O.S.No.117/20161C.J (SD) Court
Dt: 01.05.2026 Avanigadda
APKR0A0002562016
IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION), AVANIGADDA.
Present: Smt. K. ARUNA
Civil Judge (Senior Division), Avanigadda.
Friday, this the 1st day of May, 2026
O.S.No.117/2016
Between:
1. Yalavarthi Arjuna Rao (died)
2. Yalavarthi Ramarao, S/o.Seshaiah, aged about 65 years, Properties, Resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
3. Yalavarthi Pulendra Rao, S/o.Nancharaiah, aged about 55 years, Cultivation, Resident of V.Kathapalem Village, Koduru Mandal, Krishna District.
4. Yalavarthi Naga Malleswara Rao, S/o.Nancharaiah, aged about 53 years, Cultivation, Resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
5. Badarla Jhansi Lakshmi, W/o.Ammaiah Tatha, aged about 58 years, Properties, Resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
6. Yalavarthi Seshagiri Rao, S/o.Nancharaiah, aged about 50 years, Cultivation, Resident of Badevaripalem Village, H/o.Pittalanka, Koduru Mandal, Krishna District.
7. Yalavarthi Satyanarayanamma, W/o.late Arjuna Rao, aged about 75 years, resident of V.Kothapalem Village of Koduru Mandal, Krishna District.
8. Repalle Vijaya Lakshmi, W/o.Jyothibasu, aged about 55 years, resident of Nagayalanka Village and Mandal, Krishna District.
9. Yalavarthi Radha Krishna, S/o.Arjuna Rao, aged about 48 years, resident of V.Kothapalem Village of Koduru Mandal, Krishna District. (Plaintiffs 7 to 9 are added as LRs of the deceased 1st plaintiff as per orders in I.A.No.311/2026 dated 07.04.2026)
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…. Plaintiffs. And:
1. Repalle Nageswara Rao (died).
2. Repalle Rajarao, S/o.Nageswara Rao, aged about 52 years, Cultivation, Resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
3. Repalle Venkata Narayana, S/o.Nageswara Rao, aged about 55 years, Cultivation, Resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
4. Padala Ammaji, W/o.Padala Koteswara Rao (Rice Mill), aged about 58 years, Properties, Resident of Koduru Village and Mandal, Krishna District.
5. Yalavarthi Ramadevi, W/o.Late Harinadh Dathu, aged about 55 years, Properties, Resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
6. Yalavarthi Rajarao (died)
7. Yalavarthi Uma Sundari, W/o.Late Krishna Murthy, aged about 55 years, Properties and Housewife, Resident of Jayapuram Village, Koduru Mandal, Krishna District.
8.Repalle Seshu Kumari, W/o.Bhupal, aged about 40 years, House wife, resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
9.Yalavarthi Venkata Seshu Babu Nayudu, S/o.Late Krishna Murthy, Hindu, aged about 35 years, Employee in Head Post Office, Avanigadda, Resident of Jayapuram Village, Koduru Mandal, Krishna District.
10. Yalavarthi Lakshmi, W/o.Late Saibabu, aged about 48 years, House wife, Resident of Ayyappa Swamy Temple road, Jaggaiahpet, Krishna District.
11. Yalavarthi Sandeep, S/o.Late Saibabu, aged about 25 years, Resident of Ayyappa Swamy Temple Road, Jaggaiahpet, Krishna District.
12. Madivada Ramya, W/o.Krishna Kishore, D/o.Late Saibabu, aged about 28 years, House wife, resident of Ayyappa Swamy Temple Road, Jaggaiahpet, Krishna District.
13. Takkella Veera Kumari, W/o.Srinivasa Rao, aged about 45 years, House wife, Resident of Bhagyanagaram, Padmanjali Towers, Ongole, Prakasam District.
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14. Yalavarthi Narasimha Murthy, S/o.Late Rangarao, aged about 43 years, Private employee, Resident of Sitharamapuram, Door No.07/011/239 (240), Ongole, Prakasam District.
15. Yalavarthi Satyabhama, W/o.Late Rangarao, aged about 60 years, Near Ramalayam, Modumudi Village, Avanigadda Mandal, Krishna District.
16. Yalavarthi Venkata Venugopala Swamy, S/o.Rajarao, aged about 48 years, Cultivation, resident of V.Kothapalem, Koduru Mandal, Krishna District.
