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IN THE COURT OF THE XI ADDITIONAL DISTRICT JUDGE::GUDIVADA.
PRESENT: SMT. G.RAJANI
XI ADDL. DISTRICT JUDGE.
TUESDAY, THIS THE 18TH DAY OF APRIL, 2023.
O.S.81/2014
Between:-
Reddem Padmavathi alias Padmaja …. PLAINTIFF A N D
1. Yeruva Jagadeeswari
2. Malireddi Venkateswara Ayyareddy
3. Malireddi Dinesh Reddy
4. Malireddi Anusha
5. Yenepalli Aruna Kumari
6. Suragani Aditya
7. Vasanthavada Raghu Babu
8. Hanumanthu Appa Rao
9. Kovvuri Ramadevi
10. Vasanthavada Krishnaveni
11. Nalluri Bala Koteswara Rao 12.Vasanthavada Durga Bhavani 13.Shaik Rajya Sultana
14. Gangula Krishna Kumari
15. Domathoti Pal Sunil
16. Domathoti Divya Jyotsna
17. Nalluri Vijayalakshmi
18. Gandem Ranga Satyavathi
19. Jangam Manikyam
20. Divi Jitendra Prasad
21. Karra Sudha Rani
22. Jujjuvarapu Pavani
23. Guda Gnana Suvarna Raju …DEFENDANTS
This suit coming on 24.01.2023 before me for final hearing in the presence of Sri T.Srinivasa Rao & Sri K.Chandra Sekhar, Advocates for the plaintiff and of Smt G.R.Kamalamrutham, Advocate for the defendant No.1; Sri S.V.Pandu Ranga Rao, Advocate for the defendant No.2; Sri K.Siva Prasad, Advocate for the defendants No.3 & 4; defendants No.5 to 19, 23 remained exparte; Sri G.Appaiah, Advocate for the defendants No.20 & 22 and of Sri Ch.Venkata Ramana, Advocate for the defendant No.21 and upon hearing the both side counsels and considering the material on record and the matter having been stood over for consideration till this day, this court delivered the following:- 2
J U D G M E N T
The suit is filed by the plaintiff against the defendants 1 and 2 for partition of the pliant A & B schedule properties into three equal shares and allot 1/3rd share to the plaintiff and for mesne profits from the date of filing the suit till the date the plaintiff is put into possession of the 1/3rd share, for costs of the suit and such other reliefs as deemed fit.
2) As per the plaint averments the contention of the plaintiff is that one Malireddi Ayyareddi having plaint schedule properties along with some other properties during his life time, he has got wife namely
Seshamma and two sons namely Rama Gopala Reddy and Vijayarama
Raghava Reddy. The second son Vijaya Rama Raghava Reddy was blessed with a son namely Venkateswara Ayya Reddy, who is the second defendant in the suit and two daughters namely Yeruva Jagadeeswari i.e., the first defendant and the plaintiff namely Reddem Padmavathi, through his wife Lakshmi Kanthamma. After the death of Malireddy Ayyareddy and his wife Seshamma, a suit was filed in O.S.No.15/1949 on the file of the
District Court, Krishna District, between their elder son Malireddy Rama
Gopala Reddy and his minor son Devakumara Reddy, for partition against
Malireddy Vijaya Rama Raghava Reddy.
The said suit in O.S.No.15/1949 was ended in compromise between both the brothers and as per the terms of the said compromise, the ‘B’ schedule property therein fell to the share of Vijaya Rama Raghava Reddy whereas the ‘A’ schedule properties therein fell to the share of Rama
Gopala Reddy, since then the said Vijaya Rama Raghava Reddy was enjoying the ‘B’ schedule property therein with absolute rights.
While so, during his life time the said Vijaya Rama Raghava Reddy has sold some part of ‘B’ schedule property which he acquired under compromise in O.S.No.15/1949 and later he died intestate on 25.10.1998 leaving behind him, his wife Lakshmi Kanthamma and his children 3 Yeruva Jagadeeswari (D.1), Venkateswara Ayya Reddy (D.2) and the plaintiff-Reddem Padmavathi being class-I heirs of the deceased Vijaya
Rama Raghava Reddy who got equal shares with absolute rights. The plaintiff has married one Prabhakara Reddy of Gudibandivaripalem village, Guntur district. Items 1 to 19 of the plaint ‘A’ schedule properties of an extent of Ac.1.39 cents out of Ac.6.39 cents in D.No.193 of
Nagavarappadu village and the suit ‘B’ schedule properties an extent of
Ac.5.56 ½ cents of land situated in Valivarthipadu village of Krishna
District and some other properties of the said ‘B’ schedule property fell to the share of Vijaya Rama Raghava Reddy under the above said compromise. The plaintiff and defendants 1 & 2 are the children of Vijaya
Rama Raghava Reddy and Lakshmi Kanthamma.
It is further contended that Lakshmi Kanthamma i.e., the wife of
Vijaya Rama Raghava Reddy and the mother of the plaintiff and defendants 1 & 2 also died intestate on 23.6.2012. After the death of their parents the plaintiff and the defendants 1 & 2 being their children as legal heirs have succeeded to the suit ‘A’ & ‘B’ schedule properties under the
Hindu Succession Act, 1956, being class-I legal heirs got equal rights and they are in joint possession and enjoyment of the suit schedule properties.
The plaintiff recently came to know that her mother Lakshmi
Kantamma and defendants 2 to 4 have allegedly executed registered sale deed dated 31.5.2008 vide document No.2571/2008 of Gudivada SRO in favour of the 5th defendant namely Yenepalli Aruna Kumari in respect of item No.1 of suit ‘A’ schedule property, they have also allegedly executed a registered sale deed dated 31.5.2008 vide document No. 2572/2008 of
SRO, Gudivada in favour of 5th defendant in respect of item No.2 of plaint ‘A’ schedule property. Lakshmi Kanthamma and defendants 2 and 4 have also allegedly executed a registered gift deed dated 29.7.2008 vide document No.3701/2008 of SRO, Gudivada in favour of third defendant 4 i.e., Malireddy Dinesh Reddy in respect of item No.3 of plaint ‘A’ schedule property.
Likewise, Lakshmi Kantamma and defendants 2 to 4 have again alienated item No.4 of the plaint schedule property under a registered possessory sale agreement-cum-GPA vide document No. 3746/2008 of
SRO, Gudivada dated 30.7.2008 in favour of defendants 6 and 7. Again on 11.8.2011 they through their GPA-cum-sale agreement agent Sri V.Polera
Rao sold item No.5 of the plaint schedule property vide sale deed
No.4478/2011 of SRO, Gudivada in favour of 8th defendant. They have also executed a sale deed vide document No.1623/2008 of SRO, Gudivada
dated 10.4.2008 in favour of 9th defendant for item No.6 of plaint ‘A’
schedule property. They have also executed a sale deed vide document
No.1624/2008 of SRO, Gudivada dated 10.4.2008 in favour of 10th defendant for item No.7 of the plaint ‘A’ schedule property. They have also executed a sale deed vide document No.1625/2008 of SRO, Gudivada
dated 10.4.2008 in favour of 11th defendant for item No.8 of plaint ‘A’
schedule property. They have also executed one registered possessory agreement-cum-GPA vide document No.2576/2008 of SRO, Gudivada
dated 31.5.2008 in favour of 12th defendant for item No.9 of plaint ‘A’
schedule property. They have also executed a sale deed under document
No.3697/2008 of SRO, Gudivada dated 29.7.2008 in favour of 13th defendant for item No.10 of plaint ‘A’ schedule property. They have also executed a sale deed vide document No.3698/2008 of SRO, Gudivada
dated 29.7.2008 in favour of 14th defendant for item No.11 of plaint ‘A’
schedule property. They have also executed a sale deed vide document
No.3700/2008 of SRO, Gudivada dated 29.7.2008 in favour of 15th and 16th defendants jointly for item No.12 of ‘A’ schedule property. They have also executed a sale deed vide document No.3745/2008 of SRO, Gudivada
dated 30.7.2008 in favour of 17th defendant for item No.13 of plaint ’A’
5 schedule property. They have also executed a sale deed through their possessory agreement-cum-GPA holder V.Polera Rao vide document No.
4477/2011 of SRO, Gudivada dated 11.8.2011 in favour of 18th defendant for item No.14 of plaint ’A’ schedule property. They have also executed a sale deed through their GPA-cum- sale agreement-cum GPA agents Suragani Aditya and V.Raghu Babu vide document No.4054/2008 of SRO, Gudivada dated 21.8.2008 in favour of 19th defendant for item
No.15 of plaint ’A’ schedule property. They have also executed a sale deed through their GPA-cum-sale agreement V.Srinivasa Rao vide document
No.654/2010 of SRO, Gudivada dated 19.2.2010 in favour of 20th defendant for item No.16 of plaint ‘B’ schedule property. They have also executed a sale deed vide document No.2007/2010 of SRO, Gudivada
dated 20.4.2010 in favour of 21st defendant for item No.17 of plaint ’A’
schedule property. They have also executed a sale deed vide document
No.4642/2010 of SRO, Gudivada dated 27.7.2010 in favour of 22nd defendant of item No.18 of plaint ‘A’ schedule property and they have also executed a sale deed vide document No.3744/2008 of SRO, Gudivada
dated 30.7.2008 in favour of 23rd defendant of item No.19 of plaint ‘A’
schedule property, ignoring the rights of the plaintiff.
It is further contended that the said illegal alienations made by her mother Lakshmi Kanthamma and defendants 2 to 4 are not valid and the defendants 3 and 5 to 23 have not acquired any rights for the property covered under the above alleged documents. They have alienated the said items of plaint ‘A’ schedule property without having any absolute rights fradulently and illegally by the said alleged illegal documents. It is clearly mentioned in those documents that Vijaya Rama Raghava Reddy died intestate on 25.10.1998 which is evident from the recitals of the said documents that Lakshmi Kanthamma and defendants 2 to 4 have no exclusive right in the plaint ’A’ schedule properties and the said 6 alienations are without any manner of right, title or interest with false recitals to cause wrongful loss to the plaintiff and the alienees did not get any right, title or interest on the strength of the alleged documents and no rights are conveyed to the defendants 3 and 5 to 23 under the above void, nominal and collusive documents as far as the share of the plaintiff is concerned. As they are brought into existence by Lakshmi Kantamma and defendants 2 to 4 by collusion with the defendants 5 to 23 which are detrimental to the rights of the plaintiff and as such alleged registered gift deed and other documents i.e., registered sale deeds are null and void and not binding on the plaintiff and she is not accepting the said alienations and they are ineffective, inoperative, non-est null and void in the eye of law and no rights will accrue to the purchasers or parties.
It is further contended that during the life time of her mother
Lakshmi Kantamma, the plaintiff has requested the defendants 1 and 2 to co-operate for partition of suit ‘A’ & ‘B’ schedule properties, even though they are all admitting the same but postponed on some pretext or other.
After the death of her mother also the plaintiff has requested the defendants 1 and 2 for partition but they are also postponing the same.
Being vexed with the conduct of the defendants the plaintiff finally got issued a registered notice to the defendants through her advocate claiming her 1/3rd share, on 9.4.2014 demanding them to co-operate for partition and also to account for profits. The second defendant, his son
Dinesh Reddy and daughter Anusha i.e, the defendants 2 to 4 got issued a reply notice on 9.5.2014 with all false and untenable allegations. The other defendants having received the said notice under due acknowledgment, have kept quiet. The defendants No.5, 14, 15, 16, 17, 19 and 22 have deliberately returned the registered notice with false endorsements. The plaint schedule properties are very fertile lands and are getting good income and the defendants are liable to render accounts 7 for the income derived from the said properties to the plaintiff and also liable to pay the same to the plaintiff.
Hence, the plaintiff having felt that it is no longer beneficial to her to continue joint along with the defendants 1 & 2, is constrained to file this suit for the relief of partition as prayed. Hence, she prays to partition the suit schedule property into three equal shares and allot one such share to her in the interest of justice. Hence, the suit.
3) On service of summons the first defendant has filed her written statement. While admitting her relationship between the plaintiff and the first defendant and the second defendant. She contends that the plaintiff is their sister. She also admitted that the plaint schedule property and some other property belongs to Malireddy Ayyareddy who is their paternal grand father and after his demise devolved upon his wife
Seshamma. Their elder son namely Malireddy Rama Gopala Reddy and his minor son namely Deva kumara Reddy filed O.S.No.15/1949 before the District Court, Krishna, Machilipatnam for partition which was ended in compromise in which the ‘B’ schedule properties therein fell to the share of Vijaya Rama Raghava Reddy i.e., the father of the plaintiff and the defendants 1 & 2 and ‘A’ schedule property therein fell to the share of his other brother Rama Gopala Reddy and since then Vijaya Rama
Raghava Reddy was enjoying ‘B’ schedule property as absolute owner with full rights. She further admitted that during his life time, Vijaya Rama
Raghava Reddy sold some property of ‘B’ schedule property which he got under compromise. Subsequently their father died on 25.5.1998 intestate and later his wife Lakshmi Kanthamma and the plaintiffs and the defendants have become the successors and later Lakshmi kanthamma also died on 23.6.2012 intestate leaving behind the plaintiff and defendants 1 & 2 and after their demise the plaintiff and defendants 1 & 2 were in joint and constructive possession and enjoyment of the plaint 8 schedule property. While admitting the relationship between the parties and also the nature of the property this defendant further contends that she came to know that during the life time of Lakshmi Kanthamma, herself, the second defendant and his children i.e., the defendants 3 and 4 have executed nominal and collusive documents in favour of the defendants 3 and 5 to 23 relating to plaint ’A’ schedule properties which are collusive and not binding on this defendant and the said alienations are void. She also contended that according to the Hindu Succession Act, the plaintiff, this defendant and the second defendant are the only legal heirs as they succeeded to the estate of their parents and she is also entitled to get 1/3rd share along with the plaintiff and the second defendant as they are in joint and constructive possession of the plaint schedule properties and she has no objection for partition and allotment of her 1/3rd share.
