himself and his father executed partition list in support of earlier oral partition and he denied the suggestion that there are no cordial relations in between him and his father. So also there is no cordial relationship between Tulasamma and his mother Savithramma. He also denied the suggestion that he, his father Satyanarayana, his mother
Savitramma and his grandmother Tulasamma entered into a Family Dispute Resolution Agreement on 11.10.1980 and they have appended their signatures in the presence of A.S.Ramarao, Notary Advocate on the even date. Several suggestions are put to him in respect of the Family Dispute Resolution Agreement. He denied the suggestion that it was mentioned in Family Dispute
Resolution Agreement that he and his father partitioned and entered into a partition list in the evidence of oral partition.
(iv) PW.1 deposed that he do not know, whether he has signed as an identifying witness for signature of executant who is his father on 10.11.1980 in connectionwithregistrationofsaledeed
Doc.No.6315/1980. He deposed that he got it mentioned in para8 of his chief affidavit that though he and his father partitioned their properties and executed partition lists dt.5.4.1980, they continued to live with common mess till he was transferred to Muppalla Village. He denied the suggestion that in the Family Dispute
Resolution Agreement, the burden of maintaining his grandmother was fixed to his father and the burden of maintaining his mother is fixed on him. He denied the 21 suggestion that the said agreement also recites that his father and mother are living separately from long time.
He denied the suggestion that he is in possession of the originals of notarized partition list and also notarized
Family Dispute Resolution Agreement and he is purposefully withholding the same. He denied the suggestion that he himself and his parents and grandmother lived together in Patamata till 2000.
(v) PW.1 deposed that by the date of death of
Tulasamma, she was aged about 97 or 98 years. D.1 &
D.2 are the daughters of deceased brother’s daughters of
Tulasamma. D.3 is the daughter of deceased son’s daughter of Tulasamma. D.4 is the niece of Tulasamma.
5th Defendant G.S. Bose is the nephew of his grand other.
6thdefendant Vemulapalli Nagabhushanam is the husband of his grandmother’s niece, so also 7th defendant is the husband of niece of his grandmother.
8th defendant is not related to them, but he is related to
D.5. Since 8th defendant is an attestor in Exs.A.9 to
A.13, he was made as a party. He deposed that he do not remember whether he sold an immovable property to
Smt. Vemuri Bharathi under Doc. No.6319/1980. His father did not sell any property to others in the year 1980 and he did not sign as attestor. His father never filed a suit against his grandmother for partition in respect of the properties purchased by Tulasamma. He denied the suggestion that all the properties were purchased by
Tulasamma with her own funds and his father never contributed anything towards sale consideration in the documents obtained by Tulasamma from her vendors.
(vi) PW.1 deposed that his grandmother delivered him the original title deeds Exs.A.5 to A.8 in the 22 year, 2006. Tulasamma died on 17.9.2010 and she also delivered Exs.A.2 to A.4 to him in the year 2006. As she does not require ration, she handed over the ration card to him. He do not remember whether there were any entries on Ex.A.2 ration card between 2006 and 2010, the year in which Tulasamma died. He admitted that there are no entries in Ex.A.3 Pattadar Pass Book of
Tulasamma between 2006 and 2010. He denied the suggestion that after the death of Tulasamma, Exs.A.1 to
A.8 were taken possession by him and that he is speaking falsehood that he was given those documents in the year 2006.
(vii) PW.1 deposed that he filed Ex.A.19 receipt books to show that S. Varalakshmi, the tenant paid rents to him. He deposed that he do not know whether the defendants have filed rent receipt books into the court.
He denied the suggestion that the suit is not maintainable since his grandmother Tulasamma executed the registered settlement and Will voluntarily in sound and disposing state of mind. He deposed further that Ex.A.23 is addressed to his wife Jyothi by SRO and he is not the applicant to issue Ex.A.23. After going through Ex.A.23, Kodali Tulasamma has not purchased the stamp.
12.Kodali Venkateswara Rao, who is the 3rd party to the suit, is examined as PW.2 and he deposed that –
(i) He knows the Plaintiff. The plaintiff’s paternal grandfather by name Kodali Rama Kotayya and his father by name Dasaradha Ramaiah are own brothers and they are the children of Kodali Seshayya. He further got mentioned in the affidavit that Ramakotaiah died long ago when the father of plaintiff was tender aged boy. The 23 paternal grandmother of plaintiff Kodali Tulasamma brought up the father of plaintiff namely Satyanarayana and performed his marriage with Savithri. Duringthe life time of Satyanarayana, Satyanarayana, his wife Savithri, his mother Tulasamma and his son Jagadeeswararao and his daughterinlaw Jyothi used to live together at
Patamata, Vijayawada in their residential house. About 15 years ago, the plaintiff was transferred to Muppalla village in Chandralapadu Revenue Mandal, as such the plaintiff shifted his residence to Muppalla and used to reside there along with his wife and children, while the parents of the plaintiff and paternal grandmother of plaintiff used to reside in Patamata.
(ii) It is also mentioned in the affidavit of PW.2 that in the year 2001 the father of plaintiff died and after his demise, the mother of plaintiff and paternal grandmother of the plaintiff lived together at Patamata and the plaintiff used to visit them once in a week every
Sunday and in public holidays to look after their welfare.
After retirement of the plaintiff in the year 2009, he shifted his family to Patamata. After the death of her only son, Kodali Tulasamma became mentally and physically weak and later in the year 2010 Tulasamma died. About one year prior to her death, Tulasamma was bed ridden and mentally in an unsound condition. The plaintiff looked after her welfare by asking one of their tenants to attend to Tulasamma. It is also mentioned in his affidavit that only after Tulasamma was bed ridden, the plaintiff used to look after the properties of
Tulasamma by collecting rents from the tenants in respect of house properties and by personally carrying out agricultural operations in the agricultural lands 24 situated at Pedapulipaka village. The obsequies of
Tulasamma were performed by the 1st plaintiff with his own money and he also attended to the obsequies of
Tulasamma. After the final obsequies of Tulasamma, the plaintiff informed him that some of the defendants brought into existence of registered gift deeds in their favour from Tulasamma in respect of her properties.
(iii) While coming to the crossexamination, he deposed that he used to look after the legal affairs of
Margadarsi Chit Funds Pvt. Ltd., till his retirement and he deposed in thousands of cases in the Courts. He deposed that he is helping the plaintiff in this case as he is his cousin brother’s son. He deposed that he cannot identify the signatures of Kodali Tulasamma,
Satyanarayana, Jagadeeswara Rao and Savithri. But, he deposed that Kodali Tulasamma is thumb marks woman.
He did not file any medical certificates stating the mental and physical condition of Tulasamma was not well.
Ex.A.20 is his household card issued by M.R.O
Vijayawada. Several suggestions are put to him with regard to the case of the defendants and he denied to those suggestions.
13.Lella Ramu, who is 3rd party to the suit, is examined as PW.3 and got mentioned in his chief affidavit that his house is situated on the Southern side
House of Kodali Tulasamma. About 14 years ago, the father of the plaintiff died and after the death of father of plaintiff, the mother of plaintiff and paternal grandmother of plaintiff used to live together at
Patamata, while the plaintiff used to visit his mother and paternal grandmother once in a week and holidays. The 25 mother of the plaintiff and one of the tenants of Kodali
Tulasamma used to attend to Kodali Tulasamma during her last days. About one year prior to her death, Kodali
Tulasamma was bed ridden and mentally in unsound mind condition. The plaintiff performed the obsequies of
Kodali Tulasamma. While coming to the cross examination, he deposed that he did not file any document to show that he is residing in D.No.67312.
He has not seen any medical certificates of Kodali
Tulasamma. Ex.A.21 is a transport driving licence with badge No.20212 belongs to him is marked through him.