17. Yalavarthi Venkata Seshaiah Nayudu, S/o.Venkata Venu Gopala Swamy, aged about 24 years, resident of V.Kothapalem, Koduru Mandal, Krishna District.
18. Yalavarthi Venkata Seshaiah Naresh, S/o.Venkata Venu Gopala Swamy, aged about 22 years, resident of V.Kothapelm Village, Koduru Mandal, Krishna District.
19. Yalavarthi Subhas Chandra Bose, S/o.late Rajarao, aged about 45 years, Properties, resident of V.Kothapalem, Koduru Mandal, Krishna District.
20. Yalavarthi Padmaja, W/o.late Atma Jayaram, aged about 40 years, Properties, resident of V.Kothapalem, Koduru Mandal, Krishna District.
21. Yalavarthi Phani Murthy, S/o.late Atma Jayaram, aged about 26 years, properties, resident of V.Kothapalem Village, Koduru Mandal, Krishna District.
22. Yalavarthi Sai Kumar, S/o.late Atma Jayaram, aged about 24 years, Properties, resident of V.Kothapalem Village, Koduru Mandal, Krishna District. (The respondents 19 to 22 are added as per orders in I.A.No.319/2024 dated 06.11.2024) … Respondents.
This suit is coming before me on 24.04.2024 for hearing before me in the presence of Sri S.Raghu Rama Prasad, Advocate for plaintiffs and of Sri B.Venkata Seshagiri Rao, Advocate for defendants 16 to 18 and defendants 2 to 5, 7 to 15, 19 to 22 were set exparte and defendants 1 and 6 died and the matter having stood over for consideration till this day, this Court made the following:
JUDGMENT
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1.This is a suit filed for partition of plaint schedule properties into eight equal shares and allot one such share to the 2nd plaintiff, one such share of the deceased 1st plaintiff is to be allotted to the plaintiffs 7 to 9 as being legal heirs of the deceased 1st plaintiff, one such share to the plaintiffs 3 to 6 as being legal heirs of deceased Nancharaiah and remaining shares to be allotted to the defendants by metes and bounds with separate possession by passing preliminary decree and grant future mesne profits, costs of the suit and such other reliefs in the interest of justice.
2.The brief averments of the plaint are as follows
(a) That the plaint schedule property to an extent of Ac.1-14 cents in
R.S.No.538/3 purchased by the deceased Yalavarthi Seshaiah under registered sale deed dated 06.03.1959. During the lifetime of deceased
Yalavarthi Seshaiah had enjoyed the said plaint schedule property with absolute rights. Further, one Rama Mani is the wife of deceased Yalavarthi
Seshaiah. During their wedlock they blessed the plaintiffs 1 and 2,
Nancharamma who is the mother of defendants 2 to 5 and wife of 1st defendant, one Nancharaiah who is the father of plaintiffs 3 to 6, one
Rangarao, who is the father of defendants 13 to 15, 6th defendant, one
Krishna Murthy who is the father of defendants 7 to 9 and one Sai Babu, who is the father of defendants 10 to 12. Further, the deceased Yalavarthi
Seshaiah died about 25 years ago, after that his wife Ramamani enjoyed the said property, then after demise of the said Ramamani, the plaint schedule property is in joint possession and enjoyment of the plaintiffs and defendants.
(b).The plaintiffs further submitted that during lifetime of Yalavarthi
Seshaiah partitioned the properties among his family seven sons and reduced into writing as partition list dated 16.03.1971, in the said partition,
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the Yalavarthi Seshaiah got the plaint schedule property to an extent of
Ac.1-14 cents, but it was mentioned as an extent of Ac.1-15 cents in partition list and also agreed his seven son to give two bags of paddy to the deceased Seshaiah and his wife towards their expenses. Accordingly, the said partition list was operated. Even after the demise of parents of the plaintiffs 1 and 2, no partition took place in respect of the plaint schedule property. On that the plaintiffs 1 and 2 are repeatedly demanding for partition of the plaint schedule property, but the defendants postponed the same and all of them are colluded and tried to alienate the plaint schedule property in order to defeat the legitimate share of the plaintiffs 1 and 2. The plaintiffs 1 and 2 got issued legal notice dated 12.07.2016 to the plaintiffs 3 to 6 and defendants 1 to 12. The plaintiffs 3, 4 and defendant 1 to 4, 6 and 15 received the notice, but the defendants 5, 8 to 10, 12 and 14 returned the same and that out of them the 6th defendant was sent reply dated 10.08.2016 with false allegation by stating that an unregistered Will dated 10.01.1987 executed by deceased Yalavarthi Seshaiah in favour of his great grandsons yet to be born to the elder son of Yalavarthi Ranga Rao namely
Yaravarthi Venkata Venu Gopalaswamy. So, the alleged Will is totally forged and fabricated as the deceased Yalavarthi Seshaiah died intestate.