4) Defendants 2, 3 and 4 have field their separate written statements. The defendant No.2 while admitting the relationship between the parties, he denied all the material allegations and that the suit is not maintainable and also denied all the other allegations that the second defendant is trying to alienate the ‘B’ schedule property to others with a view to evade the share of the plaintiff.
It is further contended that the plaint ’B’ schedule property is the absolute property of the second defendant and his son and daughter i.e., the defendants 3 and 4 in the main suit and he is paying land revenue for the land in his possession and enjoyment in his name. He further contended that the marriage of the plaintiff was performed with late
Prabhakara Reddy in the year 1982 and she was given Ac.2.98 cents in
D.No.81/1, 2, 3 of Lingavaram village towards pasupukumkuma gift and got executed an unregistered gift patram to the plaintiff on 25.7.1982 and the possession of the said property was also delivered to the plaintiff along 9 with unregistered gift patram to her on the date of its execution. The plaintiff was in possession and enjoyment of the said property,paid cist to the extent of property in her name for several years and till the property was sold away by her through her father Malireddy Vijaya Rama Raghava
Reddy and this defendant as a major to one Malireddy Venkata
Pitchamma, W/o Narasa Reddy of Lingavaram village vide document No.
4494/1994. The entire sale consideration received thereunder was paid to the plaintiff herein. Likewise the father of the plaintiff has obtained GPA from his elder brother Sri Ram Gopal Reddy and executed a registered sale deed on 29.8.1997 in favour of the said Malireddy Venkata Pitchamma,
W/o Narasa Reddy and paid sale consideration for the said extent of
Ac.1.48 cents to the plaintiff and kept the remaining with him which clearly shows that the plaintiff has enjoyed the Ac.2.98 cents which was given towards her pasupukumkuma till her sale in favour of Venkata
Pitchamma.
It is further contended that the mother of the second defendant while hale and healthy has executed a registered Will dated 4.5.2012 vide document No.44/2012 in Book No.3 on the file of SRO, Koritipadu of
Guntur Town bequeathing her share of property in favour of the plaintiff.
The said Will was subsequently accepted and acted upon, on the death of his mother Lakshmikantamma on 23.6.2012 which fact was known to the plaintiff and other family members; the plaintiff has no right, title and joint possession over the plaint schedule property.
It is further contended that the plaintiff has filed this suit against the defendant suppressing the real facts and tried to obtain some orders behind his back and this defendant reliably came to know that the plaintiff in collusion with some of her henchmen brought into existence a
GPA cum non-possessory agreement of sale on 26.4.2014 in favour of Sri
Pemmasani Murali Krishna and Nutakki Sasankh for a sum of 10 Rs.98,77,000-00 which was suppressed by the plaintiff in her pleadings.
This defendant has also got issued a registered notice dated 20.7.2014 through his advocate demanding the plaintiff and her alienee but having received the said notice they did not choose to give any reply and the suit is filed by the plaintiff as a counter blast with ulterior motive by suppressing the real facts and the plaintiff is not entitled for any share as claimed in the suit and the suit is not maintainable and liable to be dismissed. The boundaries and extents mentioned in the suit schedule are not true and correct, which itself shows that the plaintiff is not aware of the details of the family properties and hence this defendant prays to dismiss the suit
5) The defendants 3 and 4 have also filed separate written statement denying the material allegations raised in the plaint contending that the suit is not maintainable either on law or on facts and the same is liable to be dismissed.
It is further contended that the plaintiff is never in joint possession and enjoyment of the suit schedule properties. The defendants 2 and 3 along with 4th defendant alone are in possession and enjoyment of pliant ‘A’ and ‘B’ schedule properties as they are lawful owners. The further averments in the plaint that the plaintiff recently came to know that her mother Lakshmi Kanthamma and defendants 2 to 4 have executed registered sale deeds in favour of defendants 5 to 23 is absolutely false and incorrect. They have also denied specifically the averments raised in para Nos. 7 and 9 of the plaint and further contended that the other allegations in para No.9 that the plaintiff got issued a registered notice to the defendants on 9.4.2014 through her advocate to which the defendants 2 to 4 have got issued a reply notice dated 9.5.2014 by giving a befetting reply to the counsel for the plaintiff with true state of facts. The counsel for the plaintiff and the plaintiff having received the reply notice has kept 11 quiet and later filed this suit with false contentions and the reply notices if any sent by the other defendants were not within the knowledge of these defendants.
It is further contended that the averments in para 10 of the plaint are in illusory, untenable and invalid. It is further contended that the above suit is filed by the plaintiff that the defendants 2 to 4 alone are the absolute owners of the plaint schedule properties and they are continuing in peaceful possession and enjoyment with ownership till date. The sale of ‘A’ schedule properties by defendants 2 to 4 and late Lakshmi Kanthamma was known to the plaintiff right from the inception of all the sale transactions and the plaintiff has no manner of right or interest or any share and kept quiet all these days and now with an ill-advise of some litigant brokers, has developed eye sore and with a dishonest intention made false and untenable claims against the plaint schedule properties, which are owned by the defendants 2 to 4.
It is further contended that as far as the plaint ‘B’ schedule properties are concerned they are in exclusive and joint possession of the defendants 2 to 4 and never in joint possession of the plaintiff and if the plaintiff creates or concocts any documents bearing No.1442/2014 the same does not create or confer any rights to the deriving parties under the said collusive document.
It is further contended that Malireddy Lakshmi Kantamma has executed a registered Will on 8.5.2012 bequeathing all her absolute properties or her woman estate in favour of her son Malireddy
Venkateswarayya Reddy in a sound and disposing state of mind on her will and volition and as such the plaintiff has no right in any form for any extent to seek any share. The plaintiff being married in the year 1982 and prior to the Amended Provision of Sec. 29 A (4) of Act 13 of 1986 Hindu 12 Succession Act, 1956, she is not entitled to seek any share as a co- parcener since her marriage took place prior to 5.9.1985.
It is further contended that the operation of the Hindu Succession
Amendment Act, 2005, being prospective in nature and that the right conferred on a daughter of coparcener is only from the commencement of the amended Hindu Succession Act, and as the father of the plaintiff late
Malireddy Vijaya Rama Raghava Reddy died on 25.10.1998 itself i.e., prior to 9th September, 2005. The plaintiff cannot inherit any share in the plaint schedule properties as claimed by her even according to the Hindu
Succession Amended Law.
It is further contended that the plaintiff has already took an extent of Ac.2.98 cents of land situated at Lingavaram village, Gudivada Rural
Mandal, towards her pasupu kumkuma by way of unregistered gift deed, took delivery of the said property immediately, paid taxes in her name till it was sold away through her father Malireddy Vijaya Rama Raghava
Reddy to one Malireddy Venkata Pitchamma and took the entire sale consideration for herself and as such she cannot claim any sort of share in the plaint schedule properties. The suit is filed by the plaintiff with an ulterior motive by suppressing the real facts and she is not entitled for any relief as claimed and the suit is liable to be dismissed with exemplary costs.
6) The defendant No.20 has filed his written statement contending that the suit is not maintainable and averments raised in the plaint are incorrect. While denying the averments raised in para No.7,8 and 9 of the plaint, it is the contention of the defendant No.20 that the plaintiff was given an extent of Ac.2.98 cents of land in Lingavaram village towards her share/pasupu kumkuma gift and was given possession and when she was in possession and enjoyment of the same, she paid land revenue/ cist to the above said property in her name for several years and 13 as such the plaintiff took away her share in the joint family properties long back and filed this present suit with false allegations by suppressing the real facts.
It is further contended that the marriage of the plaintiff was performed by her parents long back and her share was given long back and she has no right over the plaint schedule property to seek partition, as her marriage was performed before the Amendment Act, she is not entitled for any share in the properties of her mother or father and the suit is not maintainable.
It is further contended that this defendant has purchased item
No.16 of the plaint ‘A’ schedule property from the defendants 2 to 4 under a registered sale deed dated 19.2.2010 vide document No.654/2010 for a valuable consideration of Rs.4,73,000-00 which was paid to his vendors as recited in the sale deed and the property was also delivered to this defendant and he has been in possession and enjoyment of the same by paying necessary taxes to the concerned authorities. He is a bonafide purchaser for valuable consideration and has been enjoying the same without interruption from anybody at any time which is known to the villagers and land owners including the plaintiff and defendants. The plaintiff and the first defendant have collusively filed the instant suit and with a malafide intention to cause wrongful loss to this defendant to obtain wrongful gain by showing the properties which are already alienated long back which are in the possession and enjoyment of the purchasers which are enjoyed by them with absolute rights and hence the suit is not maintainable and the plaintiff did not give any notice to this defendant prior to purchase of the property and there are no boanfides in the suit and there is no cause of action, hence, the suit may be dismissed.
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7) The defendant No.21 has also filed written statement denying the material averments contending inter alia that the plaintiff was given her share long back. His plea is similar to the plea raised by the defendant
No.20 and he further contended that this defendant is bonafide purchaser of item No.17 of the plaint ‘A’ schedule property under a registered sale deed vide document No.2007/2010 dated 20.4.2010 on the file of SRO,
Gunadala for valid consideration and the vendors i.e., Lakshmi
Kanthamma and defendants 2 to 4 have delivered the physical possession of item No.17 of the plaint ‘A’ schedule property to the defendant and since then she has been in possession and enjoyment of the same without any interruption from anybody from any corner which is known to one and all including the plaintiff and the defendants.
It is further contended that the plaintiff with a malafide intention to cause wrongful loss to this defendant and to get unlawful benefit filed this false suit by showing the properties which were already alienated long back and in the possession & enjoyment of the purchasers and there is no boanfides and no cause of action to file the suit and the suit may be dismissed.
8) The defendant No.22 has also filed written statement denying the material averments and contending that the plaintiff was given an extent of Ac.2.98 cents of land in Lingavaram village towards her share/pasupu kumkuma gift and was given possession and when she was in possession and enjoyment of the same, she paid land revenue/cist to the above said property in her name for several years and as such the plaintiff took away her share in the joint family properties long back and filed this present suit with false allegations by suppressing the real facts.
It is further contended that the marriage of the plaintiff was performed by her parents long back and her share was given long back and she has no right over the plaint schedule property to seek partition, 15 as her marriage was performed before the Amendment Act, she is not entitled for any share in the properties of her mother or father and the suit is not maintainable.
It is further contended that this defendant has purchased item
No.18 of the plaint ‘A’ schedule property from defendants 2 to 4 under a registered sale deed dated 27.7.2010 vide document No.4642/2010 for a valuable consideration of Rs.3,30,000-00 and possession was also delivered to this defendant and she has been in possession and enjoyment of the said property by paying necessary taxes to the concerned authorities without any interruption from anyone at any time.
It is further contended that the plaintiff with a malafide intention to cause wrongful loss to this defendant and get unlawful benefit filed this false suit by showing the properties which was already alienated long back and in the possession & enjoyment of the purchasers and there are no boanfides and no cause of action to file the suit and the suit may be dismissed.
6) Basing on the above pleadings, my learned predecessor has settled the following issues for trial:-
1. Whether the plaint schedule properties are in joint and constructive possession of the plaintiff and the defendants 1 and 2?
2. Whether the plaint ‘B’ schedule properties are in exclusive and joint possession of defendants 2 to 4?
3. Whether the 20th defendant is boanfide purchaser in respect of item No.16 of plaint ‘A’ schedule property?
4. Whether the defendant No.22 is bonafide purchaser in respect of item No.18 of the plaint schedule property?
5. Whether the defendant No.21 is bonafide purchaser in respect of item No.17 of the plaint schedule property?
6. Whether the alienations made by Lakshmi Kantamma and the defendants 2 to 4 in favour of defendants 3, 5 to 23 are binding on the plaintiff?
7. Whether the plaint schedule properties are liable for partition?
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8. Whether the plaintiff is entitled for partition of plaint ‘A’ schedule property into three equal shares and for allotment of one such share as prayed for?
9. Whether the plaintiff is entitled for partition of plaint ‘B’ schedule property into three equal shares and for allotment of one such share as prayed for?
10. Whether the plaintiff is entitled for mesne profits as prayed for?
11. Whether the suit is properly valued for the purpose of court fee?
12. To what relief?
7) To substantiate the case of the plaintiff, P.W.1 was examined and Exs.A.1 & A.23 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and EXs.B.1 to B.18 were marked.
8) ISSUES1, 2 AND 7 to 9:
All these issues are inter-related, hence they are discussed together for the sake of convenience.
9) On behalf of the plaintiff, she got herself examined as P.W.1 and
Exs.A.1 to A.23 marked. On behalf of the defendants, the first defendant has filed the chief affidavit as D.W.1 but no documents are marked on behalf of defendant No.1. The defendants No.2 has got examined himself as D.W.2 and also D.Ws 3 and 4 and got marked Exs.B.1 to B.18.