14.PW.4/Alapati Mohanarao, who is the 3rd party to the suit got mentioned in his affidavit that he cultivated the lands near by the lands of Kodali
Tulasamma in Pedapulipaka village upto 2009 i.e., one year prior to her death. Kodali Tulasamma used to cultivate her agricultural lands in Pedapulipaka village with the assistance of plaintiff and after Kodali
Tulasamma was bed ridden, her grandson i.e., the plaintiff was looking after the affairs of cultivation with the help of local labour. While coming to the cross examination, he deposed that he worked in Vijaya Dairy, along with him Vemulapalli Savithri, the defendant herein also worked. He was a Boiler Operator and he was under suspension for three years in Vijaya Dairy as there were irregularities in distribution of milk. He admitted that he was suspended in 1976 and respondentinstated in the year March, 1990. He admitted that he was not paid sustenance allowance during the period of suspension and he was reinstated in pursuance of orders made by the Labour Court, Guntur.
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He admitted that Vemulapalli Savithri prepared his salary bill. He denied the suggestion that as Vemulapalli
Savithri did not oblige in preparation of bills after his reinstate, thereby, he bore grudge against her. He never tried to mediate the dispute between the plaintiff and defendants.
15.One Papanna Savithri is examined as PW.5 and he deposed that she is a tenant in the Southern side portion of the house bearing D.No.6739 belongs to
Kodali Tulasamma for the last seven years by paying monthly rent of Rs.1500/. About one year prior to the death of Kodali Tulasamma, her grandson Kodali
Jagadeeswararao is collecting rents from her as
Tulasamma became ill and only after the death of Kodali
Tulasamma, Jagadeeswararao began issuing rent receipts to her as there is a dispute relating to the said house between plaintiff and others. While coming to the crossexamination, she deposed that there is no lease agreement between herself and Kodali Tulasamma and
Tulasamma never used to give rent receipts to her for the payment of rent and she did not cause enquiries as to who became successor of the properties of late
Tulasamma. So also she did not ask any rent receipts for the persons who claimed to be the owners after the death of Tulasamma.
16.Mavuri Lakshmi, who is also tenant of
Tulasamma is examined as PW.6 and she also got mentioned in her affidavit inchief of the same lines of
PW.5. During crossexamination, she deposed that the plaintiff used to pay the salary to her, so also Tulasamma 27 used to pay Rs.2000/ to her, but she did not receive any receipt from her and she worked as a maid servant.
17.Setti Varalakshmi/PW.7 is also deposed in the same lines of PW.5. While coming to the cross examination, she also deposed that there is no rent agreement between herself and Kodali Tulasamma.
Tulasamma never issued any rent receipts to her.
18.PW.8/Kodali Seshagirirao, who is related to
PW.1 deposed the same lines of chief affidavit of PW.2.
While coming to the crossexamination, he deposed that
PW.2 is his elder brother. There were no family disputes in between Kodali Tulasamma and plaintiff’s parents and he is not aware whether there is any partition list in between plaintiff’s father Satyanarayana and plaintiff.
Plaintiff and his father never used to discuss about the properties while they are selling. He deposed that he can identify the thumb impression of Tulasamma and signatures of plaintiff’s parents and plaintiff. He deposed that he know that there is no family dispute resolution agreement between Tulasamma, her son and plaintiff and plaintiff’s mother on 11.10.1980. But, he denied the suggestion that he know about the family dispute resolution agreement between Tulasamma and her son and the grandson i.e., plaintiff herein and wantonly deposing the same before this court that he is not aware of it. Through him Ex.A.22 I.D card is marked.
19.PW.9, the mother of the 2nd plaintiff, who is
GPA Holder for the 2nd plaintiff deposed that father of the 2nd plaintiff was in possession of schedule property covered under the gift deed executed in favour of the 2nd 28 plaintiff by virtue of inheritance after the death of the paternal grandmother, Kodali Tulasamma since
Tulasamma is holding the property by the time of her death and 1st plaintiff being the immediate successor being the only son to the son of Tulasamma had taken the possession of the property and the relief claimed is that the documents that were executed are not binding on the 1st plaintiff by claiming the existence of the inheritance right in the property. Since the 2nd plaintiff is presently residing in Switzerland, GPA was executed in her favour. In her cross examination, PW.9 deposed that the 2nd plaintiff has been residing in Switzerland for the past ten years. On the date of execution of alleged gift deed, the 2nd plaintiff was present before SubRegistrar,
Patamata. The 2nd plaintiff also executed GPA in her favour on the same day. She deposed that she do not know whether the property covered under alleged gift deed was physically delivered to the 2nd plaintiff as donee by her husband as donor before execution of registered
GPA in his favour by the 2nd plaintiff. She subscribed her signatures on the registered gift deed as identifying witnesses and attestor. Before executing the alleged gift deed in favour of 2nd plaintiff, PW.1 did not obtain any prior permission from any court including this court.
She deposed that she do not know whether the property covered under the registered gift deed was mutated or not in favour of 2nd plaintiff in any relevant record. The tax receipts from 2010 onwards till 28.11.2017 are in the name of E.Swetha i.e., D.3. The rest of the cross examination is with full of suggestions.
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20.PW.10 the SubRegistrar, Patamata is summoned by the plaintiff and through him Ex.X.1 non judicial stamp vendors sale register and stock register is marked and the relevant entry dt.24.6.2010 at page
No.58 in the name of Kodali Tulasamma which contains thumb impression is marked as Ex.X.2. Ex.A.21 is issued by him. Ex.A.23 is also issued by him. In his crossexamination, he deposed that there is every possibility of mixing the thumb impression in the black shade of Ex.A.23 certified copy. Ex.X.1 register is the register of 2010 submitted by the stamp vendor namely
Bharathi before SRO Patamata for due verification.
21.5th defendant – Garikapati Subhash Chandra
Bose is examined as DW.1. The 5th defendant filed his affidavit in chief, reiterating the entire written statement averments. Through him, Exs.B.1 to B.9 documents are marked. During his crossexamination he deposed that –
(i) He is an illiterate, even he is not in a position to read and he is giving his evidence not only on his behalf, but also on behalf of D.1 to D.4. There is no possibility for D.1 to D.4 to come to the Court and also to give evidence on their behalf. He also further deposed that he is giving evidence on behalf of remaining defendants except D.8. By the time of execution of
Ex.B.5 to B.9, the executants i.e., D.1 to D.4 were not present as they were out of India, but D.4 Savithri was very much present in Vijayawada by that time and she personally present before SRO for execution of Ex.B.9 registered settlement deed. But all the remaining registered settlement deeds were obtained on authorization. He admitted that in all Exs.B.5 to B.9 30 settlement deeds, he, Madhusudhanarao and
Nagabhushanam signed their respective signatures.
Madhusudhanarao and Nagabhushanam are his brother inlaws. In none of Exs.B.5 to B.8, there is no mention that the possession of schedule property was given to authorization holders.
(ii) DW.1 admitted that Ex.B.7 and B.8 settlement deeds which are in the name of Swetha/D3 do not contain authorization sheet authorizing him to receive the documents on her behalf. He deposed that
D.1 to D.3 are distant relatives of Tulasamma being grand children of her brother, whereas D.4 is the niece of said Tulasamma. He deposed that he was born in and brought up in Krishnalanka for 15 years and thereafter he was shifted his residence to Karanamgari veedhi,
Patamata till the death of his paternal aunt Tulasamma and thereafter he was shifted to Srinivasa Nagar, Bank
Colony, where he is residing in his own house. After the marriage of his daughter/D.3 she is residing with her husband at Chennai. The photograph of the donor which was available in the house by then was affixed on the page under Sec.32A of Registration Act of Ex.B.8 gift deed. He deposed that he do not know in which year the said photograph was taken and for what purpose it was taken.