Further, the 6th defendant has mentioned in the reply notice that as per the said Will, the grandson of deceased Seshaiah, who is 16th defendant and his sons defendants 17 and 18 were partitioned their property under registered partition deed dated 03.10.2012, in which the 16th defendant got the plaint schedule property towards his share. So, the alleged partition deed is also a collusive and self served document, it is not binding on the plaintiffs and remaining sharers. The plaint schedule property is to be partitioned into eight equal shares among the class-I heirs of deceased Seshaiah and the LRs of his deceased children. Hence, the plaintiffs are constrained to file the
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present suit for partition of the plaint schedule property into eight equal shares with separate possession and future mesne profits thereon. Hence, the suit.
3(a). On receipt of the summons, the defendants 1 to 15 did not choose to appear before the Court, they remained set ex parte. The defendants 16 to 18 appeared before the Court and filed their written statement by denying the averments of the plaint. They submitted that there is no joint family property in existence as alleged in the plaint. The plaintiffs and defendants are not at all joint family members as on the date of filing of the suit, but they admitted the branches of relationship as mentioned in the plaint. It is the contention of the defendants 16 to 18 that deceased Yalavarthi Seshaiah purchased the plaint schedule property under a registered sale deed dated 06.03.1959 from Garikipati Chandramma of Vullupalem Village. Thereafter, on 16.03.1971, their family properties were partitioned among Yalavarthi
Seshaiah, his seven sons namely Yalavarthi Nancharaiah, Yalavarthi Raja
Rao/6th defendant, Yalavarthi Ranga Rao, Yalavarthi Krishna Murthy, 1st plaintiff, 2nd plaintiff and Yalavarthi Babu Rao. The same was reduced into writing as partition list on 16.03.1971. In the said partition, the plaint schedule property fell to the share of Yalavarthi Seshaiah with absolute rights. So, the said Yalavarthi Seshaiah was the absolute owner of the plaint schedule property. The 6th defendant is the second son of Yalavarthi
Seshaiah who looked after the care and welfare to his parents Yalavarthi
Seshaiah and his wife Ramamani in their old age and that the elder son of 6th defendant namely Yalavarthi Venkata Venugopala Swamy/16th defendant and his wife Komala Devi had rendered service to Yalavarthi Seshaiah and his wife Rama Mani. On that the said Seshaiah executed an unregistered
Will dated 10.01.1987 in favour of his great grand sons yet to be born to the 16th defendant by bequeathing the plaint schedule property to them, the said
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Will is the last Will. As such the said Yalavarthi Seshaiah died by testate but not intestate. Immediately, after the demise of Yalavarthi Seshaiah the Will
dated 10.01.1987 came into operation and 16th defendant who is the elder
son of 6th defendant took possession of the plaint schedule property being father of defendants 17 and 18, the same was known to the plaintiffs and defendants. So that the 16th defendant has been in exclusive possession and enjoyment of the plaint schedule property until partition of their family properties under partition deed dated 03.10.2012. But in the said partition, the plaint schedule property was allotted towards the share of 16th defendant as such the plaint schedule property has been in exclusive possession and enjoyment of the 16th defendant with absolute rights. Except the 16th defendant nobody has any right, title, interest as well as alleged joint possession over the plaint schedule property.
3(b). The defendants 16 to 18 further submitted that the name of the 16th defendant was also mutated in revenue records and got issued pattadar passbooks, title deed with the name of 16th defendant. Further, the 16th defendant mortgaged the plaint schedule property in Indian Bank,
Pedakallepalli Branch and obtained agricultural loan. So, it was never in joint possession and enjoyment of plaintiffs or other defendants as pleaded in the plaint. Further that the plaintiffs and other defendants colluded together, made a false representation to the Tahsildar, Koduru on 26.07.2015 against the 16th defendant by questioning the mutation of his name in revenue adangals for the plaint schedule property. After receipt of the notice from
Tahsildar, the 16th defendant submitted a detailed written explanation by mentioning the real facts and enclosing the copies of the documents. Then the said Tahsildar closed the said representation, the same was clear knowledge to the plaintiff and other defendants. But the plaintiffs have suppressed all these material facts and filed the suit in collusion with other
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defendants. Even after receiving the notice, the 6th defendant got issued reply dated 10.08.2016 by stating true facts that the 16th defendant is only having right, interest and possession over the plaint schedule property with absolute rights. So, there are no bonafide reasons in filing the suit. Hence, the defendants 16 to 18 prays the Court to dismiss the suit.