Ex.A.1 is the death certificate of Malaireddy Lakshmikanthamma dated 23.6.2012; Ex.A.2 is the registration extract of Regd.sale deed dated 31.5.2008; Ex.A.3 is the Regd.possessory agreement-cum-GPA dated 30.7.2008; Ex.A.4 is the Registration extract of Regd.sale deed dated 11.8.2011; Ex.A.5 is the Registration extract of Regd.sale deed dated 10.4.2008 doc.No.1623/2008; Ex.A.6 is the Registration extract of
Regd.sale deed dated 10.4.2008 doc.No.1624/2008; Ex.A.7 is the
Registration extract of Regd.sale deed dated 10.4.2008 doc.No.1625/2008;
Ex.A.8 is the Registration extract of registered sale deed dated 31.5.2008;
Ex.A.9 is the Registration extract of registered possessory agreement-cum- 17 GPA dated 31.5.2008; Ex.A.10 is the Registration extract of registered sale deed dated 29.7.2008, doc.No.3697/2008; Ex.A.11 is the Registration extract of registered sale deed dated 29.7.2008, doc.No.3698/2008;
Ex.A.12 is the Registration extract of registered sale deed dated 29.7.2008, doc. No.3700/2008; Ex.A.13 is the Registration extract of registered sale deed dated 30.7.2008, doc.No.3745/2008; Ex.A.14 is the Registration extract of registered sale deed dated 11.8.2011; Ex.A.15 is the
Registration extract of registered sale deed dated 21.8.2008; Ex.A.16 is the Registration extract of registered sale deed dated 19.2.2010; Ex.A.17 is the Registration extract of registered sale deed dated 20.4.2010;
Ex.A.18 is the Registration extract of registered sale deed dated 27.7.2010; Ex.A.19 is the Registration extract of registered sale deed dated 30.7.2008; Ex.A.20 is the Registration extract of registered sale deed dated 29.7.2008; Ex.A.21 is the O/c of Regd.notice dated 9.4.2014; Ex.A.22 is the Reply notice dated 9.5.2014; Ex.A.23 is the CC of compromise decree in O.S.No.15/1949 dated 24.10.1949 of Hon’ble District Judge, Krishna,
Machilipatnam.
The documents filed for defendants No.2 to 4 are Ex.B.1 is the Cist receipt dated 22.7.2014 bearing No. 8554027; Ex.B.2 is the Cist receipt
dated 22.7.2013 bearing No.8346411; Ex.B.3 is the Cist receipt dated
22.7.2013 bearing No. 8346412; Ex.B.4 is the Cist receipt dated 25.2.2017 bearing No.0337216; Ex.B.5 is the Land revenue receipt dated 1.3.1986 for F.1395 in respect of Ac.2.98 cents of land; Ex.B.6 is the
Land drainage fee receipt dated 1.3.1986 for F.1395 in respect of Ac.2.98 cents of land; Ex.B.7 is the Land revenue receipt dated 25.7.1987; Ex.B.8 is the Drainage cess receipt dated 25.7.1987 for Faslies 1395, 1397 in respect of Ac.2.98 cents of land; Ex.B.9 is the Drainage Maintenance fund receipt dated 25.7.1987 for faslie 1396 in respect of Ac.2.98 cents of land;
Ex.B.10 is the Land revenue receipt dated 23.12.1988 for faslies 1395 to 18 1398 in respect of Ac.2.98 cents of land Ex.B.11 is the Drainage cess
dated 23.12.1988 for faslies 1395 to 1398 in respect of Ac.2.98 cents of
land; Ex.B.12 is the Drainage cess receipt dated 15.3.1991 for faslies 1400, 1401 in respect of Ac.2.98 cents of land; Ex.B.13 is the land revenue receipt dated 15.3.1992 for faslie 1401 in respect of Ac.2.98 cents of land; Ex.B.14 is the registration extract of Regd.sale deed dated 14.11.1994 bearing Doc.No.4494; Ex.B.15 is the Regd. Will dated 4.5.2012 bearing Doc.No.44 in book No.3 of SRO, Koritepadu; Ex.B.16 is the Registration extract of Regd.sale deed dated 18.6.1994 bearing
Doc.no.461; Ex.B.17 is the Registration extract of registered possessory agreement of sale dated 26.3.2014 and Ex.B.18 is the Registration extract of Regd.sale deed dated 29.8.1997
10) Both the parties have submitted their oral as well as written arguments in respect of their respective contentions. The contention of the learned counsel for the plaintiff is that the plaint schedule property along with some other propertiesoriginally belongs to one Malireddy Ayyareddy and he has wife namely Seshamma and he acquired those properties during his life time. The said Malireddy Ayyareddy has two sons namely
Rama Gopala Reddy, who is his adopted son and Vijaya Rama Raghava
Reddy. The plaintiff, defendants 1 and 2 are the daughter and sons of
Vijaya Rama Raghava Reddy respectively and the defendants 3 and 4 are the son and daughter of the second defendant respectively. The wife of
Vijaya Rama Raghava Reddy is one Lakshmi Kantamma. After the demise of Malireddy Ayyareddy his adopted son namely Malireddy Rama Gopala
Reddy and his minor son Devakumara Reddy have filed a suit in
O.S.No.15/1949 before the District Court, Krishna District,
Machilipatnam for partition against Malireddy Vijaya Rama Raghava
Reddy. During pendency of the said suit in O.S.No.15/1949 both the 19 brothers have compromised and by virtue of the said compromise ‘B’ schedule properties in the said suit, fell to the share of Vijaya Rama
Raghava Reddy whereas ‘A’ schedule properties in the said suit fell to the share of Rama Gopala Reddy and since then they have been enjoying their respective properties and Vijaya Rama Raghava Reddy was enjoying the said ‘B’ schedule properties with absolute rights.
During his life time the said Vijaya Rama Raghava Reddy has sold away some of the ‘B’ schedule properties which he got by virtue of compromise in O.S.No.15/1949 and later he died intestate on 25.10.1998 leaving behind him, his wife namely Lakshmi Kanthamma and the plaintiff and the defendants 1 and 2 as his class-I legal heirs and therefore the plaintiff and defendants 1 & 2 being class-I legal heirs of Vijaya Rama
Raghava Reddy have equal shares with absolute rights. The plaintiff was married to one Prabhakara Reddy of Gudibandivaripalem village, Kollipara
Mandal of Guntur District. Subsequently Lakshmi Kanthamma who is the wife of Vijaya Rama Raghava Reddy also died intestate on 23.6.2012 leaving behind the plaintiff and defendants 1 & 2. After the death of Vijaya
Rama Raghava Reddy his wife Lakshmi Kanthamma, the plaintiff and the defendants 1 and 2 have succeeded to the entire plaint A & B schedule properties herein, out of which item Nos. 1 to 19 of plaint ‘A’ schedule properties in S.No.193 of Nagavarappadu village and ‘B’ schedule property an extent of Ac.5.56 ½ cents of Valivarthipadu village is the same property which fell to the share of Vijaya Rama Raghava Reddy by virtue of the compromise in O.S.No.15/1949 and the plaintiff and the defendants 1 & 2 being the class-I legal heirs of Vijaya Rama Raghava Reddy and
Lakshmi Kantamma have succeeded to the plaint ‘A’ & ‘B” schedule properties under the Hindu Succession Act, 1956 and they have got equal rights and are in joint possession and enjoyment of the suit schedule properties. The plaintiff came to know that her mother Lakshmi 20 Kanthamma along with defendants 2 to 4 have executed registered sale deeds in favour of defendants 5 to 23 under different sale deeds on the file of SRO, Gudivada in respect of item Nos.1 to 19 of plaint ‘A’ schedule property by dividing the ‘A’ schedule property into plots and late Lakshmi
Kanthamma and defendants No.2 & 4 have also executed a registered gift deed in the name of the third defendant in respect of item No.3 of the plaint ‘A’ schedule property vide document No.3701/2008 dated 29.7.2008 in favour of the third defendant. The said alienations made by
Lakshmi Kanthamma and defendants 2 to 4 and also the gift deed made by Lakshmi Kanthamma and defendants 2 to 4 in favour of defendants 5 to 23 and the registered gift deed executed by Lakshmi Kanthamma and defendants No.2 and 4 in respect of item No.3 of plaint ‘A’ schedule property are not valid and binding on the plaintiff and no rights have acquired by defendants No.5 to 23 and also no rights are accrued to defendant No.3 by virtue of the above said alienations as defendants 2 to 4 have no absolute exclusive rights and the sale/gift deeds executed in favour of defendants 3 and 5 to 23 are illegal and they have no exclusive rights over the plaint ‘A’ schedule property since in the said alleged documents are also it is categorically mentioned that Vijaya Rama
Raghava Reddy died intestate on 25.10.1998. Since the said Lakshmi
Kanthamma died intestate even according to the second defendant the said transactions are not valid and binding since the plaintiff and defendants No.1 and 2 are the only class-I legal heirs of late Malireddy
Vijaya Rama Raghava Reddy and these documents executed in favour of defendants 3 and 5 to 23 are nominal and collusive documents and brought into existence by the said Lakshmi Kanthamma along with defendants 2 to 4 and 5 to 23 to deprive the rights of the plaintiff and as such the alleged sale deeds as well as gift deed etc., are null and void and they are ineffective, inoperative, non-est, null and void in the eye of law 21 and no rights are accrued to the parties under the said alleged documents as they are executed to defeat the rights of the plaintiff and defendant
No.1.
It is further contended that during the life time of Lakshmi
Kantamma the plaintiff has requested the said Lakshmi Kanthamma and defendants 1 & 2 also to co-operate for partition of the plaint ‘A’ & ‘B’ schedule properties the defendants No.1 and 2 to 4 are admitting partition but postponing the same on some pretext or other.
Finally got vexed the behavior of the defendants 1 and 2 were not co-operating for partition, the plaintiff got issued a registered notice to the defendants on 9.4.2014 through her advocate demanding them to co- operate for partition. The defendants 2 to 4 have got issued a reply notice
dated 9.5.2014 through their counsel with false and untenable
allegations. Among the other defendants they received the said notice but kept quiet. While defendants No.5,14,15,16,17,19 and 22 have wantonly returned the registered notice with false endorsements. Therefore the plaintiff having felt that it is no longer beneficial to continue joint with the defendants 1 and 2, has filed the suit for partition of the entire A & B schedule properties into three equal shares and allot one such share to her and also for mesne profits from the date of suit till the date of delivery of the schedule property to her.
It is further contended that since the plaintiff and defendants 1 & 2 are in joint possession of the ‘B’ schedule property, a fixed court fee is paid in respect of plaint ‘B’ schedule property U/s.34 (2) of A.P court fee and Suits valuation Act, 1956, and advalorem court fee is paid in respect of plaint ‘A’ schedule property as the property was sold away to the defendants 5 to 23 while item No.3 of the plaint ‘A’ schedule property was gifted to defendant No.3. It is further contended that the contentions raised by the defendants are false and the allegations made in respect of 22 defendants 3 and 5 to 23 are not valid and the plaintiff therefore prays to decree the suit as prayed for by passing preliminary decree.
11) It is further contended by the learned counsel for the plaintiff that the plaintiff as P.W.1 has reiterated the same facts mentioned in the plaint and marked Exs.A.1 to A.23 on her behalf to prove the plaintiff’s case.
It is the contention of the learned counsel for the plaintiff that the property which was given to the father of plaintiff and D.1 & D.2 by way of compromise decree in O.S.No.15/1949 is the property of their father and as he died intestate on 25.10.1998 leaving behind him the plaintiff, the defendants 1 & 2 and also his wife namely Lakshmi Kanthamma who also died intestate subsequently on 23.6.2012 and therefore the plaintiff and defendants 1 & 2 being the class-I legal heirs of the said Malireddy Vijaya
Rama Raghava Reddy and his wife Lakshmi Kanthamma are entitled for equal shares in the plaint A & B schedule properties. Even the recitals in the sale deeds allegedly executed by Lakshmi Kanthamma along with defendant No.2 and his children i.e., defendants 3 and 4 in favour of defendants No.5 to 23 clearly show that without any oral or documentary settlement the said Malireddy Vijaya Rama Raghava Reddy died intestate on 25.10.1998 and as such Lakshmi Kanthamma and defendants 2 to 4 have acquired equal rights as per Hindu Succession Act over the schedule property and also some other property and they have been enjoying the same and as such they are selling away the said property, clearly show that the documents under Exs.A.3 to A.19 and A.21 to A.23 and from the recitals itself clearly show the nature of the property how the defendants 2 to 4 and Lakshmi Kanthamma have acquired and as such they do not have any exclusive right to sell away item Nos. 1, 2 and 4 to 19 in favour of third parties and as per Ex.A.20 registered gift deed allegedly executed 23 in favour of D.3 it clearly recites that the plaint schedule property was acquired by the husband of first party, the father of second party and grand father of 3 and 4 parties i.e., Malireddy Vijaya Rama Raghava Reddy in I.A.No.864/1969 in O.S.No.15/1949 and the same was acquired by them as Malireddy Vijaya Rama Raghava Reddy died intestate on 25.110.1998 without executing any document, leaving them as his legal heirs and succeeded by them by way of inheritance jointly which also clearly shows that even the gift deed executed in favour of D.3 shows the jointness of the property acquired by way of succession as Malireddy
Vijaya Rama Raghava Reddy died intestate and since the plaintiff is also the legal heir of the said Malireddy Vijaya Rama Raghava Reddy neither his wife Lakshmi Kanthamma nor his son i.e., the second defendant nor his grand children i.e., defendants 3 and 4 have got any exclusive right to dispose of the same in favour of the defendant No.3 by way of gift deed and as such neither the sale deeds executed by late Lakshmi Kanthamma and defendants 2 to 4 in favour of D.5 to D.23, nor the gift deed executed by the said late Lakshmi Kanthamma and defendants 2 & 4 in favour of
Defendant No.3 are valid and binding.