(iii) DW.1 denied the suggestion that there is difference in size and appearance of thumb impressions said to have been belonged to the donor on 32 of
Registration Act Page and on sheet Nos.12 and 13 of
Ex.B.8 gift deed. He admitted that there is no mention in
Ex.B.8 gift deed that the original link documents were handed over to the done. The original pass books related 31 to the agricultural land of Ex.B.7 gift deed are not in his custody. All the registered documents registered by
Tulasamma were handed over to Vijayawada Karanam namely Narayana who in turn handed over the same to
Tulasamma, who in turn handed over the same to respective donees about the next day or the second day of registration. By that time D.1 & D.2 were present in
Vijayawada and came to Vijayawada from USA about the next day or the 2nd day of registration. The donor
Tulasama had only one son namely Satyanarayana, who is the father of 1st plaintiff.
(iv) DW.1 admitted that by the time of written statement, D.1 to D.3 are not in Vijayawada, but they were in their respective places and there is no specific instructions given by them in filing the written statement.
He also further deposed that they executed GPA in his favour and as such, he filed written statement without seeking their instructions. He deposed that D.4/Savithri is his younger sister and he is giving evidence even on her behalf. She is a retired employee even by 2010. She worked in Vijaya Milk Dairy Farm, Vijayawada. The donor Tulasamma though was aged 95 years by then, herself purchased the stamps from the scribe of the deeds who is also stamp vendor and affixed her thumb impressions. At that time he accompanied her and as such, he know the above facts.
22.6th defendant – Vemulapalli Nagabhushanam is examined as DW.2 and he filed his affidavit inchief reiterating the written statement averments almost the same evidence of DW.1. During his crossexamination, he deposed that – 32
(i) He worked as Junior Assistant in Vijaya
Dairy and he took voluntary retirement in 2003 and after his retirement he ran a chicken shop and dairy farm having cattle shed. But, all those activities were closed in the year 2009. 4th defendant Savithri is his wife, she was also employee in Vijaya Dairy and she also took voluntary retirement two or three years after his retirement. DW.1 died pending the suit; thereby he is giving evidence, since he is giving evidence on behalf of all other defendants except D.9. The remaining defendants will not be examined.
(ii) DW.2 further deposed that he know other than the present suit O.S.280/2016 is pending on the file of VII Addl. District Court, Vijayawda. D.4 i.e., his wife
Savithri filed her counter affidavit in I.A.523/2010.
Along with the said counter affidavit, she did not file the
Will dt.31.08.2010, which is marked as Ex.B.4. He deposed that he is not attestor of Ex.B.4 Will and he is giving evidence even with regard to Ex.B.4 will. He deposed that who are the attestors and who scribed
Ex.B.4 Will. The property covered under Ex.B.4 Will is not shown in the schedule and there is a separate suit in
O.S.280/2016 relating to the schedule property covered
under Ex.B.4 Will. Since the attestor Tulasamma, who executed Ex.B.4 will, also executed other gift deeds, they have filed Ex.B.4 Will. The husband of Tulasamma namely Ramakotaiah and his brothers partitioned their properties and he has gone through the partitioned of
Ramakotaiah and his brothers.
(iii) DW.2 further deposed that he do not know the property details and also executants who signed the said partition deed. Tulasamma disposed off all the 33 properties which fell to the share of her husband
Ramakotaiah and she gifted some properties to her grandson, sold away some properties to 3rd parties to meet the medical expenses for the treatment of her son
Satyanarayana i.e., the father of 1st plaintiff and remaining properties situated in Autonagar were acquired by the Government.
(iv) DW.2 also further deposed that there are no other legal heirs to the deceased D.5 other than her daughter Swetha who is already on record as D.3. He admitted that no relief is sought by plaintiff against him and other defendants i.e., D.5, D7 & D.8. In Ex.B.8 settlement deed, it is recited that the executants delivered the possession of said house. Even after execution of Ex.B.8 settlement deed, the executants did not shift to any other place. To his knowledge, there are three tenants in the house property covered under Ex.B.8 settlement deed.
(v) DW.2 deposed that he accompanied the executants Tulasamma since the purchase of stamp papers and registration of Exs.B.5 to B.9 deeds. He do not know where the stamp papers were purchased by the executants since the executants herself brought the said stamp papers. He admitted that there is no whisper in
Ex.B.8 settlement deed about the reason as to why the executant executed said deed in favour of the daughter of her nephew, excluding her own grandson i.e. 1st plaintiff.
But he adds that there are no cordial terms in between her and the 1st plaintiff. Tulasamma sold away the properties which are given to her as PasupuKunkuma at the time of marriage and the executants purchased the said properties covered under Ex.B.5 to B.9. Tulasamma 34 herself brought her photographs which are affixed on
Ex.B.5 to B.9, but he do not know from where she has secured the said photographs.
(vi) DW.2 admitted that there is no reference in
Exs.B.5 to B.9 settlement deeds that the schedule property was partitioned in between the 1st plaintiff and his father and also the said Tulasamma herself handed over the family dispute resolution agreement Ex.B.3. He admitted that by the date 25.6.2010 neither himself nor 5th defendant (DW.1) nor the settlers under Exs.B.5 to
B.9 are residing in the house of Tulasamma at Kodali vari street and approximately about 3 years prior to 2010,
D.1 & D.2 have been residing in USA and the marriage of
D.3 Swetha was taken place in 2004 and ever since of her marriage D.3 Swetha resided in her inlaws house.
(vii) DW.2 admitted that subsequent to the filing of the present suit, one Garikapati Sridhar claiming himself as agricultural tenant under Tlasamma and filed a Tenancy Case in ATC.3/13. He did not give his evidence as a witness in the said tenancy case. Prior to the said tenancy case, he, DW.1 and Madhusudhana Rao and D.7, on behalf of D.1 to D.3 gave police complaint against GPA of 2nd plaintiff namely Jyothi. He deposed that by virtue of said complaint, a report was called from
MRO through Collector to enquire in whose possession the property covered under Exs.B.5 to B.9 is and in turn the said MRO enquired and filed report.
(viii) He admitted that as per the said report, the property is in possession of PW.2 i.e., GPA of 2nd plaintiff. He do not know when D.1 & D.2 Sudharani and
Lavanya affixed their respective signatures on their respective settlement deeds dt.25.6.2010. Tulasamma 35 was given Ac.200 of land as Pasupu Kunkma under a gift deed, but he has not see the said deed and even he do not know when it was executed and the details of the said deed. The entire Ac.500 of land covered under
Ex.B.2 will and Exs.B.5 to B.9 settlement deeds was in single plot prior to execution of said deeds. The scribe of
Ex.B.5 to B.9 settlement deeds basing upon the old documents recited the respective boundaries in the said deed dividing Ac.5.00 at the rate of Ac.1.00 each on paper. Except on paper, the physical possession of the respective properties under Ex.B.5 to B.9 settlement deeds was not delivered. Through him, Ex.A.25 photograph is marked, in which the 1st plaintiff, dead body of his father and the family members of 1st plaintiff i.e., his mother, son and daughter are found. Ex.A.26 another photograph is also marked through him, in which Tulasamma, the wife of D.5 behind Tulasamma and the wife of Satyanarayana in blue saree are found.
He denied the suggestion that by the year 2001 itself, the said Tulasamma could not stand for herself without assistance as depicted in Ex.A.26 photograph.
Tulasamma herself handed over the said will on 31.08.2010 itself. But he again stated that it is handed over to DW.1.
(ix) DW.2 admitted that Ex.A.2 ration card was issued in the name of Satyanarayana as head of the family showing his family members including Kodali
Tulasamma and others. He admitted that there are no disputes nor differences nor ill feelings nor any civil or criminal litigations in between Kodali Tulasamma and her only son Satyanarayana. But, he deposed that there are civil disputes in between them with regard to 36 properties, but he do not know the nature of the disputes and the suit numbers etc. He also further deposed that on one occasion the grand children gave police report in
Autonagar Police Station against Kodali Tulasamma, but he do not know the crime number and other particulars.