4.The plaintiff also filed rejoinder to deny the defence of the contesting defendants in their written statement and submitted that the alleged Will
dated 10.01.1987 was prepared by an Advocate Clerk at Machilipatnam
before joining in his employment as he got job in Endowments Department
who received several allegations and irregularities in his service. As such the alleged Will is forged and fabricated one and that the alleged partition deed
dated 03.10.2012 is also invalid and not binding on the plaintiff as the said
partition deed is invented for the purpose of filing of the case by ignoring the legitimate share of the plaintiff. Further the attestors and scribe of the said two instruments are kith and kin of the defendants.
5.During the pendency of the trial, the 1st defendant died, thereupon a memo filed by stating that defendants 2 to 5 were already on record as LRs of the deceased 1st defendant. The 2nd son of 6th defendant was added as 19th defendant in the suit and that the defendants 20 to 22 were added as
LRs of the deceased 3rd son of the 6th defendant namely Atma Jayaram as per orders in I.A.319/2024 dated 06.11.2024 as the 6th defendant died.
Further that the 1st plaintiff died as such the plaintiffs 7 to 9 were added as
LRs of the deceased 1st plaintiff as per the orders in I.A.311/2026 date 07.04.2026. Then after the 16th defendant filed additional written statements by denying the averments of the amended plaint and the defendants 17 and 18 filed adoption memo.
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6.Basing on the pleadings the predecessor of the Court framed the following issues.
1. Whether the registered partition deed dated 03.10.2012 is true and valid?
2. Whether the joint nucleus as pleaded by the plaintiff is true?
3. Whether the partition list dated 06.03.1971 is valid under law?
4. Whether the plaintiffs 1 to 6, defendants 1 to 15 are entitled for partition and separate possession as prayed for?
5. Whether the plaintiffs 1 to 6 and defendants 1 to 15 are entitled for future profits?
6. To what relief?
7.During the course of trial, the 2nd and 6th plaintiffs were examined as
PWs.1 and 2 and got marked Exs.A1 to A35. After closure of the plaintiffs’ side evidence, the defendants 16 to 18 were examined as DWs.1 to 3 and got marked Exs.B1 to B6. One Sanivarapur Sriram Krishna who is one of the attestor of E.xB1 will was examined as D.W4. The Finger Print Expert was examined as CW.1 through an Advocate Commissioner and Exs.C1 and C2 were marked through CW.1.
8.Heard arguments from both sides.
Issues 1 to 3
9.As the issues 1 to 3 are interrelated to decide the material issue involved between both parties, which are dealt jointly to the sake and convenience of the Court for better appreciation of the evidence. The learned counsel for the plaintiffs argued that the plaint schedule property to an extent of Ac.1-14 cents in R.S.No.538/3 of Viswanadhapalli revenue village was purchased by Yalavarthi Seshaiah under E.xA1 registered sale deed dated 06.03.1959, but during his lifetime there was earlier partition
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between Yalavarthi Seshaiah and his seven sons for their family properties, in that partition, the plaint schedule property to an extent of Ac.1-14 cents in
R.S.No.538/3 was allotted to Yalavarthi Seshaiah towards his share. The said earlier partition was reduced into writing under Ex.A35 partition list
dated 16.03.1971 and the deceased Yalavarthi Seshaiah had been enjoyed
the plaint schedule property with absolute rights and he died intestate at about 25 years ago by leaving behind his wife and children. After his demise, his wife Ramamani enjoyed the said plaint schedule property, then after her demise, the plaint schedule property has been in joint and constructive possession of the plaintiff and defendants as joint family property. The defendants 16 to 18 have no exclusive right over the plaint schedule property, but in order to defeat or defraud the right of share of the plaintiffs in the plaint schedule property, the defendants 16 to 18 colluded together and created the alleged Will and partition deed dated 03.10.2012 by stating that the plaint schedule property was allotted to the 16th defendant towards his share. Further, the alleged Ex.B1 Will dated 10.01.1987 is forged and fabricated one and that the defendants 17 and 18 would not get any right, title and interest over the plaint schedule property by virtue of the said forged
Will as well as the 16th defendant would not get any right, title and interest over the plaint schedule property by virtue of original of Ex.B2 partition deed
dated 03.10.2012. These documents are invented by the contesting
defendants in order to grab the share of plaintiff in the plaint schedule property which are not binding upon the plaintiff.