It is further contended that D.2 has categorically admitted during his cross-examination dated 29.9.2021 that Malireddy Ayyareddy is his paternal grand father and the plaint schedule property and some other property belong to Malireddy Ayyareddy and he had two grand daughters and one grand son, the plaintiff, the first defendant and himself (D.W.2) are grand children of Malireddy Ayyareddy
It is further contended that the said property under the plaint A & B schedule was being jointly enjoyed by the plaintiff and defendants 1 & 2 and Lakshmi Kantamma subsequent to the death of Malireddy Vijaya
Rama Raghava Reddy and also by the plaintiff and D.1 and D.2 jointly subsequent to the death of Lakshmi Kanthamma as they both died 24 intestate without executing any document in writing and as such the plaintiff is entitled for her share of 1/3rd in the suit schedule properties.
It is further contended that the alleged Will deed under Ex.B.15 under which the defendant No.2 is claiming exclusive rights over the plaint schedule property is not valid document and late Lakshmi
Kanthamma has no exclusive right to execute a Will deed in favour of D.3 in respect of plaint schedule properties defeating the rights of the plaintiff and the said Will deed is clouded by suspicion and it has no validity since
Lakshmi Kantamma has no separate property of herself to execute the Will deed and she has no exclusive right to execute the same which is against the rights of the plaintiff and as such the alleged Will deed is not a legally valid document as she cannot execute the said document without having any manner of right for herself exclusively over the plaint schedule property.
It is further contended that the alleged Will executed by the mother of plaintiff Lakshmi Kanthamma clearly shows that the husband of
Lakshmi Kanthamma i.e., Malireddy Vijaya Rama Raghava Reddy died in 1998 leaving behind him, his wife Lakshmi Kanthamma (testatrix) and his two daughters i.e., plaintiff and first defendant namely Y.Jagadeeswari and his only son namely Venkateswara Ayya Redy (D.2) and therefore even according to the Will, only the plaintiff and D.1 & D.2 are the class-I legal heirs of the deceased Ayyareddy, who are entitled to claim share.
Further there is no recital in the said Will deed executed and marked as
Ex.B.15 that the plaintiff was given an extent of Ac.2.98 cents of land at
D.No.81/1,.2, 3 of Lingavaram village towards her share as pasupu kumkuma gift and got executed an unregistered gift patram to the plaintiff on 25.7.1982 and possession of the said property was also delivered to the plaintiff. Subsequently after enjoying the same by paying cist receipts she has sold away the said property through her father and the second 25 defendant, to one M.V.Pitchamma under registered sale deed and so also by way of GPA and paid the sale consideration amount to the plaintiff which is evident from Ex.B.15. Further D.W.2 has admitted in his cross- examination that his mother had no properties of her own except the property owned by their father and himself and his mother sold away the properties under Exs.A.3 to A.20 along with his children i.e., defendants 3 & 4 etc., clearly shows that Lakshmi Kantamma has no exclusive right either to sell away the property under Exs.A.3 to A.20 to third parties or to execute Ex.B.15 Will deed in favour of D.2 as she does not have any right to execute the Will deed or to alienate the properties which belong to her husband late Malireddy Vijaya Rama Raghava Reddy. Further as admitted by D.W.2 during his cross-examination, he did not plead about the unregistered gift deed in favour of the plaintiff for an extent of Ac.2.98 cents and there is no recital that the entire sale consideration under
Ex.B.18 was paid to the plaintiff and there is no clear proof to show that the plaintiff got sold an extent of Ac.2.98 cents through his father and the entire sale consideration was given to her which clearly shows that the contention of D.2 that the plaintiff was already given her share towards pasupukumkuma an extent of Ac.2.98 cents during the life time of
Malireddy Vijaya Rama Raghava Reddy is false and the same is not proved and the same was not also mentioned in the document filed by the second defendant and there is no such unregistered gift patram executed and given towards pasupukumkuma to the plaintiff for an extent of
Ac.2.98 cents D.No.81/1,2,3 of Lingavaram village.
It is further contended that in view of the admissions made by
D.W.2 (D.2) in his cross-examination, the defendants 1 & 2 and the plaintiff being class-I legal heirs and as their father died intestate and as the plaintiff and defendant 1 & 2 have got joint, equal, absolute undivided shares in the plaint A & B schedule properties defendants 2 to 4 along 26 with Lakshmi Kanthamma cannot sell and execute any documents without having any absolute rights fraudulently and illegally by alienating the ‘A’ schedule properties in favour of Defendants 3 and 5 to 23 and the alleged registered gift deed dated 29.7.2008 executed by Laksmi
Kantamma and D.2 and D.4 in favour of D.3 namely Malireddy Dinesh
Reddy with regard to item No.3 of the plaint schedule property for an extent of 222.75 sq.yards in plot No.12 in resurvey No.193 of
Nagavarappadu village is null and void and not binding on the plaintiff and the plaintiff is not accepting the said gift deed as Lakshmi
Kanthamma, second defendant and defendant No.4 have no right to execute gift deed in favour of third defendant and the said gift deed is also not proved as the defendant No.3 did not enter into the witness box and no attesting witness of the said gift deed was examined to prove the execution in favour of D.3 and as per Sec. 68 of the Indian evidence Act non-examination of attesting witness to gift deed to prove its execution and not assigning any reason for such non-examination does not amount to proof of validity and the binding nature of the gift deed and as such the gift deed was acted upon is of no avail u/s.123 of Transfer of Property
Act, as held in 2014(6) ALD page 72 at page 74.
It is further contended that since the father of the plaintiff and defendants 1 & 2 i.e., Malireddy Vijaya Rama Raghava Reddy has got the plaint A & B schedule properties under the compromise decree in
O.S.No.15/1949 and since then he has enjoyed the said properties with
absolute rights and sold some of them to others and died intestate on 25.10.1998 leaving behind him, his wife Lakshmi Kantamma and his three children i.e., plaintiff and defendants 1 & 2 and the plaintiff being the class-I legal heir of said Malireddy Vijaya Rama Raghava Reddy has got equal share with absolute rights and as item Nos. 1 to 19 of plaint ‘A’ schedule property an extent of Ac.1.39 cents out of Ac.6.39 cents in 27 D.No.193 of Nagavarappadu village and ‘B’ schedule property an extent and some of the properties out of ‘B’ schedule property, fell to the share of plaintiff’s father under the said compromise decree and therefore the plaintiff is entitled to 1/3rd share along with defendants 1 & 2 and as per the Hindu Succession Act, 1956 and 29-A Amendment Act and the
Parliament has removed the stipulation that the marriage of the daughters should not have been performed before 5.9.1985 and provided that all the daughters would be deemed to be coparceners without making any reference to their marriage with one exception that partition should not have taken place before 20.12.2004 and if the daughter is alive on the date of enforcement of the Amendment Act, she became a coparcener with effect from the date of Amendment Act, irrespective of her birth at the earlier point of time and as per the amended Sec. 6 the right is given by birth but not by dint of inheritance, it is irrelevant that a coparcener is not based on the death of a father or other coparcener and since the possession of one coparcener is presumed to be possession of all coparceners as per the case law and the plaintiff is entitled for 1/3rd share and without a prayer for cancellation of sale deeds executed by coparceners of plaintiff without authority for cancellation of sale deeds, is maintainable as per the settled law and hence even as per the ruling of the Full Bench judgment of the Hon’ble Suprme Court reported in 2020(5) ALT 1 SC and also the ruling in 2021(4) ALT 383 (DB)(TS) the marriage of the daughter should not have been performed before 5.9.1985 which stood as a bar, has been removed by the Parliament and as such all the daughters would be deemed to be coparceners without making any reference to their marriage with one exception that partition should not have taken place before 20.12.2004 and as such the contention of the learned counsel for the second defendant that the marriage of the plaintiff 28 was performed prior to 5.9.1985 does not stand in the way of the plaintiff to claim her 1/3rd share along with D.1 and D.2.
It is further contended that the cist receipts filed by D.2 during his evidence under Exs.B.5 to B.13 in the name of the plaintiff were not genuine and they are brought into existence by D.2 to support his false contention and how the said cist receipts went into the custody of D.W.2 is doubtful and therefore the said receipts are brought into existence by
D.W.2 with a view to support his false contention. The learned counsel for the plaintiff has also submitted the following rulings in support of the plaintiff’s case.
12) Contrary to the arguments submitted by the learned counsel for the plaintiff, the learned counsel for the second defendant has also submitted his oral as well as written arguments contending that the plaintiff filed the suit for partition of plaint A & B schedule properties. The burden lies upon the plaintiff to establish that she is entitled for 1/3 share out of plaint A & B schedule properties.
It is further contended that except the plaintiff no other witnesses are examined in support of the plaintiff’s case. The documents filed by the plaintiff under Ex.A.3 discloses that the father of the plaintiff and D.1 &
D.2 have got plaint A & B schedule properties towards his share (compromise decree in O.S.No.15/1949), though the plaintiff has pleaded in her plaint that she has got absolute right in the plaint A & B schedule properties as class-I legal heir of her deceased father U/s. 8 of the Hindu
Succession Act, but while coming to the cross-examination she has given up her pleadings and deposed that she got right in the plaint A & B schedule properties as they are her ancestral properties. At page No.3 the first sentence of the cross-examination of P.W.1 clearly shows that she has admitted that she filed the suit for partition as it is her ancestral property and she has got right which is totally different from her pleadings 29 with regard to her right to share in the above said properties. Nowhere in the plaint she has pleaded that the plaint schedule properties are her ancestral properties, the only document filed by the plaintiff i.e., Ex.A.23 does not establish that the plaint schedule properties are the ancestral properties of the plaintiff but it only discloses that the division of the properties between Malireddy Vijaya Rama Raghava Reddy (father of the plaintiff and D.1 & D.2) and his brother Rama Gopala Reddy along with his minor son Deva Kumar Reddy in respect of their joint properties but it would not establish that the property covered in O.S.No.15/1949 is their ancestral property.
It is further contended that if the disputed fact has to be established a positive evidence has to be let in by the party relying on it. But in this case the plaintiff has failed to let in evidence to establish that the plaint A and B schedule properties are her ancestral properties. Further in order to establish that the property comes under ancestral property it has to be succeeded from three generations ascending from the propositus and that the plaintiff should be 4th generation member from the ancestors but there is no such evidence to establish the fact that the plaintiff is 4th generation member from her ancestor, but she is only the second generation member i.e., from her father’s generation. Further the plaintiff did not file any document that the plaint ‘A’ & ‘B” schedule properties were enjoyed by her paternal grand father and late grand father and atleast to show that how Malireddy Vijaya Rama Raghava Reddy and his brother
Ramgopala Reddy got the properties described in O.S.No.15/1949.
It is further contended by the learned counsel for the defendant
No.2 that when the plaintiff deposed evidence contrary to her pleadings the same cannot be taken into consideration as per the ruling reported in 2011(2) ALT page No.44 (SC) wherein the Apex court has held that “a party must plead the material fact and adduce evidence to substantiate 30 the same, so that the court may proceed to adjudicate upon that issue. It was also held in the same decision that the court cannot consider any fact which is beyond the pleadings of the parties and that as a rule relief not founded on pleadings should not be granted.” The above dictum would aptly apply to the case on hand as the plaintiff has given up her case as pleaded in the plaint and the relief sought by the plaintiff is not based on her pleadings coupled with her evidence.
It is further contended that the plaintiff is not entitled for a share in the plaint ‘A’ & ‘B’ schedule properties according to Hindu Succession
Amendment Act, 39/2005 since prior to coming into force of the said Act, there was an amendment to the Hindu Succession Act, 13/1986 which came into force with effect from 5.9.1985, according to which the daughters married prior to 5.9.1985 would not become coparceners in the joint family and they would not become equal to that of sons. In the case on hand both the plaintiff and the first defendant were married long back even prior to 5.9.1985 as admitted by P.W.1 in her cross-examination at page No.2 and the first defendant being her elder sister, her marriage might have been solemnized even prior to the marriage of the plaintiff.
It is further contended that it is an undisputed fact that the father of the plaintiff and defendants 1 & 2 died on 25.10.1998 which occurred prior to Hindu Succession Amendment Act, 39/2005 came into force. In such a case, succession would open according to the law in force as on the date of his death. As per the ruling reported in 2017(1) ALT page 164 and 169, the law governing Hindus on the date of opening of succession is alone applicable to such Hindus but not the law which came into force subsequent to commencement of amended Succession Act, since the
Act, 39/2005 came into force subsequent to the death of the father of the plaintiff and defendants 1 & 2 i.e., on 9.9.2005 the same would not apply to the plaintiff.
31 It is further contended that the rulings cited by learned counsel for the plaintiff i.e., (1) 2020(5) ALT page 1(SC); (2) 2021(1) ALT page 158
(SC) and (3) 2021(4) ALT 383 (DG) (SC) at para Nos.147, 161 and 162
of the arguments submitted by the learned counsel for the plaintiff, Under
Sec. 6 of Hindu Succession Act, are not applicable to the plaintiff’s case as contended in her pleadings. It is mentioned in the arguments that the plaintiff is claiming partition of plaint ‘A’ & ‘B’ schedule properties as intestate Succession of her mother and father and the plaintiff has no right to adduce evidence without pleadings. At this juncture as per the ruling reported in 2022(5) ALT page 9(SC) in which it is held that “the relief not found on pleadings should not be granted. If a court considers or grants a relief for which no prayer or pleading was made depriving the respondents of an opportunity to oppose or resists such relief, it would lead to miscarriage of justice. It is further contended that if the suit of the plaintiff is decreed basing on the coparcenery rights under Sec. 6 of Hindu
Succession Amendment Act, 2005 there is no pleading in the plaint.