The obsequies of Satyanarayana were performed by his son Jagadeeswararao i.e., 1st plaintiff. He admitted that after the death of Satyanarayana, his mother Kodali
Tulasamma died and as such the 1st plaintiff as her only grandson performed her obsequies. But he adds Kodali
Tulasamma informed them not to permit her grandson to perform her obsequies and requested them to perform the same, but on humanitarian grounds, they permitted the 1st plaintiff to do the said obsequies and they spent the expenses as the 1st plaintiff informed them that he has no money even to perform the same and that they filed the relevant receipts borne by them.
(x) DW.2 denied the suggestion that only to grab the properties of Tulasamma, they created the above story that there are no good terms in between
Tulasamma and the 1st plaintiff. He admitted that one
Rama Kotaiah is the husband of Kodali Tulasamma.
Except the said fact, he do not know the details of his family and even he did not see the said Rama Kotaiah at any point of time. He deposed hat he do not know who is
Kodali Venkateswara Rao, the brother of PW.8 and that he was examined as PW.2. He do not know enmity with
PW.8. Kodali Tulasamma lived in Patamata house as referred in Ex.A.2 ration card from the beginning till her death. He has no enmity with PW.3. On 17.9.2010 on which date Tulasamma died, DW.1 handed over the original documents i.e., Ex.A.3 to A.8 which are in the 37 name of Tulasamma to the 1st plaintiff only for verification, but he did not return the same.
(xi) DW.2 admitted that D.1 to D.7 including him are not the legal heirs of Kodali Tulasamma. He also admitted that Kodali Tulasamma lived with her son
Kodali Satyanarayana till her death. He admitted that there are no disputes in between D.1 to D.7, Kodali
Tulasamma and her son Satyanarayana and he do not know whether D.7 filed paper publication on 31.12.1991.
D.7 is his cobrother. He denied the suggestion that by the date of death of Kodali Tulasamma, she was having
Rs.20 lakhs cash which is derived from the agricultural income and also rental income and also denied the suggestion that Tulasamma by the date of death, she has no money is not correct. The rest of the cross examination is with full of suggestions.
23.The 1st plaintiff filed the suit for declaration that the gift deeds dt.25.6.2010 i.e., Exs.A.9 to A.13, which are certified copies of the gift deeds and originals of the gift deeds are marked as Ex.B.5 to B.9 are purported to have executed by Kodali Tulasamma are void and not binding on the 1st plaintiff as they were brought into existence by the defendants by playing fraud and undue influence over Kodali Tulasamma and consequential relief of permanent injunction and other reliefs.
24.The suit is filed against 8 persons. The main relief is against D.1 to D.3. D.1 & D.2 are the daughters of D.7. D.3 is the daughter of D.5. D.5 & D.7 are the attestors. The husband of 4th defendant is shown as D.6.
Pending the suit, D.5 died. 8th defendant is also common 38 attestor. D.4 is the niece and D.5 is the nephew and both of them are children of elder brother of Kodali
Tulasamma and they are nearest relatives. D.6 is the husband of D4 and D7 is the husband of the deceased niece and D.6 and D.7 are brothersinlaw of D.5. 1st plaintiff is only the grand son to Kodali Tulasamma born to her only son, who is the father of the 1st plaintiff and he was employed as Teacher in Government School and retired from service in the month of June, 2009.
25.The case of the defendants is that as the 1st plaintiff himself admitted the execution of the registered gift deed/ settlement deed by Kodali Tulasamma, there is no necessity for them to prove about the execution of the gift deed and as the originals of said gift deeds or settlement deeds were filed by the defendants, that itself is sufficient to prove that the conditions laid down under
Sec.123 of Transfer of Property Act was completed.
Thereby, the entire burden lies on the plaintiff to prove how the undue influence is made against Kodali
Tulasamma or how the suit maintainable and particularly, he also argued on several aspects, which I will discuss on the relevant point of time.
26.On behalf of the defendants, DWs.1 & 2 were examined. Pending cross examination, DW.1 died. 6th defendant is examined as DW.2. 5th defendant is examined as DW.1. D.5 filed written statement and the same was adopted by other defendants. D.1 to D.3 who are beneficiaries under Ex.B.9 to B.13 did not enter into witness box and they did not deny the contention of the plaintiffs.
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27.In the written arguments submitted by the counsel for the defendants, it is mentioned that where the plaint pleadings are grounded on the premise of fraud and undue influence, the details of fraud and undue influence with dates and with clarity shall be stated in the pleadings and shall be proved at trial. In so far as the plaint as filed by the sole plaintiff, except mentioning in para 8 by exercising fraud and undue influence and stating in para 9 that Kodali Tulasamma became immovable since the beginning of 2009 and virtually confined to bed due to her old age and deceases like
Arthritis, Vertigo and High Blood Pressure, nothing else in respect of details of fraud and undue influence were pleaded. It is further the pleading that one of the tenants of Kodali Tulasamma used to attend Kodali Tulasamma from the beginning of 2009, which destroys the case of the plaintiff. The averments in the plaint at para 9 to the effect that K.Tulasamma is an illiterate woman and devoid of any independent advice is not supported by any evidence. The pleadings further show that the defendant who used to visit Kodali Tulasamma are in a fiduciary relationship with her and in a position to dominate her will by exercising fraud and undue influence is to be repelled by this Court. The entire pleadings in para 10 of the plaint suggests that there was collusion between the defendants in obtaining the gift deeds for which, no evidence has been placed on record.
28.It is also submitted in the written arguments that when it was pleaded in para No.11 of the plaint that the defendants are in a dominating position and fiduciary relationship with Kodali Tulasamma, for which also there 40 is no evidence at all and in the written arguments submitted that Form No.32A which was mandatory made by Registration Department goes to show that Kodali
Tulasamma came to the Registrar Office and attended
before the Registrar Office and executed Ex.B.5 to B.9 in
favour of D.1 to D.3. So, the question of undue influence and demand over Kodali Tulasamma by D.1 to D.3 are does not arise at all. And it is also further argued by him that the plaint pleadings are not clear as to how and when the undue influence was made by defendants over
Kodali Tulasamma.
29.Even according to the written arguments submitted by the defendants in para Nos.9, 10, 11 of the plaint is clear about undue influence fiduciary relationship by the defendants over Kodali Tulasamma.
It is true that no specific dates are mentioned in the plaint pleadings, when on which date the undue influence was made by the defendants over
K.Tulasamma. It is not practically possible for a person who took the plea about the undue influence, fraud or collusion to mention the specific dates. When the suit is based on such cause of action, the whole evidence is to be read together and the undue influence, fraud and fiduciary relationship, domination over the other are all to be gathered from the evidence so adduced by both the parties.
30.The plaintiff is grandson of Kodali
Tulasamma. D.1 & D.2 are the daughters of niece of
Kodali Tulasamma and D.3 is the daughter of nephew of
Kodali Tulasamma. By leaving her grandson, the properties were executed in favour of D.1 to D.3 itself is a 41 doubt and why Kodali Tulasamma neglected the 1st plaintiff in giving property to him and why the property was given in favour of D.1 to D.3 is also to be seen. It cannot be said by the defendants that the entire duty or burden lies on the plaintiffs only to establish that undue influence and fiduciary relationship and fraud was played on Kodali Tulasamma by the defendants. It is equally the responsibility or burden lies on the defendant also under what circumstances those gift deeds were executed in favour of D.1 to D.3. They cannot simply kept quiet and they cannot simply say it is not their duty.