10.Further, the learned counsel for the plaintiff argued that when the plaintiffs sent the Ex.B1 Will to the Finger Print Expert, then the C.W.1 finger print expert has sent detailed report as the thumb impression of the testator on Ex.B1 Will was smudged as such Ex.B1 Will is unfit to compare the admitted thumb marks of the testator available on mortgage deed. So, the
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evidence of C.W.1 and Ex.C1 report of the Fingerprint Expert clearly proves that the alleged Ex.B1 Will is forged and fabricated. As such the defendants 16 to 18 are not entitled any exclusive right over the plaint schedule property as such the plaint schedule property is liable to be partitioned into 8 equal shares.
11.On the other hand, the learned counsel for the defendants 16 to 18 argued that there is no dispute with regard to purchasing the plaint schedule property by Yalavarthi Seshaiah under Ex.A1 registered sale deed dated 06.03.1959. Further, there is no dispute with regard to earlier partition of family properties among deceased Yalavarthi Seshaiah and his children and that the plaint schedule property was allotted towards share of Yalavarthi
Seshaiah and the said earlier partition was reduced into writing under
Ex.A35 partition list dated 16.03.1971. Further, as per the earlier partition, the remaining sharers who are the children of Yalavarthi Seshaiah have to give two bags of paddy to Yalavarthi Seshaiah towards maintenance of
Yalavarthi Seshaiah and his wife Ramamani. But unfortunately, the sharers were not provided the said two bags of paddy to the Yalavarthi Seshaiaha and his wife. On that the said Yalavarthi Seshaiah and his wife were under shelter of 6th defendant and the 16th defendant, who is the son of 6th defendant and wife of the 16th defendant were rendered service to the
Yalavarthi Seshaiah and his wife during their lifetime. In view of that the deceased Yalavarthi Seshaiah had bequeathed the plaint schedule property to his great grandson yet to be born on the date of execution of Ex.B1 Will and put a condition that the name of Yalavarthi Seshaiah must be named to his great grandson. So, after 20 days of execution of Ex.B1 Will, the 17th defendant was born to the 16th defendant as his eldest son. Then after the demise of Yalavarthi Seshaiah, Ex.B1 Will came into force and the 17th defendant became absolute owner of the plaint schedule property as eldest
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son of 16th defendant. But in the year 2012 there was partition of family properties among 16th defendant and his two sons, who are defendants 17 and 18. In the said partition the plaint schedule property was allotted towards the share of 16th defendant under Ex.B2 registered partition deed dated 30.10.2012. Since then the 16th defendant has been in possession and enjoyment of the plaint schedule property by paying land revenue to the concerned authorities and his name was mutated in revenue records.
Further, when the plaintiffs made representation to Tahsildar, Koduru on that the defendants 16 to 18 received notice from the Tahsildar and 16th defendant had produced all relevant documents before the Tahsildar,
Koduru. Then the Tahsildar, Koduru closed the said petition by coming to the conclusion that the 16th defendant is the absolute owner of the plaint schedule property. So, the plaint schedule property never in joint and constructive possession of plaintiffs and other remaining sharers at any point of time. As such the plaintiffs are not entitled any relief for partition of the plaint schedule property.
12.Upon perusing the rival contentions of both parties and material available on record, it is an undisputed fact that originally the plaint schedule property was purchased by Yalavarthi Seshaiah under Ex.A1 registered sale deed dated 06.03.1959. Further, it is an admitted fact that one Ramamani is the wife of Yalavarthi Seshaiah and they blessed with seven sons and one daughter during their wedlock, who are 1st plaintiff (Yalavarthi Arjuna Rao), 2nd plaintiff (Yalavarthi Ramarao), Nancharamma, Nancharaiah, Ranga Rao, 6th defendant (Yalavarthi Rajarao), Krishna Murthy and Sai Babu. Further that, the plaintiffs 7 to 9 are the wife and children of the deceased 1st plaintiff.