Though the relief of partition would be one and the same in case of intestate succession and the coparcener right under Section 6 of Hindu
Succession Amendment Act, 2005, but the relief should be granted only based on the specific pleadings taken in the plaint but not by being liberal in granting the relief of partition as they are two different contentions which have to be adjudicated giving an opportunity to both the parties and as such the arguments of the plaintiff’s counsel is not tenable according to law.
It is further contended that there is no piece of evidence from the plaintiff to prove that the plaint ‘A’ & ‘B’ schedule properties are in joint and constructive possession of the plaintiff and the defendants 1 & 2.
During cross-examination P.W.1 has categorically admitted that after the death of her parents, the second defendant enjoyed the income from the 32 plaint schedule properties and they are in the possession of the second defendant and therefore the plaintiff failed to establish the joint and constructive possession of the plaint schedule property as pleaded by her in the plaint.
It is further contended that at the time of marriage the plaintiff was gifted an extent of Ac.2.98 cents of land by her father towards her pasupukumkuma. To establish the said fact the defendant filed Ex.B.14 which is a registration extract of the registered sale deed dated 14.11.1994 executed by the father of the plaintiff and defendants 2 & 3 by which time the third defendant was a minor and was represented by the second defendant as his guardian. In the said document it has been specifically recited that “ మా అవసరం నిమిత్తం అనగా తెనాలి తాలూకా కొలిిపర
కాపురస్తతరాలు రెడ్డం ప్పభాకర్ భారయ పద్మ జ గారికి మేము ఇవవ వలసిన
సొముమ ఇచ్చు టకు గాను ” which clearly shows that it is an extent of
Ac.1.56 cents out of Ac.2.98 cents, was sold to give the amount to the plaintiff. To establish the same the second defendant has examined the husband of the purchaser as D.W.4, who supported the recitals in
Exs.B.14 and B.18 by which the plaintiff has received the total sale consideration amount covered by Exs.B.14 and B.18 from the purchaser.
D.w.4 who is a resident of Lingavaram village is neither relative nor friend of the second defendant and he had deposed what had happened before him at the time of execution of Ex.B.14 & B.18 and therefore his evidence is independent and as such reliable and trustworthy.
It is further contended that D.W.1 who is the elder sister of the plaintiff has categorically admitted in her cross-examination that there is a caste custom to announce pasupukumkuma gift in Reddy caste and also admitted that her father has announced pasupukumkuma gift to her at the time of her marriage but as her husband was an educated person he did not accept the pasupukumkuma gift and her parents gave 33 Rs.5,000-00 cash to her husband at the time of her marriage. She also admitted that at the time of marriage of the plaintiff also, her parents announced pasupukumkuma gift to the plaintiff in respect of Ac.2.50 cents of land which would probablize the contention of the second defendant that his father announced pasupukumkuma gift of Ac.2.98 cents land to the plaintiff. The evidence of D.W.1 who is no other than the elder sister of the plaintiff and who is not having enemical terms with the plaintiff would probablize the case of the second defendant that the parents of the plaintiff announced pasupukumkuma gift to her. The recitals in Ex.B.14 referred to above coupled with the admissions of D.W.1 clearly establish that the land was given to the plaintiff towards pasupukumkuma and sold away for her benefit and the amount was handed over to the plaintiff and D.W.4 has also supported the case of the second defendant in connection with the payment of consideration under
Ex.B.14 and B.18 to the plaintiff.
It is further contended that till the sale of the above said Ac.2.98 cents the plaintiff has enjoyed the income from it and also paid cist in respect of the said property which is evident from Exs.B.5, B.7, B.10 and
B.13 land revenue receipts issued in the name of the plaintiff in respect of said Ac.2.98 cents of land. The above receipts are pertaining to the years 1986, 1987, 1988 and 1992. Ex.B.6 is the drainage fund receipt. Exs.B.8,
B.11 and B.12 are the drainage cess receipts in respect of the said land.
Ex.B.9 is the drainage maintenance fund receipt. Therefore Exs.B.5 to
B.13 which were issued by the VRO in the name of the plaintiff also probablize the contention of the second defendant that she is the owner of the said Ac.2.98 cents and enjoyed the income till she has sold away the same.
It is further contended that as per Ex.B.14 an extent of Ac.1.50cents land is sold for a consideration of Rs.40,500-00 and the plaintiff has 34 purchased the property covered under Ex.B.16 along with structures from the advance sale consideration received from the purchaser under
Ex.B.14. The plaintiff has no independent source of income of her to purchase the property covered under ex.B.16 and she is not an employee and did not possess any other property other than the property covered by
Exs.B.14 and B.18. The plaintiff received the consideration amount of
Rs.79,200-00 under Ex.B.18 from the purchaser for the land covered under Ex.B.18 which is Ac.1.50 cents of land.
It is further contended that the description of extent in plaint ‘A’ schedule property is not correct as it was described as Ac.1.39 cents with four boundaries. Item Nos.1 to 19 are part of Ac.1.39 cents for which the plaintiff has paid advoleram court fee in respect of the entire Ac.1.39 cents U/s. 34(1) of A.P.C.F & S.V.Act whereas the total extent of all the above items 1 to 19 together will come to Ac.0.80cents only and as far as the remaining Ac.0.59 cents out of said Ac.1.39 cents is concerned there is no whisper about in whose possession the said land is lying and who are enjoying the remaining Ac.0.59 cents which is neither pleaded in the plaint nor in her evidence by the plaintiff.
It is further contended that the second defendant is not in possession of the remaining Ac.0.59 cents of land out of the Ac.139 cents and as such the said Ac.0.59 cents is not liable for partition in the suit.
Further as the plaintiff failed to implead all the properties of Malireddy
Vijaya Rama Raghava Reddy in the suit, the suit for partition in respect of some portion of joint properties of the deceased is not maintainable and therefore the payment of court fee in the plaint so far as ‘A’ schedule property is concerned is not correct and the suit is liable to be dismissed and the plaintiff is not entitled to claim her share.
It is further contended that the rulings as cited by the learned counsel for the plaintiff are not applicable to the facts of the case as 35 submitted by supra and the above decisions are applicable only in respect of joint family ancestral properties but not other kind of properties since the plaintiff is claiming her share as class-I legal heir but not as coparcener. Likewise the ruling as cited by the plaintiff counsel reported in 2008(2) ALT Page 104 (DB) is also not applicable to the case on hand since pasupukumkuma gift was announced to the plaintiff in the year 1982 when her marriage was performed and the law was in force as on that date as far as the caste custom in respect of pasupukumkuma gift does not require a registered document. Further it is the specific case of second defendant that the gift patram executed in favour of the plaintiff was handed over to her when the property was delivered to her and therefore it is not possible for the second defendant to produce the said gift patram and as such the decision reported in 2008(3) ALT 104 (DB) is not applicable.
It is further contended by the learned counsel for the second defendant that the mother of second defendant i.e., Lakshmi Kanthamma has executed a registered Will deed on 4.5.2012 bequeathing her properties to the second defendant with absolute rights which is denied by the plaintiff stating that as Lakshmi Kantamma is not the absolute owner but the plaintiff did not deny the signatures of her mother on the said Will, the original Will is marked as Ex.B.15. Since Ex.B.15 is a compulsorily attestable document the second defendant has examined
D.W.3 who is the attestor to comply Sec.68 of Indian Evidence Act, who in his cross examination has deposed that at the time of execution of
Ex.B.15 it was prepared and read over to the testatrix and she admitted the same as correct and then fair copy was prepared and she has signed on it. D.W.3 has also deposed that he drafted it on the verbal instructions of testatrix and there is no suggestion given to D.Ws 2 and 3 that the signatures of the testatrix on Exs.B.15 do not belong to her. Therefore Sec.
36 68 of the Indian Evidence Act was complied by examining D.W.3 to prove
Ex.B.15. The plaintiff has submitted in the written arguments as if the second defendant is denying Ex.B.15 but neither in the plaint nor in her chief examination she has stated that the signature on Ex.B.15 are not that of her and in view of lack of pleading the counsel for the plaintiff has no right to submit written arguments in Ex.B.15 that the same is forged and fabricated document.
It is further contended that the plaintiff has executed Ex.B.17 in favour of one Pemmasani Murali Krishna and Nutakki Sashanth in respect of plaint ’B’ schedule property on 26.3.2014. The plaintiff has issued Ex.A.21 registered notice prior to filing the suit on which a reply was issued by defendants 2 to 4 under Ex.A.22 on 9.5.2014.
It is further contended that as seen from Ex.B.17 it was executed even prior to EXs.A.21 and A.22 and even prior to filing of the suit but the plaintiff has suppressed regarding execution of Ex.B.17 in Ex.A.21 and A.22 and also in the plaint. Purposefully and as such she is not entitled for partition of plaint ‘A’ & ‘B’ schedule properties. As far as the genuineness of Ex.B.17, the cross-examination of P.W.1 shows that she does not remember the name of the person in whose favour it was executed and the agreement of sale is a possessory agreement of sale and no consideration was passed under Ex.B.17 which covers both the properties situated at Nagavarappadu and Valivarthipadu villages but as seen from Ex.B.17 it was executed only relating to plaint ‘B’ schedule property but not in respect of plaint ‘A’ schedule property or any part of it.
The admission of P.W.1 during her cross-examination that the properties situated in Valivarthipadu village covered by Ex.B.17 are in the possession of the second defendant. But Ex.B.17 is an unpossessory agreement of sale executed by plaintiff in favour of the purchasers and she received consideration amount of Rs.20,00,000-00 from the purchaser. In the 37 cross-examination of D.W.1 he deposed that the property covered by
Ex.B.17 was delivered to purchasers. The evidence of P.W.1 also shows that it is against the recitals of Ex.B.17 and none of the persons were examined by the plaintiff. Further as seen from ex.B.17 the plaintiff has to execute a registered document only after she obtained registered partition from her brother and sister within ten days, Ex.B.17 was executed in the year 2014 and now it is 2023 and no purchaser would invest huge amounts with respect to disputed property and knowingfully well the same the purchasers paying Rs.20,00,000-00 to the plaintiff towards advance consideration is unbelievable and Ex.B.17 is only a fictitious document and no suit was filed by the purchasers for the specific performance till today.
It is further contended by the learned counsel for the second defendant that the description of the plaint schedule property is incorrect.
As per the revenue records plaint ‘B’ schedule property an extent of
Ac.1.98 cents is comprised in R.S.No.174/1, an extent of Ac.1.83 cents in
R.S.No.174/3, an extent of Ac.0.69 cents in R.S.No.174/5 and an extent of Ac.1.06 ½ cents in R.S.No.174/6 making total extent of Ac.5.56 ½ cents. But the description in the plaint ‘B’ schedule property is altogether different and incorrect. The documents marked by the plaintiff i.e.,
Exs.A.3 to A.21 are registered sale deeds, out of which one is gift deed.
EXs.A.5 and 15 to 19 were not executed by the defendants 2 to 4 along with the mother of second defendant. Therefore the second defendant did not receive any consideration under Exs.A.5 and 15 to 19 and consequently he is not responsible or liable for the transactions under those documents.
It is further contended that undisputedly, during the life time of the parents of the plaintiff and defendants 1 & 2 there were no disputes among them and only after the death of their parents as the second 38 defendant did not give any portion of the property to the plaintiff and since the value of the properties is considerably increased the plaintiff created
Ex.B.17 and filed the suit with false claim. The plaintiff is not entitled for mesne profits since both the plaint ‘A’ and ‘B’ schedule properties are not income yielding properties, hence the suit of the plaintiff is not maintainable and liable to be dismissed.
13) As seen from the above arguments submitted by both the counsels and also the evidence of P.w.1 and D.Ws 1 to 4 and also EXs.A.1 to A.23 and Exs.B.1 to B.18 the first and foremost issue for consideration is whether the plaint schedule properties are in joint and constructive possession of the plaintiff and the defendants 1 & 2 and if so whether the plaintiff is entitled for partition of the suit schedule properties as prayed.
According to the plaint filed by the plaintiff she claims her share in the plaint ‘A’ & ‘B’ schedule properties as class-I legal heir as the said properties which are originally acquired by her grand father Malireddy
Ayya Reddy were subsequent to his death by virtue of the compromise decree in O.S.No.15/1949 were divided among his sons i.e,. his adopted son namely Malireddy Ramagopala Reddy and his natural son namely
Malireddy Vijaya Rama Raghava Reddy when a suit was filed by
Ramagopala Reddy along with his minor son Deva Kumara Reddy against
Malireddy Vijaya Rama Raghava Reddy for partition and as per the contention of the plaintiff the said suit was ended in compromise between
Ramagopala Reddy, Devakumara Reddy (minor) and Malireddy Vijaya
Rama Raghava Reddy and in the said compromise the properties mentioned in ’A’ schedule of the said suit were given to the share of
Ramgopala Reddy whereas the properties mentioned in ‘B’ schedule property in the suit in O.S.No.15/1949 were given to the share of
Malireddy Vijaya Rama Raghava Reddy who is no other than the father of the plaintiff and the defendants 1 & 2. The ‘B’ schedule property in 39
O.S.No.15/1949 which fell to the share of Malireddy Vijaya Rama Raghava
Reddy is described as plaint A & B schedule properties in the present suit and the cause of action for filing the suit by the plaintiff is that till the death of their father i.e., Malireddy Vijaya Rama Raghava Reddy the plaint schedule properties are being enjoyed jointly by the plaintiff and defendants 1 & 2 along with their mother Lakshmi Kanthamma and their father Malireddy Vijaya Rama Raghava Reddy died on 25.10.1998 intestate. Thereafter the plaintiff has demanded the defendants 1 & 2 and her mother late Lakshmi Kantamma for partition of the plaint ‘A’ & ‘B’ schedule properties and allotment of 1/3rd share to her but the same was postponed by them and her mother late Lakshmi Kanthamma also died intestate on 23.6.2012 leaving behind the plaintiff, defendants 1 & 2 and in view of the death of Malireddy Vijaya Rama Raghava Reddy the plaintiff and defendants 1 & 2 being the class-I legal heirs of the said Malireddy
Vijaya Rama Raghava Reddy who died intestate on 25.10.1998 are entitled for equal shares but as the defendants 1 & 2 did not come forward for partition and as the defendant No.2 along with their mother Lakshmi
Kantamma and also his children i.e., Defendants No.3 and 4 has executed registered sale deeds in favour of defendants No.5 to 23 and also the defendants No.2 and 4 along with Lakshmi Kantamma has executed a registered gift deed in favour of the third defendant, ignoring the rights of the plaintiff as class-I legal heir the same necessitated the plaintiff to file the suit after issuing legal notice to defendants 1 and 2 as they did not come forward with partition and defendant No.2 has made alienations along with Lakshmi Kantamma and his son & daughter against the interest of the plaintiff and detriment to the rights of the plaintiff and as such the plaintiff being class-I legal heir of Malireddy Vijaya Rama
Raghava Reddy who died intestate on 25.10.1998 and his wife Lakshmi
Kantamma who also died intestate on 23.6.2012 the plaintiff is entitled for 40 her share and the said alienations made in favour of defendants No.5 to 23 and defendant No.3 are not valid and binding. It is nowhere pleaded in the plaint that the plaintiff is claiming her right as coparcener as the properties under plaint ‘A’ & ‘B’ schedule properties herein are the ancestral properties of her father Malireddy Vijaya Rama Raghava Reddy.