31.It is also their responsibility to prove for what necessity by neglecting the 1stplaintiff; Kodali
Tulasamma has executed the gift deeds in their favour.
For which, D.1 to D.3 did not enter into witness box. D.5 came and examined as DW.1, but without completing the evidence, he died. Subsequently, D.6 is examined as
DW.2. Except DWs.1 & 2 no other witness on behalf of defendants were examined to prove their case also. There may not be necessity to examine the attestors and scribe of Exs.B.5 to B.9 because, it was an admitted by the plaintiffs about the execution of Ex.B.5 to B.9, why because, the plaintiffs have filed the suit for declaration by declaring Exs.B.5 to B.9 are void and not binding on him.
32.As it is rightly contended by the counsel for the defendants, there is no necessity to examine the attestors and scribe of the Ex.B.5 to B.9 as the 1st plaintiff admitted Ex.B.5 to B.9. Even though the suit is filed by the plaintiff do declare Ex.B.5 to B.9 are not binding on the 1st plaintiff, but as the attestors and 42 parties to the documents are relatives, related to each other, thereby, their evidence is so necessary to prove under what circumstances, Kodali Tulasamma executed
Ex.B.5 to B.9 in favour of D.1 to D.3 by ignoring the 1st plaintiff. There is possibility for the defendants to explain the strained relationship in between Kodali
Tulasamma and 1st plaintiff by examining the defendants or relatives of the plaintiffs and defendants. But, except
DWs.1 & 2 i.e., D.5 and D.6 none were examined on behalf of the defendants. Admittedly, on the date of execution of gift deeds, D.1 to D.3 were not present in the
SubRegistrar Office, Patamata and D.1, D.2 are in U.S.A and D.3 is in Chennai. So, acceptance of the gift deeds and delivery of possession and acceptance of the possession by D.1 to D.3 cannot be happened. Like so, handing over the documents by Kodali Tulasamma to D.1 to D.3 also cannot be done, because they were not present on the date of registration of the documents.
33.The recitals of Ex.B.5 to B.9 goes to show that out of love and affection as D.1 to D.3 are happened to be granddaughters of Kodali Tulasamma, she executed the gift deeds in favour of D.1, D.2 and D.3 respectively and the consideration is the love and affection. It is also mentioned in the said deeds that the link documents to the said property is also handed over to D.1 to D.3. But, there is no whisper in the gift deeds about the interest of the 1st plaintiff, i.e., why Kodali Tulasamma is executing the gift deeds in favour of D.1 to D.3, except the word love and affection.
34.PW.2 and PW.8 are the relatives of both parties. PW.3 is neighbour of Kodali Tulasamma. PW.4 43 is neighbouring cultivator, who is also related to PW.2.
Whereas, PW.5, PW.6 and PW.7 are the tenants. Ex.A.5 to A.8 are the original registered sale deeds in favour of
Kodali Tulasamma i.e., Title deeds/link documents to
Exs.B.5 to B.9, which are in the custody of the plaintiff and he filed those documents into the Court. But, according to Ex.B.5 to B.9 the link documents and all other connected documents are handed over to D.1 to
D.3, but those documents are not filed by them. It is the plaintiff who filed the original link documents into the
Court i.e., Exs.A.5 to A.8. So, the handing over the documents to D.1 to D.3 by Kodali Tulasamma on the date of Ex.B.5 to B.9 is not correct because, first of all
D.1 to D.3 were not present on the date of registration and that too all the link documents are in the custody of the 1st plaintiff. It is deposed by PW.1 during his cross examination that Kodali Tulasamma handed over Exs.A.5 to A.8 to him in the year 2006. So also Exs.A.2 to A.4 in the year 2006.
35.PW.2/Kodali Venkateswara Rao, who is related to both parties i.e., plaintiff’s paternal grandfather by name Kodali Rama Kotayya and his father by name
Dasaradha Ramaiah are own brothers. He deposeds that
Kodali Tulasamma brought up the father of plaintiff namely Satyanarayana and performed his marriage with
Savithri. During the life time of Satyanarayana,
Satyanarayana, his wife Savithri, his mother Tulasamma and his son 1st plaintiff and his daughterinlaw Jyothi used to live together at Patamata, Vijayawada in their residential house. About 15 years ago, the 1st plaintiff was transferred to Muppalla village in Chandralapadu 44
Mandal, as such the plaintiff shifted his residence to
Muppalla and used to reside there along with his wife and children, while the parents of the plaintiff and paternal grandmother of plaintiff used to reside in
Patamata. The plaintiff used to visit them once in a week ever Sunday and in public holidays to look after their welfare. After retirement of the plaintiff in the year 2009, he shifted his family to Patamata. After the death of her only son, i.e., Satyanarayana, Kodali Tulasamma became mentally and physically weak and about one year prior to her death, she was bed ridden and mentally in an unsound condition.
36.PW.3/Lella Ramu, who is also deposed that after the death of father of 1st plaintiff, the mother of the plaintiff and one of the tenants of Kodali Tulasamma used to see the welfare of Kodali Tulasamma during her last days and he also deposed that about one year prior to death of Kodali Tulasamma she was bed ridden and mentally in unsound mind condition.
37.PW.8/Kodali Seshagirirao, who is also related to PW.1 and defendants deposed that PW.2 is his elder brother. There were no family disputes in between Kodali
Tulasamma and plaintiff’s parents and he is not aware whether there is any partition list in between plaintiff’s father Satyanarayana and plaintiff. Plaintiff and his father never used to discuss about the properties while they are selling. He also deposed that there is no family dispute resolution agreement between Tulasamma, her son and plaintiff and plaintiff’s mother on 11.10.1980.
45
38.So, here the relatives i.e., PW.2, PW.3 and
PW.8 of the Plaintiffs and defendants are examined on behalf of plaintiffs and all the three witnesses categorically deposed before this Court that after the death of father of the 1st plaintiff, his mother and he himself used to look after the welfare of Kodali
Tulasamma during her last days, that too when
Tulasamma is not hale and healthy and mentally in unsound condition.
39.Whereas, D.1 i.e., 5th defendant is examined on behalf of the defendants. He deposed that there is no possibility for D.1 to D.4 to come to the Court and to give evidence on their behalf. By the time of execution of
Ex.B.5 to B.9, the executants i.e., D.1 to D.4 were not present as they were out of India, but D.4 was present at the time of execution of Ex.B.9. But all the remaining documents were obtained on authorization. He admitted that in Exs.B.5 to B.8, there is no mention that the possession of schedule property was given to authorization holders. It is also admitted by DW.1 during his cross examination that by the time of filing of the written statement by D.1 to D.3, they were not in
India, they gave authorization to him to instruct the counsel for preparation of the written statement, accordingly the written statement was prepared and filed.
Subsequently, DW.1 died pending the suit without completion of his evidence. Thereby, D.6 is examined as
DW.2 to give evidence.