14) As seen from the cross-examination of P.W.1, no doubt that she has admitted at page No.3 para 1 of her cross-examination that she has filed the suit for partition as it is ancestral property and she has got right in it and she further stated to the suggestion made by the defendant denying that in her chief-examination affidavit also she has not mentioned that the plaint schedule properties are ancestral properties and she has a share in it. At this juncture as seen from the chief affidavit of P.W.1, she has no where claimed that the plaint schedule properties are the ancestral properties of her father. It is pertinent to note that a bald suggestion made to P.W.1 with regard to the nature of property of the plaint schedule properties as ancestral properties and the answer elicited from the mouth of P.W.1 during cross-examination, cannot be taken as blanket admission to consider the claim of the plaintiff, as claiming ancestral property without there being that a pleading in the plaint by holding that as the plaint schedule properties are the ancestral properties and since there is no pleading to that effect the suit of the plaintiff is liable to be dismissed and also in view of the rulings of the Hon’ble Supreme Court that without pleading her admission in the cross-examination amounts to filing a suit for partition for ancestral property.
15) It is to be understood that the plaintiff has specifically pleaded for partition as class-I legal heir of her deceased father Malireddy Vijaya
Rama Raghava Reddy who died intestate in the year 1998 by claiming joint and constructive possession in plaint ‘B’ schedule properties and also by contending that the plaint ‘A’ schedule properties were already 41 sold away by the second defendant and his children along with her mother
Lakshmi Kantamma who do not have any absolute and exclusive right to sell away the plaint ‘A’ schedule properties which is detrimental to the rights of the plaintiff. The pleadings of the plaintiff are only to the effect that she is claiming her right in the plaint schedule properties as class-I legal heir of the deceased Malireddy Vijaya Rama Raghava Reddy along with defendants 1 & 2 and she has no where pleaded that she is claiming her right either as a coparcener or to ancestral property, which is evident from the documents filed by the plaintiff as well as the defendant No.2 himself. It is no where mentioned in the documents filed by either of the parties that the properties acquired by Malireddy Vijaya Rama Raghava
Reddy in the compromise decree are the ancestral properties of either their father or his great grand father. Even according to the recitals of
Ex.A.23 which is the compromise decree in O.S.No.15/1949, it is no where mentioned that the parties have entered into compromise by mentioning the plaint ‘A’ and ‘B’ schedule properties therein as the ancestral properties of the deceased Ayyareddy who is their father, as seen from the compromise decree in O.S.No.15/1949. Further there is no pleading even in Ex.A.21 notice issued by the plaintiff to the defendants 1 to 23 that she is claiming her right in the said properties as they are ancestral properties. Further it is not the case of the second defendant in his pleadings that the properties under plaint ‘A’ & ‘B’ schedule properties in this suit are the ancestral properties of his father and as seen from the para No.4 of the written statement filed by second defendant he clearly pleaded that plaint ‘B’ schedule property is the absolute property of this defendant and his son and daughter without mentioning as to how it has got that absolute property and also the nature of acquisition of plaint ‘B’ schedule property by the second defendant.
42
16) Further as seen from the compromise decree in
O.S.No.15/1949 under Ex.A.23 it is no where mentioned that the
schedule properties therein are the ancestral properties of the father of
Ramgopala Reddy and Malireddy Vijaya Rama Raghava Reddy. Even the documents filed in the defendant under EXs.A.2 to A.20 it is clearly mentioned in the recitals therein regarding nature of property stating that “all the properties under Ex.A.2 to A.20 are the joint family
properties which fell to the share of Malireddy Vijaya Rama Raghava
Reddy when himself and his brother Ramgopala reddy on 24.10.1949
in the District Court, Machilipatnam in O.S.No.15/1949 have filed a
suit for partition and compromised at the intervention of elders and
close relatives and as per the compromise decree in I.A.No.865/1949
the property under the said documents (Exs.A.2 to A.20) fell to the
share of the husband of first party i.e., Lakshmi Kantamma w/o
Malireddy Vijaya Rama Raghava Reddy and in the said share they
have absolute rights and enjoying the same without executing any
document as the said Malireddy Vijaya Rama Raghava Reddy died
intestate on 25.10.1998 and as in the schedule property and some
other property as per Hindu Succession Act, the vendors have joint
rights and enjoying the same with absolute rights and they have
divided the said lands into plots and selling the same to the vendees
under EXs.A.2 to A.20” which recital is very much incorporated in all the documents under Exs.A.2 to A.20 including the alleged gift deed under
Ex.A.3 executed in favour of defendant No.3, which clearly discloses that the nature of property as allegedly acquired by the second defendant from his father and the nature of property as claimed by the plaintiff for partition in the suit against the defendants 1 and 2 is nothing but claiming her right in the joint family property of Malireddy Vijaya Rama
Raghava Reddy as class-I legal heir of the said Malireddy Vijaya Rama 43 Raghava Reddy subsequent to his death as he died intestate, as evident from the recitals of the documents filed by the plaintiff which are the certified copies of sale deeds and gift deed executed by late Lakshmi
Kantamma and defendants 2 to 4 in favour of the defendants No.3 and 5 to 23. The contention of the learned counsel for the second defendant that the admission of the plaintiff that she is claiming right in the ancestral properties in this suit and by way of the said suggestion during cross-examination and the answers elicited during cross-examination cannot be considered as an admission that she is claiming right in the ancestral property, in her evidence without pleading since the very nature of documents filed by the plaintiff which are the documents executed by defendants 2 to 4 along with his mother in favour of third parties claiming them as joint family properties which fell to the share of the father of defendant No.2 in the compromise decree in O.S.No.15/1949, cannot be acceptable and on that count the decision as cited by the learned counsel that (2011(2) ALT 44 (SC) the parties must plead the material fact and adduce evidence to substantiate the same cannot be applied to the facts and circumstances of this case. Since in this case the plaintiff did not plead that the properties are the ancestral properties and she is claiming right as lenial descendent of the deceased Malireddy Vijaya Rama Raghava
Reddy either as coparcener or as lenial descendent of Malireddy Vijaya
Rama Raghava Reddy by the answers elicited by way of a bald suggestion from her cross-examination. Even though it is contended by the learned counsel for defendant No.2 that the ruling as cited by the plaintiff’s counsel as reported in 2021(4) ALT page 383 (DB)(TS), is not applicable, the same is not tenable since the plaintiff has not claimed her right as a coparcener as per Sec. 6 of the Amended Hindu Succession
Act, as she is claiming her right as class-I legal heir of her father i.e.,
Malireddy Vijaya Rama Raghava Reddy as per the Hindu Succession Act, 44 1956, who died intestate. Even though her marriage was performed prior to 1985 is correct, but since she is claiming her right not as coparcener but as class-I legal heir of Malireddy Vijaya Rama Raghava Reddy who died intestate, the contention of the learned counsel for the second defendant cannot be acceptable.
17) Further as contended by the learned counsel for the plaintiff as per the ruling reported in 2012(2) ALT 303 wherein it is held that “under Hindu law where there is a compromise decree pointed to the fact that the suit is finally disposed off and there was nothing mark for the trial court to do in the matter and it amounts to final decree and not a preliminary decree. Hence, the compromise decree is final decree passed in O.S.No.15/1949 by the District court, Krishna at Machilipatnam against Malireddy Vijaya Rama Raghava Reddy i.e., the father of the plaintiff.
18) As seen from Ex.A.23 compromise decree also there is a clear recital in Ex.A.23 that the suit was filed in respect of the joint family properties which were not divided among the parties therein i..e,
Ramagoplala Reddy and his minor son Devakumar reddy against
Malireddy Vijaya Rama Raghava Reddy in respect of the plaint ‘A’ & ‘B’ schedule properties therein out of which the plaint ‘B’ schedule property fell to the share of Malireddy Vijaya Rama Raghava Reddy and in the compromise terms it was clearly recited that the compromise was entered into between the parties therein in respect of undivided family property into two shares which also clearly shows that the nature of property therein is not ancestral property but it is only undivided joint family property of the father of Ramagopala Reddy and Malireddy Vijaya Rama
Raghava Reddy. As per the settled law when once the property divided among the brothers in the property that fell to the share of each of them acquires the status of the individual and self acquired property and as 45 such since Malireddy Vijaya Rama Raghava Reddy died intestate, the plaintiff being the class-I legal heir of , Malireddy Vijaya Rama Raghava
Reddy is entitled for equal share along with defendants 1 & 2 as per Sec. 8 of Hindu Succession Act, 1956. Therefore the contention of the learned counsel for the second defendant that the plaintiff is claiming the property as ancestral property without there being any pleading cannot be accepted in view of the discussion made supra. On the other hand the documents filed by the plaintiff as well as the defendants No.2 clearly establish more particularly Ex.A.23 and A.2 to 20 clearly establish that the nature of plaint schedule property is the undivided joint family property of the plaintiff and the defendants 1 and 2 which was acquired and in the possession of the second defendant subsequent to the death of Malireddy
Vijaya Rama Raghava Reddy intestate being the son of Malireddy Vijaya
Rama Raghava Reddy, which was acquired by Malireddy Vijaya Rama
Raghava Reddy by the compromise decree in O.S. No.15/1949. Further it is pertinent to note that as per the settled law, that the plaintiff claims her share in the joint family property being the class-I legal heir of Malireddy
Vijaya Rama Raghava Reddy and in such a case the possession of one of the co-owners would amount to the possession of all the co-owners till it remains undivided as joint and deemed to be in constructive possession of all, till the parties partition their properties by way of a registered partition deed or by a court decree.
19) Further as admitted by the second defendant as D.W.2 in his cross-examination the plaint schedule property and other property belong to their paternal grand father Malireddy Ayya reddy and the plaintiff herein and defendants 1 & 2 are the daughter and son of Malireddy
Ayyareddy and defendants 3 & 4 are the grand children of Malireddy
Ayyareddy and he also admitted the above compromise decree in
O.S.No.15/1949 and the plaint schedule property falling to the share of
46 his father Malireddy Vijaya Rama Raghava Reddy in the said compromise decree. During further cross-examination he admitted that his father enjoyed ‘B’ schedule properties in O.S.No.15/1949 with absolute rights and he died intestate on 25.10.1998, except the plaintiff, himself, his mother and first defendant there are no other heirs to his father. He further admitted that his father has sold away some extent of the property which is in his absolute possession and enjoyment and his mother had no properties of her own except the property owned by his father and he does not remember whether it is recited in the sale deeds under Exs.A.3 to
A.20 that the properties sold are the properties inherited from his father and in joint possession of the executants and the plaintiff and D.1 are also the heirs of his deceased father which clearly shows that even by the admissions made by D.W.2 the property is the joint family property of the family of plaintiff and defendants 1 & 2 which was acquired from their father Malireddy Vijaya Rama Raghava Reddy who died intestate on 25.10.1998. Therefore it cannot be doubted that the plaint schedule property is not the joint family property of the plaintiff and defendants 1 & 2 in view of the documents filed under Exs.A.3 to A.20 and A.23 by the plaintiff which is the documentary evidence supporting the case of the plaintiff and also in view of the admissions made by D.W.2 with regard to the nature and acquisition of property and jointness of the property from
Malireddy Vijaya Rama Raghava Reddy to the plaintiff and defendants 1 and 2 as he died intestate.
20) Now coming to the plea raised by the second defendant that the plaintiff and D.1 were already given their respective shares at the time of their respective marriages by way of pasupukumkuma gift and the plaintiff was given Ac.2.98 cents towards pasupukumkuma gift at the time of her marriage and as such she is not entitled for any share and the said
Ac.2.98 cents was already sold out by the father of the plaintiff to give her 47 the amount from out of the sale proceeds and the said sale consideration was also given to the plaintiff by selling away the said property and as such the plaintiff is not entitled for any share is concerned, it is the contention of the learned counsel for the plaintiff that no such property i.e., Ac.2.98 cents as contended by the second defendant was gifted as pasupukumkuma gift to the plaintiff at the time of marriage; further the second defendant even though has contended that the said property was gifted by the father of the plaintiff at the time of her marriage by way of unregistered gift deed and the said unregistered gift deed was also handed over to the plaintiff and the plaintiff has sold away the said property and appropriated the sale proceeds and purchased the property under Ex.B.16 with the sale proceeds is false, in fact, the witness who is examined as
D.W.4 who is the husband of the alleged purchaser of Ac.1.50 cents out of
Ac.2.98 cents in R.S.No.81/1 which was allegedly given to the plaintiff and sold by the father of the plaintiff and defendants 1 & 2 to his wife
M.Venkata Pitchamma jointly under a registered sale deed dated 14.11.1994 vide document No.4494/1994 and his wife died in the year 2018 (and the registration extract of said sale deed is marked as Ex.P.14) during the cross-examination of D.W.4, he categorically admitted that the second defendant is his junior brother by courtesy and that he filed document to prove that his wife is no more and he knows who filed the suit and the relief, the suit is filed by one Sujatha which is absolutely contrary to his version in his chief affidavit and it shows that he does not know who filed the suit, the names of the parties and what purpose the suit is filed. He further admitted during cross-examination that he does not know the survey number of the land he mentioned in his chief affidavit and D.1 is not the executant of Ex.B.14 and they did not obtain any signature from the plaintiff in Ex.B.14 nor obtained any document from the plaintiff to show that she was present at the time of execution of 48 Ex.B.14 sale deed and the plaintiff did not sign as a signatory in Exx.B.14 and B.18 and he denied the suggestion that no such sale consideration under EXs.B.14 and B.18 was given to the plaintiff, which shows that he deposed false evidence to strengthen the case of the second defendant.
The admissions of D.W.4 clearly show that the contention of the second defendant that the father of the plaintiff himself and D.1 & D.2, has sold away Ac.1.50 cents of Ac.2.98 cents of the land given as pasupukumkuma gift to the plaintiff and the sale proceeds were appropriated to the plaintiff for purchase of another property is false. If really the contention of the defendant as pleaded by him in his written statement that the said
Ac.2.98 cents was gifted as pasupukumkuma to the plaintiff by way of unregistered gift deed is true and the possession was also delivered to her is true, his father and defendants 1 & 2 could not sell the property in favour of third parties without the consent and signature of the plaintiff in the said registered sale deed under Ex.B.14. Further as contended by the learned defendant counsel and as elicited in the cross-examination that the plaintiff purchased the property under Ex.B.18 from the sale proceeds of Ex.B.14 is concerned, at this stage as seen from Ex.B.18. it is an agreement of sale dated 26.3.2014 allegedly executed by the plaintiff in favour of one Pemmasani Murali Krishna and Nutakki Sashanth but it is not a registered sale deed in favour of the plaintiff to prove that the plaintiff has purchased some property from out of the sale proceeds of
Ex.B.14. The learned defendant counsel has consistently raised this plea in his arguments with regard to Ex.B.18 which is no way concerned with the sale proceeds under Ex.B.14. Even Ex.B.16 is concerned as the said document under which the plaintiff has allegedly purchased some property from the sale proceeds of Ex.B.14, as seen from Ex.B.16 it is a registered extract of document dated 18.6.1994 executed in favour of the plaintiff by one Kollipara Siva Mallareddy and his undivided son Srinviasa 49 reddy minor guardian Siva Mallareddy in respect of a plot along with fell to his share and in Ex.B.16 there is no recital that the plaintiff has purchased the said property from out of the sale proceeds of Ex.B.14.
Further Ex.B.16 document is dated 18.6.1994 which is much prior to execution of Ex.B.14 which was executed on 14.11.1994. Therefore the contention of the learned counsel for the second defendant that the plaintiff has purchased the property under Ex.B.16 from the sale proceeds of Ex.B.14 is incorrect. Probably the learned counsel quoted
Ex.B.16 instead of Ex.B.18. But there is no force in the said contention since Ex.B.16 was executed in favour of the plaintiff by some other party which is much prior to Ex.B.14.
21) Further even though it is contended that as elicited from the mouth of D.W.1 that there is a caste custom in Reddy community to announce about pasupukumkuma gift at the time of marriage in Reddy Community, there is no proof with regard to announcing of such pasupukumkuma gift at the time of marriage of plaintiff since D.W.1 has stated that it may be true that such gift was announced at the time of marriage of the plaintiff and she is not certain about the same. Further his contention of announcing of gift was materialized subsequently by handing over the documents and also by delivering the possession of the said land Ac.2.98 cents as pasupukumkuma gift is not supported by any documentary evidence. Further the second defendant filed cist receipts in respect of the said Ac.2.98 cents to show that the plaintiff has been in possession and enjoyment of the said Ac.2.98 cents which are EXs.B.5, B,7, B10 & B.13 and according to the contention of the second defendant the said Ac.2.98 cents is situated in S.No.81/1, 2 and 3 but as seen from Exs.B.5, B.7,
B.10 and B.13 which are in the form of cist receipts dated 1.3.1986, 25.5.1987, 23.12.1988, 15.3.1992 in the name of the plaintiff Reddam
Padmavathi, Exs.B.5, B.7 and B.10 show the Survey number as 230 50 whereas Ex.B.13 shows the survey Nos. 217, 230 and 229 in respect of which the alleged cist was paid clearly shows that Exs.B.5, B.7, B.10 and
B.13 are no way concerned with the said Ac.2.98 cents which is situated in S.No.81/1, 2 and 3. There is no evidence or pleading by the second defendant to show that the S.No.81/1, 2 and 3 and the S.Nos. 217, 230 and 229 as shown in Exs.B.5, B.7, B.10 and B.13 are one and the same.
Further it is admitted by D.W.1 during cross-examination that tax can be paid by any person apart from the owner. Therefore the documents which are the alleged cist receipts under Exs.B.5, B.7, B.10 and B.13 cannot be considered as reliable documents pertaining to the property i.e., Ac.2.98 cents situated in S.No.81/1, 2 and 3. Even the other documents i.e.,
Exs.B.6, B.8, B.9, 11 and 12 cannot be considered as that of relating to the property allegedly given to the plaintiff at the time of her marriage as pasupukumkuma i.e., Ac.2.98 cents. The admissions of D.W.2 during cross-examination clearly show that there is no documentary proof to show that the plaintiff got sold an extent of Ac.1.50 cents out of the
Ac.2.98 cents through her father and the entire sale consideration was given to her.
22) Further as seen from Ex.A.23 which is the compromise decree between Ramgopala reddy and Malireddy Vijaya Rama Raghava Reddy in
O.S.No.15/1949 term No.3 at page No.2 of the said compromise clearly
shows that the schedule property Ac.2.98 cents was given to Seshamma for her maintenance during her life time on 24.9.1946 and after her life time the said land shall be divided equally among them i.e., Ramagopala
Reddy and Vijaya Rama Raghava Reddy and each party shall have absolute rights over the said property which clearly shows that even the
Ac.2.98 cents as claimed by second defendant, Malireddy Vijaya Rama
Raghava Reddy is not the absolute owner of the entire Ac.2.98 cents but
Ramagopala Reddy has half share in the said land and it also clearly 51 establishes that the contention of the second defendant that the said property was announced as pasupukumkuma gift and given away to the plaintiff during her marriage time and subsequently was sold by her father and defendants 1 & 2 in order to give her the amount of share from out of sale proceeds of the said property, is false and blatant lie. Therefore it can be safely held that in view of the above documents as discussed supra and also the admissions of D.W.2 in his cross-examination that no such property i.e., an extent of Ac.2.98 cents was given as gift towards pasupukumkuma at the time of marriage of the plaintiff by her father and the contention that the same was sold out and the sale proceeds were appropriated to her to purchase some property, is false, baseless and not supported by any documentary evidence. Hence, the plaintiff was not given any such share at the time of her marriage towards pasupukumkuma in respect of Ac.2.98 cents and the cist receipts and other under EXs.B.5 to B.13 are not reliable documents and the said material aspect is not proved by the second defendant.
23) Even though it is contended by the learned counsel for the second defendant that as the plaintiff was given her share towards pasupukumkuma gift at the time of her marriage an extent of Ac.2.98 cents, the same is not proved by the second defendnat.
24) Now coming to the ‘Will deed’ allegedly executed by Lakshmi
Kanthamma i.e., the mother of the plaintiff and defendants 1 & 2 which is marked as Ex.B.15, even though the said ‘Will deed’ is a registered document and the plaintiff did not deny the signatures of her mother in the said ‘Will deed’ as contended by the learned counsel for the second defendant, it is pertinent to note that Lakshmi Kantamma has no absolute right to execute a ‘Will deed’ in respect of the entire suit schedule properties as she is not alone the absolute owner of the said property in view of the death of her husband as intestate. Had she been alive, though 52 she is entitled for equal share as class-I legal heir of her husband, she is precluded from executing the said Will deed in favour of second defendant in respect of the entire properties of her husband as she has done the same by causing detriment and to defeat the rights of the plaintiff.
25) As seen from Ex.B.15 even though it is a registered document, surprisingly Lakshmi Kantamma though the recitals of Ex.B.15 executed by Lakshmi Kantamma show that even prior to the death of her husband
Malireddy Vijaya Rama Raghava Reddy her three children and her husband have orally partitioned the joint family properties and the share fell to her two daughters was sold away to others and their marriages were performed and cash and jewelery and other lanchanams were given towards their share. Further she did not mention about what is the extent and what is the property given to the share of her two daughters which was sold and given to their share. Further Ex.B.15 is silent about the said
Ac.2.98 cents allegedly given to the plaintiff towards pasupukumkuma gift at the time of her marriage. If really Malireddy Vijaya Rama Raghava
Reddy had given any such pasupukumkuma gift at the time of her marriage to the plaintiff in an extent of Ac.2.98 cents, she could have definitely recited about the same in Ex.B.15. But there is no whisper about the same in Ex.B.15. Further as seen from Ex.B.15 she simply mentioned that after her life time whatever movable and immovable properties she is having the same have to be taken possession by her son
Venkateswara Ayya Reddy (D.2) and enjoy with absolute rights and her daughters do not have any right in the said properties. Except stating as above she did not mention either the list or the schedule of the properties in which she has got absolute rights and what are her movable and immovable properties she bequeathed under the ‘Will’ by mentioning the same in Ex.B.15 by specifying the schedule. Even though the second 53 defendant has examined D.W.3, to prove Ex.B.15, during cross- examination he admitted that D.W.2 did not give any document to the scribe at the time of execution of the said ‘Will’. Further Lakshmi
Kanthamma has stated that the lands were situated near Gudivada side in Lingavaram village and he does not know the exact extent of the land and sites and Lakshmi Kantamma told that the property covered by the said Will is the ancestral property, D.W.2 and Lakshmi Kantamma both gave instructions to the scribe at the time of preparation of Ex.B.15 Will deed, clearly shows that there is no document to support what are the properties mentioned in Ex.B.15 Will deed and mere examining of the attestor of the alleged Will deed does not amount to proof of execution of the contents of the said Will as contemplated U/s.68 of the Indian
Evidence Act and as contended by the learned 2nd defendant counsel even though the second defendant has produced the original Will, it does not amount to proof of the Will since Lakshmi Kantamma has no absolute right to execute the Will deed by bequeathing all the properties to D.W.2 as she has not become the absolute owner of the entire plaint schedule property after the death of Malireddy Vijaya Rama Raghava Reddy being his wife when the other class-I legal heirs i.e., the plaintiff, D.1 and D.2 are alive and she did not even mention the properties in schedule and also the documents basing on which she became absolute owner and executed the said Will deed in respect of the plaint schedule properties. Further
D.W.2 has admitted in his cross-examination that Lakshmi Kantamma is not the absolute owner and she did not get any absolute rights to execute
Ex.B.15 Will deed and as such even though the plaintiff has not denied the signature of Lakshmi Kantamma on Ex.B.15 it does not amount to proof of execution of Ex.B.15 besides that the said Will deed is not valid since Lakshmi Kantamma can’t convey the right under the properties over which she does not have any absolute rights. Therefore the said Will deed 54 is not a valid document, for the second defendant to claim that he has become absolute owner of the plaint schedule property under Ex.B.15 subsequent to the death of his mother Lakshmi Kanthamma. Therefore the evidence of the plaintiff and Exs.A.1 to A.23 and the admissions made by D.W.2 and other witnesses D.Ws 3 and 4 during cross-examination clearly establish that the plaint schedule properties are the joint family properties of the plaintiff and defendants 1 & 2 and they are in joint and constructive possession of the said property and there is no proof filed by the second defendant that the second defendant is the absolute owner of the plaint schedule properties and they are in his exclusive and joint possession of defendants 2 to 4 in view of the death of his father and execution of Ex.B.15 Will deed in his favour and as such the plaintiff is able to establish that the plaint schedule properties are the joint family properties of the plaintiff and defendants 1 & 2 and she became a sharer as class-I legal heir as per the Hindu Succession Act subsequent to the death of her father Malireddy Vijaya Rama Raghava Reddy who died intestate along with defendants 1 and 2 and as per Sec. 8 of Hindu
Succession Act the class-I legal heirs are entitled to equal shares to the property of the propositus who died intestate without executing any document in respect of the joint family properties and the possession of the plaintiff is deemed to be joint and constructive along with the defendants 1 and 2 in respect of the plaint schedule properties and therefore the contentions raised by the learned counsel for the second defendant and the rulings as cited by him are not applicable to the facts and circumstances of this case and the plaintiff is entitled for the relief of partition of the suit schedule properties. Accordingly these issues are answered in favour of the plaintiff and against the defendants.