40.Why I am emphasizing about the non examination of D.1 to D.3 and others, because the relatives of the plaintiffs and defendants i.e., PWs.2, 3, & 46 8 supported the case of the plaintiffs. In such circumstances, it is the duty of the defendants to prove that there is strained relationship in between the 1st plaintiff and Kodali Tulasamma, because in the written statement filed by D.4 to D.7 which is adopted by D.1 to
D.3, it is specifically averred that “To the best of knowledge of these defendants, the deceased Kodali
Tulasamma had no love lost towards the plaintiff and it is known to one and all that late Tulasamma had kept the plaintiff at a safe distance so as not to allow him to interfere with her person and properties. The plaintiff and his father were divided prior to 5.4.1980 and they were in possession of their respective properties in accordance with the partition list signed by them in evidence of earlier oral partition and separate possession prior to 5.4.1980. Thus, it is clear that the plaintiff and his father were living separately at least from 5.4.1980, which is evidenced by the partition list even date notarized by A.S. Ramarao on 11.10.1980 and it is further averred that on 12.10.1980 there was family dispute resolution agreement between Kodali
Tulasamma, Kodali Satyanarayana, the 1st plaintiff and mother of 1st plaintiff Savithramma. The said documents signed by all the parties and notarized by late
A.S.Ramarao on 12.10.1980. Both originals of aforementioned documents are with the plaintiff, and the defendants are having only xerox copies. In the event of plaintiff’s failure to produce the original documents, the defendants will produce the xerox copies available with them as secondary evidence, as the defendants are not in possession of the original documents.” 47
41.So, it is stated in the written statement filed by
D.4 to D.7 that Tulasamma kept the 1st plaintiff at a far distance and she has not good terms with him and also stated about the partition list and family dispute resolution agreement. Apart from the same, a suggestion is given to PW.1 that from the child hood of the 1st plaintiff Kodali Tulasamma hated him and Tulasamma while he was in service necked out of the house after beating him in the presence of the relatives. He also further denied about the partition list dt.5.4.1980 and also further denied that there are no cordial relationship between him and his father. He also specifically denied about the family dispute resolution agreement dt.11.10.1980. He also further denied the suggestion that he is in possession of the original of the notarized partition list and family dispute resolution agreement.
42.So, when PW.1 is denying the partition list and family dispute resolution agreement and when PWs.2, 3, 8 are supported the 1st plaintiff and when there is a specific averment in the written statement filed by D.4 to
D.7 about the strained relationship in between
Tulasamma and 1st plaintiff, thereby, it is necessary for the defendants to establish that there are no good terms in between Tulasamma and 1st plaintiff and also to prove about the partition list as well as family dispute resolution agreement which are filed by them and marked as exs.B.2 and B.3. In fact, to mark Exs.B.2 &
B.3, the defendants went up to the Hon’ble High Court and got favourable orders, thereby, those documents are marked. But here, DW.1 and DW.2 alone are examined.
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43.DW.1/Garikapati Subash Chandra Bose, who is the husband of Garikapati Kanaka Durga Devi, gave evidence on behalf of the other defendants. He in his chef affidavit got mentioned that to his knowledge, the plaintiff and his father were divided prior to 5.4.1980 and they were in possession of their respective properties in accordance with the partition list signed by them in the evidence of earlier oral partition and separate possession.
So, according to him, since 1980 there were no good relationship in between Tulasamma and 1st plaintiff as well as 1st plaintiff and his father. But, that aspect is not proved through any source of evidence. It is also further mentioned in the chief affidavit that Kodali Tulasamma intend to settle the remaining property which are not covered under Ex.B.5 to B.9 in favour of his wife by way of a Will dt.31.8.2010 and the said original will is filed
before this court and it is also marked as Ex.B.4. But the
attestor and scribe of the Will are not examined and there is no need to discuss more about that will because the subject matter of the suit is not concerned with the said will. But, in that will, it is mentioned that“The deceased
Tulasamma is 95 years and she is suffering with old age ailments. There are no good terms in between herself and her grandson i.e., 1st plaintiff and her near relatives i.e, her nephew’s wife by name Garikapati Kanaka Durga
Deve is looked after her welfare, thereby the remaining property which was left is bequeathed in favour of
Garikapati Kanka Durga Devi, who is none other than the wife of DW.1.” Except in the recitals in that will that there are no good terms in between him and the 1st plaintiff, but the same is not found in Ex.B.5 to B.9. So, 49
Garikapati Kanaka Durga Devi, who is the wife of DW.1 is an important witness in this case to say and to prove the execution of the Will in her favour and to say that she looked after the welfare of Kodali Tulasamma during her life time and even she was also not examined on behalf of the defendants.
44.I have also gone through the family dispute resolution agreement. It is not attested by any person and that it was mentioned that on the advice of elders, the names of the elders are not mentioned and the elders also did not sign in the said agreement. Of course, there is no necessity to discuss more about the family dispute resolution agreement and partition list, because these two documents are denied by the plaintiffs and not proved by the defendants. It is also denied by the plaintiff that he is not in possession of originals of
Exs.B.2 and B.3.
45.6th defendant is examined as DW.2 and it is specifically mentioned in the chief affidavit of DW.2 that
DW.1 is partly examined, subsequently, he suddenly died on 8.2.2018. D.4 is his wife, she was employee in Vijaya
Dairy Farm and took voluntary retirement 2 or 3 years after his retirement. He deposed in his cross examination what was deposed by DW.1 before the Court in his evidence. There is a lot of cross examination with regard to Ex.B.4 will, but there is no need to discuss about that evidence because, there is a separate suit pending on the file of VII Addl. District Judge,
Vijayawada in O.S.280/2016 in respect of the property covered under Ex.B.4 Will. He deposed that to his knowledge he might have signed on one or two registered 50 documents. Ex.B.8 settlement deed is shown to him and he deposed that the photograph affixed to Ex.B.8 depicts the house Tulasamma and it is recited in it that possession is delivered. But, even after execution of
Ex.B.8, the executants did not shift to any other place and to his knowledge, there are three tenants in the said house. He deposed that he accompanied Tulasamma at the time of registration of the documents, but he do not know, where the stamps were purchased by Tulasamma and who accompanied her while purchasing the stamps.
46.It is deposed by him (DW.2) that the original title deeds were handed over to respective settlers under
Ex.B.5 to B.9, but in fact, the title deeds are with the plaintiff. He admitted that there is no whisper in Ex.B.5 to B.9 about the reason as to why the executants executed said deed in favour of the daughter of her nephew, excluding her own grandson i.e., 1st plaintiff. He admitted that D.1 & D.2 are permanent residents of USA and D.3 is permanent resident of Chennai and D.1 to D.3 are not residing in the respective addresses in
Vijayawada as shown in the relevant settlement deeds by that time and those addresses belongs to their respective fathers. There is no authorization for D.3 in the other document. But, the contention of DWs.1 & 2 goes to show that D.1 to D.3 are not present on the date of the registration and it is clear from the documents i.e.,
Exs.B.5 and B.6 that D.1 & D.2 are not present on the date of execution i.e, 25.6.2010, because they have given authorization to one P. Madhu sudhanarao, who is D.7 in this case. He deposed that Ex.B.3 is family dispute resolution agreement dt.11.10.1980 and he stated that 51 he was present at the time of Ex.B.3, but his signature is not found in Ex.B.3. He admitted that there is no reference of Ex.B.2 and B.3 in Ex.B.5 to B.9.
47.DW.2 admitted that subsequent to the filing of the present suit one Garikapati Sridhar claiming himself as agricultural tenant under Tulasamma, filed
A.T.C.3/2013, but he has not given any evidence as a witness in the said tenancy case. But, he further admitted that prior to the said tenancy case, DW.1, D.7 on behalf of Dd.1 to D.3 gave police complaint against the GPA of 2nd plaintiff namely Jyothi. By virtue of said complaint a report was called from MRO through
Collector to enquire in whose possession the property covered under Exs.B.5 to B.9 is and in turn the said
MRO enquired and filed report. As per the said report, the said property is in possession of Jyothi/PW.9 i.e., mother of 2nd plaintiff. He also admitted that ATC.3/13 and appeal against ATC were dismissed on merits. He admitted that except on paper, the physical possession of the respective properties under Ex.B.5 to B.9 settlement deeds were not delivered. Even as on the said date, said
Ac.5.00 is in physical possession of mother of 2nd plaintiff.
48.DW.2 admitted that Ex.A.2 is ration card which was issued in the name of Satyanarayana as head of the family. He admitted that there are no disputes, nor disputes, nor ill feelings, nor any civil or criminal litigations in between Kodali Tulasamma and her only son Satyanarayana. But, he states that there are civil disputes in between Kodali Tulasamma and 1st plaintiff, but he cannot say the nature of the litigations and suits 52 which are pending and other details. He deposed that 1st plaintiff performed obsequies of Kodali Tulasamma, but he adds that Kodali Tulasamma informed them not to permit her grandson 1st plaintiff to perform her obsequies and requested them to perform the obsequies. Even though Tulasamma complained not to perform any obsequies by the 1st plaintiff to her and it is also states by him that they born the expenses of obsequies.
49.DW.2 deposed that he do not know who is
Kodali Venkateswara Rao/PW.2 and so also except his name he do not know anything about PW.8. DW.2 also admitted that defendants are not having any enmity with
PW.2 and PW.8. In the last portion of the cross examination he deposed that till the death of Kodali
Satyanarayana, Tulasamma lived with him i.e, with her son and all the defendants are having common interest in the suit property. D.7 is his cobrother and the 1st plaintiff performed obsequies of Kodali Satyanarayana i.e., his father in the house where Tulasamma resided and died in the said house.
50.So, the evidence of DW.2 clearly goes to show that all the defendants are having common interest in the suit property. The 1st plaintiff performed obsequies of
Tulasamma as well as Satyanarayana i.e., his father in the same house where Satyanarayana and Tulasamma used to reside together. Even DW.2 could not able to say the relationship of PW.2 and PW.8 with Tulasamma as well as 1st plaintiff, which shows that DW.2 do not know about the family affairs of PW.1, Kodali Tulasamma and
Kodali Satyanarayana. So, it is crystal clear that non 53 examination of D.1 to D.3, Garikapati Kanaka Durga
Devi, i.e., wife of DW.1 will play vital role in this case.
51.Apart from the same, the 1st plaintiff took more painsinsummoningPW.10andEx.A.23.
PW.10/Kalyanam Rama Rao who worked as Sub
Registrar, Patamata of Vijayawada deposed that as per the summons he produced nonjudicial stamp vendors sale register and stock register dt.1.1.2010 which is
Ex.X.1. The relevant entry dt.24.6.2010 at page No.58 is in the name of Kodali Tulasamma which contains thumb impression is marked as Ex.X.2. He has issued Ex.A.21 letter dt.20.8.2015 which is confronted to him, in
Ex.A.21 he mentioned that ‘Tulasamma is mentioned as
Nisani’. Ex.A.23 is the certified copy of the relevant entry of above sale and stock register issued by him i.e., equivalent to Ex.X.2 and he admitted that in Ex.A.23 there is no thumb impression of Tulasamma. But, he adds that end of Ex.A.23 certified copy was in black shade due to xerox. The last letter ‘ni’ (in Telugu) as reflected in Ex.X.2 entry reflects in Ex.A.23 certified copy.
52.In the crossexamination, he (PW.10) deposed that there is every possibility of mixing the thumb impression in the black shade of Ex.A.23 certified copy.
Ex.X.1 register is the register of 2010 submitted by the stamp vendor namely Bharathi before Sub Registrar,
Patamata for due verification. Ex.A.23 is certified copy of nonjudicial stamp sale register page No.58 belongs to
Bharathi who is the stamp vendor which shows that
Rs.10 X 40= Rs.400/ was purchased by Kodali
Tulasamma. It is mentioned in the said register across the entry Kodali Tulasamma Nisani. But, there is no 54 thumb impression in the certified copy i.e., Ex.A.23.
But, whereas it is found in the sale and stock register that thumb impression is found, that itself shows it is a manipulated one and I also saw the photographs of
Kodali Tulasamma which are marked as Ex.A.25 and
A.26 and it clearly reveals that without the assistance of any one, it is not possible for her to stand even and that is her physical status. So, Kodali Tulasamma directly went to Kanuru and purchased the stamps without anybody’s assistance is also not believable one.
53.Why I am discussing all these aspects is there is possibility for D.5 to bring the stamps from Kanuru and to bring Kodali Tulasamma to the Subregistrar office and obtained thumb impression of her on the documents. There is possibility for D.4 and D.5 to gain over Kodali Tulasamma because in the will i.e., Ex.B.4, it is mentioned that D.4 is residing along with her, thereby there is a possibility for them to gain over Kodali
Tulasamma or in obtaining Ex.B.5 to B.9. The possession was not delivered to D.1 to D.3 on the date of
Exs.B.5 to B.9. It is clearly proved by the plaintiffs as well as through the evidence of DWs.1 & 2. The other recitals, the original documents are handed over to D.1 to
D.3 is also not correct as because the originals are with the plaintiffs who filed them into the Court.
54.It is submitted in the written arguments by the defendants that the contention of the learned counsel for the plaintiffs that none of the Defendants 1 to 4 were examined and D.5 and D.6 were alone examined is to be repelled by this Hon’ble Court as the Hon’ble Court is bound by the quality of evidence, but not the quantity of 55 the evidence. Since the documents are admitted by the plaintiffs in fact there is no necessity to examine any witnesses. The plaintiffs have to succeed on their pleadings and proof of the same at the time of trial and cannot be permitted to rely upon deficiencies or weaknesses in the evidence of the defendants. The so called admissions extracted from the evidence of DW.1 will not enable the plaintiffs to prove their case. The documents concerned i.e., Ex.A.9 to A.13 are to be executed as required under Sec.123 of T.P. Act expressing the intention of the donor to transfer the immovable property in favour of the done and without consideration. The acceptance by the done can be inferred from the circumstances and the fact of possession of the gift deeds under Ex.A.9 to A.13 by the done and getting them presented through the witnesses in court in original will establish the fact of execution and registration, the fact of acceptance by the donees.
Donee’s signature on the gift deed indicates acceptance.
The acceptance of gift deed may be proved by implied evidence. Acceptance of the gift deed by an authorized representative or a natural guardian is permissible at law. The fact of handing over the gift deeds by the donor to the done is sufficient evidence of acceptance of the gift as held in AIR 1975 Patna – 140. There is no presumption of fraud and undue influence merely because the parties are related to each or that the donor is old or weak character as held in AIR 1957 Supreme
Court – 878. Though the donor is an old lady of more than 90 years and though was an illiterate woman when it is not proved by evidence that she was infirm at or 56 about the time of gift deeds, the gift deeds are held to be valid as held in AIR 2001 Patna – Page 1. Though the first plaintiff is not a stranger to the family of Kodali
Tulasamma Ex.B.2 and B.3 prove severance of relationship and for all practical purposes the plaintiff who laid the suit originally is to be held as a stranger to the family and it is to be further held that he has no right to challenge the gift deeds. There is no contravention of
Sec.122 of Transfer of Property Act in so far as execution of Ex.A.9 to A.13 as contended by the plaintiffs. The non examination of necessary parties i.e., Defendants 1 to 4 and D.7 is not a serious infirmity as claimed by the plaintiffs, and there is no necessity at all to examine any done in view of the admission of execution and registration of the gift deeds Exs.A.9 to A.13 by Kodali
Tulasamma. Since the plaintiffs are contending that the executants of the gift deeds Exs.A.9 to A.13 was in an advanced age, and of fragile health condition and not in a state of sound and disposing state of mind it is for the plaintiffs to lead evidence in that behalf. Burden of proof lies on a person who pleads a particular fact and who fails if no such evidence is placed on record. Since, the plaintiffs are pleading fraud, misrepresentation and coercion in respect of Exs.A.9 to A.13 it is for them to prove it. State of mental condition of the executants is to be established by the plaintiffs since they are challenging
Exs.A.9 to A.13 as void. There is no necessity to examine the scribe of the document since the plaintiffs themselves admits execution and registration of the documents. The impugned documents under Exs.A.9 to A.13 are dated 25.6.2010 and the photographs marked by the plaintiffs 57 relates to the time, unconcerned to the date of execution of Exs.A.9 to A.13.