55
26) ISSUE NOS. 3 TO 6:
Since as decided by me in issues 1, 2 and 7 to 9 the plaint schedule properties are the joint family properties of the plaintiff and defendants 1 & 2 and their possession is joint and constructive possession, even though the defendants No. 20, 22 and 21 have filed their written statements in respect of purchase of item Nos. 16, 18 and 17 respectively in the plaint ‘A’ schedule property from late Lakshmi Kantamma and defendants 2 to 4, as Lakshmi Kantamma did not acquire any absolute rights over the plaint schedule property after the death of her husband Malireddy Vijaya Rama
Raghava Reddy and as the second defendant alone did not become the absolute owner of the plaint schedule property which is clearly evident from the recitals in Exs.A.2 to A.20, the defendants 2 to 4 along with
Lakshmi Kantamma have no absolute rights to sell away the property under Exs.A.2 and A.4 to A.20 in favour of the defendants 5 to 23 and as such the alienations made by Lakshmi Kantamma and defendants 2 to 4 in favour of defendants 5 to 23 and the gift deed allegedly executed by
Lakshmi Kantamma and defendants 2 and 4 in favour of defendant No.3 which is not proved by examining any witnesses pertaining to the gift deed and since defendants No.20, 21 and 22 did not come into witness box to prove about their case or to prove that they are bonafide purchasers in respect of Items 16 to 18, the alleged sale deeds executed in their favour by Lakshmi Kantamma and defendants 2 to 4 and also the alleged gift deed executed by Lakshmi Kantamma, defendants 2 and 4 in favour of the defendant No.3 are not valid and binding on the plaintiff as the defendant No.2 has failed to prove his absolute rights and the other defendants have remained exparte after receiving the summons from this court. Therefore the plaintiff is able to establish that the sale deeds and the gift deed in favour of D.3, are not valid and binding on the plaintiff 56 and the defendants 3 and 5 to 23 did not acquire any rights in respect of the property sold to them under the alleged documents under Exs.A.3 to
A.20 and no rights are accrued to them in view of the fact that their vendors have no absolute rights or title over the plaint schedule properties to sell away the said items in their favour.
27) Further as far as the contention raised by the learned counsel for second defendant with respect to that item Nos. 1 to 19 of the plaint schedule property, the total of entire extent amounts to only
Ac.0.80 cents and the plaintiff did not claim or did not whisper about the remaining Ac.0.59 cents in her plaint and as she failed to include the entire property in a suit for partition she is not entitled for a decree as she could not file the suit for the entire plaint ‘A’ schedule property and the said description of the plaint ‘A’ schedule property is incorrect, and the second defendant is not in possession of the remaining Ac.0.59 cents of land out of plaint ‘A’ schedule property is concerned, it is pertinent to note that there is no pleading by the second defendant in his written statement and he cannot claim at this stage by way of arguments by contending that the total extent of plaint ‘A’ schedule property in item Nos.1 to 19 is only
Ac.0.80 cents and there is no whisper about the remaining Ac.0.59 cents as to in whose possession the said property was lying and the argument advanced cannot be accepted at this stage claiming that the suit is not maintainable as she did not include all the properties of Malireddy Vijaya
Rama Raghava Reddy in the suit for partition and a suit for partition in respect of some portion of the joint properties of the deceased is not maintainable is concerned, there is no whisper even in the reply notice given under Ex.A.22 by the D.2 to D.4 and there is no pleading to that effect in the written statement filed by D.2 to D.4 separately and as such this plea raised at the time of arguments without there being any pleading 57 cannot be accepted. Therefore these issues have to be answered accordingly and that there is no proof that the defendants No. 20, 21 and 22 have become absolute owners and they are bonafide purchasers and that late Lakshmi Kantamma along with defendants 2 to 4 has no right to execute Exs.A.3 to A.20 in favour of defendants 5 to23 and Lakshmi
Kantamma along with the defendants 2 and 4 has no right to execute
Ex.A.3 in favour of defendant No.3 in respect of item No.3 of the plaint ‘A’ schedule property and as such the said documents are not valid and binding on the plaintiff. Hence, these issues are answered in favour of the plaintiff and as against the defendants.
28) ISSUE NO.10:-
This issue relates to the entitlement of the plaintiff for mesne profits. In view of my answer in all the above issues the plaintiff is certainly entitled for mesne profits being the class-I legal heir of the deceased Malireddy Vijaya Rama Raghava Reddy and she is entitled for partition of the suit schedule property. Hence, this issue is answered accordingly in favour of the plaintiff.
29) ISSUE NO.11:-
This issue relates to whether the suit is valued properly in respect of the court fee. The contention of the learned counsel for the plaintiff is that since the plaint ‘A’ schedule property is sold away to third parties and as it is not in the possession of the defendants 2 to 4. He paid court fee
U/s.34(1) of A.P.C.F and S.V.Act as joint possession cannot be claimed in respect of said property in view of the sale transactions allegedly executed by Lakshmi Kantamma and defendants 2 to 4 which is rightly contended by the learned plaintiff counsel and the contention of the learned counsel for the defendant that the court fee paid by the plaintiff U/s.34(1) of APCF 58 and S.V.Act in respect of plaint ‘A’ schedule property is incorrect is not acceptable. Further as contended by the learned counsel for the plaintiff , the plaintiff has rightly paid the court fee in respect of the plaint ‘B’ schedule property as she is claiming her rights of joint and constructive possession in respect of the said property and rightly paid the court fee
U/s.34(1) of APCF and SV Act and as such the court fee paid by the plaintiff is on proper lines and hence this issue is answered accordingly in favour of the plaintiff and against the defendants.
30) ISSUE NO.12:-
In view of the findings and answers in issue Nos. 1 to 11, since the plaint A & B schedule properties fell to the share of the father i.e.,
Malireddy Vijaya Rama Raghava Reddy i.e., the father of the plaintiff and defendants 1 & 2 and the husband of late Lakshmi Kantamma by virtue of the compromise decree in O.S.No.15/1949 and since subsequently the said Malireddy Vijaya Rama Raghava Reddy died intestate on 25.10.1998 leaving behind him, his wife late Lakshmi Kantamma and the plaintiff and defendants 1 & 2 as his class-I legal heirs, the property has to be notionally partitioned among the plaintiff, defendants 1 & 2 and also late
Lakshmi Kantamma as she being the wife of late Malireddy Vijaya Rama
Raghava Reddy and whatever alienations made by the second defendant late Lakshmi Kantamma and defendants 3 and 4, the property under the alienations and the said transactions has to be deducted from the share of the second defendant. But however since late Lakshmi Kantamma has executed a Will deed in favour of the second defendant though she is not entitled to execute a Will deed in respect of the entire schedule property but her right to execute the Will deed is only to the extent of her 1/4th share under the plaint schedule properties as Malireddy Vijaya Rama
Raghava Reddy died intestate. Therefore the entire plaint ‘A’& ‘B’ schedule 59 properties are to be notionally divided into four equal shares among the plaintiff, defendants 1 & 2 and late Lakshmi Kantamma as the succession was opened after the death of Malireddy Vijaya Rama Raghava Reddy, who died intestate and whatever share late Lakshmi Kantamma has got i.e., her 1/4th share has to be counted to the share of second defendant as she has executed a Will deed under Ex.B.15 under the assumption that she is the absolute owner of the entire plaint schedule properties subsequent to the death of her deceased husband late Malireddy Vijaya Rama Raghava
Reddy. Therefore according to the notional partition the plaintiff, defendants 1 & 2 and late Lakshmi Kantamma are entitled to 1/4th share each from each and every item of plaint A & B schedule properties herein and accordingly the share of late Lakshmi Kantamma has to be considered as bequeathed under the Will deed under Ex.B.15 in favour of the second defendant in which case he is entitled to his share as well as the share of his mother which comes to 1/4th (his share) + 1/4th (share of his mother late Lakshmi Kantamma) as he is entitled under Ex.B.15, since Ex.B.15 is proved by the defendant No.2, as the plaintiff did snot deny the signatures of her mother on Ex.B.15. Therefore the suit has to be preliminarily decreed by also dividing the entire plaint ‘A’ & ‘B’ schedule properties into four equal shares by way of notional partition and the plaintiff and the defendants 1 & 2 are entitled to 1//4th share each and second defendant is entitled the 1/4th share of late Lakshmi Kantamma also as per Ex.B.15, and under notional partition.
31) In the result, the suit is partly decreed, with costs, by passing a preliminary decree in favour of the plaintiff and by way of notional partition of the entire plaint ‘A’ & ‘B’ schedule properties into four equal shares and allotting 1/4th share to the plaintiff in each and every item of the plaint ‘A’ & ‘B’ schedule properties and the division of properties shall 60 be done at a future date by the advocate commissioner to be appointed in future on the application of the parties. As far as the relief of mesne profits is concerned the plaintiff can file a separate petition in respect of the said mesne profits. What ever alienations made by the second defendant in respect of the plaint ‘A’ schedule properties shall be deducted from his share, to that extent.
Dictated to the Grade-I Stenographer of this Court, transcribed by
her, corrected and pronounced by me in open Court, on this the 18th day of April, 2023.
XI ADDL. DISTRICT JUDGE,
GUDIVADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFFS DEFENDANTS
P.W.1: Reddam Padmavathi @ Padmaja D.W.1: Yeruva Jagadeeswari D.W.2: Malireddy Venkateswara Ayya Reddy D.W.3: Venna Srinivasa Reddy D.W.4: Malireddy Narasa Reddy
DOCUMENTS MARKED ON BEHALF OF PLAINTIFF
Ex.A.1: Death certificate of Lakshmi Kantamma dated 23.6.2012 Ex.A.2: Registration extract of Regd.sale deed dated 31.5.2008 Ex.A.3: Regd.possessory agreement-cum-GPA dated 30.7.2008 Ex.A.4: Registration extract of Regd.sale deed dated 11.8.2011 Ex.A.5: Registration extract of Regd.sale deed dated 10.4.2008 doc.No.1623/2008 Ex.A.6: Registration extract of Regd.sale deed dated 10.4.2008 doc.No.1624/2008 Ex.A.7: Registration extract of Regd.sale deed dated 10.4.2008 doc.No.1625/2008 Ex.A.8: Registration extract of registered sale deed dated 31.5.2008 Ex.A.9: Registration extract of registered possessory agreement-cum-GPA
dated 31.5.2008
Ex.A.10: Registration extract of registered sale deed dated 29.7.2008, doc.No.3697/2008 Ex.A.11: Registration extract of registered sale deed dated 29.7.2008, doc.No.3698/2008 Ex.A.12: Registration extract of registered sale deed dated 29.7.2008, doc.No.3700/2008 Ex.A.13: Registration extract of registered sale deed dated 30.7.2008, doc.No.3745/2008 Ex.A.14: Registration extract of registered sale deed dated 11.8.2011 Ex.A.15: Registration extract of registered sale deed dated 21.8.2008 Ex.A.16: Registration extract of registered sale deed dated 19.2.2010 61 Ex.A.17: Registration extract of registered sale deed dated 20.4.2010 Ex.A.18: Registration extract of registered sale deed dated 27.7.2010 Ex.A.19: Registration extract of registered sale deed dated 30.7.2008 Ex.A.20: Registration extract of registered sale deed dated 29.7.2008 Ex.A.21: O/c of Regd.notice dated 9.4.2014 Ex.A.22: Reply notice dated 9.5.2014 Ex.A.23: CC of compromise decree inO.S.No.15/1949 dated 24.10.1949 of Hon’ble District Judge, Krishna, Machilipatnam.b g
DOCUMENTS MARKED ON BEHALF OF DEFENDANTS: Ex.B.1: Cist receipt dated 22.7.2014 bearing No. 8554027 Ex.B.2: Cist receipt dated 22.7.2013 bearing No.8346411 Ex.B.3: Cist receipt dated 22.7.2013 bearing No. 8346412 Ex.B.4: Cist receipt dated 25.2.2017 bearing No.0337216 Ex.B.5: Land revenue receipt dated 1.3.1986 for F.1395 in respect of Ac.2.98 cents of land Ex.B.6: Land drainage fee receipt dated 1.3.1986 for F.1395 in respect of Ac.2.98 cents of land Ex.B.7: Land revenue receipt dated 25.7.1987 Ex.B.8: Drainage cess receipt dated 25.7.1987 for Faslies 1395, 1397 in respect of Ac.2.98 cents of land Ex.B.9: Drainage Maintenance fund receipt dated 25.7.1987 for faslie 1396 in respect of Ac.2.98 cents of land Ex.B.10: Land revenue receipt dated 23.12.1988 for faslies 1395 to 1398 in respect of Ac.2.98 cents of land Ex.B.11: : Drainage cess dated 23.12.1988 for faslies 1395 to 1398 in respect of Ac.2.98 cents of land Ex.B.12: Drainage cess receipt dated 15.3.1991 for faslies 1400, 1401 in respect of Ac.2.98 cents of land Ex.B.13: Land revenue receipt dated 15.3.1992 for faslie 1401 in respect of Ac.2.98 cents of land Ex.B.14: Registration extract of Regd.sale deed dated 14.11.1994 bearing Doc.No.4494 Ex.B.15: Regd. Will dated 4.5.2012 bearing Doc.No.44 in book No.3 of SRO, Koritepadu Ex.B.16: Registration extract of Regd.sale deed dated 18.6.1994 bearing Doc.no.461 Ex.B.17: Registration extract of registered possessory agreement of sale
dated 26.3.2014
Ex.B.18: Registration extract of Regd.sale deed dated 29.8.1997
XI ADDL. DISTRICT JUDGE,
GUDIVADA.