55.The full text of judgments which are referred in the above are not submitted by the counsel for the defendants. I have already discussed about the necessity of the evidence of other defendants other than D.5 and
D.6 in the earlier paras. So, the contention raised by the counsel for the defendants in the written arguments cannot be taken into consideration.
With regard to possession:
56.The tenants are paying rents to the 1st plaintiff and some of the tenants were also examined on behalf of plaintiffs as PW.4, PW.5, PW.6 and PW.7. They came and clearly deposed before the Court that they are paying the rents to the 1st plaintiff. If really Exs.B.5 to B.9 are acted upon, the mutations might have been effected in favour of D.1 to D.4 or at least they would have taken steps for mutation. It appears that no such steps have been taken by D.1 to D.4 for mutation. So, it shows that Ex.B.5 to
B.9 are not acted up on.
57.The counsel for the defendants contended in the written arguments that the suit itself is not maintainable without seeking recovery of possession and he also further submitted in the written arguments that the temporary injunction which was granted earlier in favour of the plaintiff was dismissed and subsequently
CMA is also dismissed, thereby it is clear that the possession is in the defendants. When already the orders are in favour of defendants that they are in possession of the suit property, the plaintiffs ought to 58 have amended the plaint for recovery of possession and he ought to have sought for recovery of possession. But, he did not do so. Thereby, the suit itself is not maintainable. But, here the orders in Interlocutory
Application are not final and they are subject to the result of the main suit and there is no possibility for the plaintiffs to lead evidence at that stage.
58.Whatever it may be, the finding in ATC which was went up to appeal, clearly goes to show that the 1st plaintiff is in possession of the suit property. In fact
DW.1 and DW.2 also admitted that Item No.2 of the plaint schedule property is in possession of the mother of the 2nd plaintiff. The voluminous documents which are filed by the plaintiffs also goes to show that the 1st plaintiff is in possession and enjoyment of the suit property. Hence, there is no need for the plaintiff to pray recovery of possession from the defendants. Thus in all, the plaintiff is entitled for decree. Accordingly, issue No.
(i) & (ii) are answered in favour of plaintiffs.
ISSUE NO.(vii):
59.In the result, the suit is decreed, declaring that the gift deeds dt.25.06.2010 executed in favour of
D.1 to D.4 by Kodali Tulasamma (i.e., Exs.B.5 to B.9) are void and not binding on the 1st plaintiff and also granted permanent injunction restraining the defendants from ever interfering with peaceful possession and enjoyment of the 1st plaintiff over the suit schedule property. In view of the relationship between the parties, both parties do bear their own costs.
59
Dictated to the Stenographer of this Court,
transcribed by him, corrected and pronounced by me in the open Court, this the 23rd day of March, 2020.
Sd/ G.Kabardhi
XIV Addl. District Judge,
FAC XIII Addl. District Judge,
Vijayawada.
Appendix of evidence
Witnesses examined
For Plaintiff:
PW1Kodali Jagadeeswara Rao
PW2Kodali Venkateswara Rao
PW3Leella Ramu
PW4Alapati Mohana Rao
PW5Papanna Savithri
PW6Mavuri Lakshmi
PW7Settu Vara Lakshmi
PW8Kodali Seshagiri Rao
PW9Kodali Jyothi
PW10 Kalyanam Rama Rao
For Defendants:
DW1Garikapati Subhashchandra Bose
DW2Vemulapalli Naga Bushanam
Documents marked
On behalf of Plaintiff:
Ex.A1Dt.08.01.1934. Notarized copy of registered partition deed for the joint family property of Kodali Satyanarayana.
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Ex.A219921996 of Government of AP and Depart ment of Civil Supply issued pink ration card to the family members of plaintiff
Ex.A3Dt.31071996 MRO, Penamaluru issued Title deed in the name of Kodali Tulasamma
Ex.A4Dt.31071996 MRO, Penamaluru issued pos session and cultivation Pattadar Pass Book in the name of Kodali Tulasamma
Ex.A5Dt.22.03.1971, Original Regd Sale deed in favour of Kodali Tulasamma under Doc.No.1042/1971
Ex.A6Dt.03.03.1996, Original Regd Sale deed in favour of Kodali Tulasamma under Doc.No.1245/1996.
Ex.A7Dt.27.05.1996, Original Regd Sale deed in favour of Kodali Tulasamma under Doc.No.1368/1996.
Ex.A8Dt.27.05.1996, Original Regd Sale deed in favour of Kodali Tulasamma under Doc.No.1367/1996.
Ex.A9Dt.25.06.2010, Certified copy of Gift Deed exe cuted by Kodali Tulasamma in favour of Potluri LavanyaD1
Ex.A10 Dt.25.06.2010, Certified copy of Gift Deed exe cuted by Kodali Tulasamma in favour of Sudha Rani D2
Ex.A11 Dt.25.06.2010, Certified copy of Gift Deed exe cuted by Kodali Tulasamma in favour of Swetha D3 Vide Doc.No.3505/10.
Ex.A12 Dt.25.06.2010, Certified copy of Gift Deed exe cuted by Kodali Tulasamma in favour of B.Savithri D4
Ex.A13 Dt.25.06.2010, Certified copy of Gift Deed exe cuted by Kodali Tulasamma in favour of Swetha D3 Vide Doc.No.3507/10.
Ex.A14 Dt.03.11.2010, Original death certificate Kodali Satyanarayana issued by Municipal Corpora tion, Vijayawada 61
Ex.A15 Dt.20.10.2010, Original death certificate of Ko dali Tulasamma
Ex.A16 Dt.03.11.2014, C.Copy of FMB of Pedapulipaka Village, Penamaluru Mandal in RS.No.44
Ex.A17 Dt.03.11.2014, C.Copy of FMB of Pedapulipaka Village, Penamaluru Mandal in RS.No.45.
Ex.A18 Dt.03.11.2014, C.Copy of FMB of Pedapulipaka Village, Penamaluru Mandal in RS.No.115
Ex.A19 Dt.10.10.2010 to 10.02.2015, duplicate copies of Rent receipts
Ex.A20 House hold card issued by M.R.O, Vijayawada
Ex.A21 Transport driving license with badge No.20212
Ex.A22 I.D. Card of PW8 issued by Election Commis sion of India
Ex.A23 Registration Extract of Stamp vendors ‘Sale Register’ dt.20.08.2015. Issued by SRO, Pata mata
Ex.A24 C.Copy of Order in ATC 3/2013 on the file of II Addl. Jr.Civil Judge, Dt.06.03.2015.
Ex.A25 Photograph dt.28.03.2018
Ex.A26 Photograph dt.28.03.2018
On behalf of Defendants:
Ex.B1Copy of Settlement deed dt.18.08.2011
Ex.B2Xerox copy of the partition list dt.05.04.1980 notarised by Sri A.S.Rama Rao on 11101980
Ex.B3Xerox copy of the Family Dispute Resolution agreement dt.11101980 notarised by Sri A.s.Rama Rao on 12101980
Ex.B4Original will dt.31082010 executed by Kodali Tulasamma
Ex.B5Original regd., settlement deed dt.25.06.2010
Ex.B6Original regd., settlement deed dt.25.06.2010 62
Ex.B7Original regd., settlement deed dt.25.06.2010
Ex.B8Original regd., settlement deed dt.25.06.2010
Ex.B9Original regd., settlement deed dt.25.06.2010
Ex.X1Original NonJudicial Stamp vendors sale reg ister and stock registers dt.01.01.2010
Ex.X2The relevant entry dated 24.06.2010 page No.58 in the name of Kodali Tulasamma which contains thumb impression.
Sd/ G.Kabardhi
XIV A.D.J./VJA FAC XIII A.D.J./VJA