The defendants 1 to 5 are the husband and children of the deceased daughter of Yalavarthi Seshaiah by name Nancharamma. It is a fact that during pendency of the suit, the 1st defendant died and his LRs, defendants
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2 to 5 were already on record. The plaintiffs 3 to 6 are the children of
Yalavarthi Nancharaiah, who is the third son of Yalavarthi Seshaiah. The defendants 16 to 18 are the son and grandsons of 6th defendant who is the 5th son of deceased Yalavarthi Seshaiah. The defendants 7 to 9 are the legal heirs of deceased Yalavarthi Krishna Murthy, who is the 6th son of deceased
Yalavarthi Seshaiah. The defendants 10 to 12 are the legal heirs of
Yalavarthi Sai Babu, who is the 7th son of deceased Yalavarthi Seshaiah.
The defendants 13 to 15 are the legal heirs of Yalavarthi Ranga Rao who is the 4th son of deceased Yalavarthi Seshaiah. Further, the defendants 19 to 22 were also legal heirs of the deceased 6th defendant.
13.Further, the defendants 16 to 18 also never denied about the earlier partition among the Yalavarthi Seshaiah and his seven sons for partition of their family properties and the said earlier partition was reduced into writing under Ex.A35 partition list dated 16.03.1971 as it is the stray admission of
D.W.1 during the cross-examination that in the year 1971, during lifetime of his grandfather Yalavarthi Seshaiah, that Yelavarithi Seshaiah and his children entered into partition under Ex.A35, since 1971 onwards his paternal grandfather was in possession and enjoyment of land to an extent of Ac.1-14 cents.
14.In addition to that it is also the stray admission of P.W.1 during the cross-examination that on 16.03.1971, the P.W.1, his father Yalavarthi
Seshaiah and his brothers executed partition list under Ex.A35 and the said partition list clearly disclosed about earlier partition among them and that basing on Ex.A35, the schedule property fell to the share of his father
Yalavarthi Seshaiah and one Satyanarayana was the scribe of Ex.A35 and after execution of Ex.A35, his father Yalavarthi Seshaiah got absolute rights over the schedule property to an extent of Ac.1-14 cents. So, this portion of evidence of P.W.1 and D.W.1 clearly proves that there is no dispute with
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regard to contents and execution of Ex.A35 partition list with regard to earlier partition between Yalavarthi Seshaiah and his children during lifetime of
Yalavarthi Seshaiah and that neither the plaintiffs nor contesting defendants raised any objection to deny the contents of Ex.A35 partition list for the earlier partition of family properties of Yalavarthi Seshaiah and his children.
15.Further, in pursuance of recitals of Ex.A35 partition list which was executed among sons of Yalavarthi Seshaiah namely Yalavarthi
Nancharaiah, Yalavarthi Raja Rao, Yalavarthi Ranga Rao, Krishnudu,
Arjunudu, Rama Rao and Sai Babu, it was clearly recited that they partitioned the joint family properties equally and their respective shares are enjoyed with exclusive rights and free encumbrance and allotted land to an extent of Ac.1-15 cents in R.S.No.538/3 to their father Yalavarthi Seshaiah with an understanding to give two bags of paddy each sharer per annum to
Yalavarthi Seshaiah and his wife Ramamani towards their maintenance. So, as per the recitals of Ex.A35 there was an earlier partition among the sons of
Yalavarthi Seshaiah and Yalavarthi Seshaiah that earlier partition was reduced into writing under Ex.A35 partition list. In addition to that as per
Ex.B2 certified copy of partition deed dated 03.10.2012, wherein it was also recited that there was oral partition in the year 1960 among the Yalavarthi
Seshaiah and his seven sons and the said oral partition was reduced into writing under partition list dated 16.03.1971 as per the said oral partition and partition list, the plaint schedule property to an extent of Ac.1-14 cents in
R.S.No.538/3 was allotted to deceased Yalavarthi Seshaiah. So, if the recitals of E.xA35 in coupled with the admission of PW.1 and D.W.1 is to be taken into consideration, it can be safely said that there was earlier oral partition in the year 1960 among the deceased Yalavarthi Seshaiah and his seven sons, the said partition was reduced into writing under Ex.A35 partition list. So, when there was an earlier partition and subsequently it was
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reduced into writing as partition list,, obviously Ex.A35 partition list can be used as corroborative evidence as explaining the arrangement made there under and conduct of the parties, further a partition already completed orally does not require registration. However, if the document itself was used to create or divide the property on that date, registration is compulsory. More over in the case of K. Arumuga Velaiah Vs. PR Ramasamy, 2022 SCC
OnLine SC 95 where inthe Hon’ble supreme court held that a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under
Section 17(2)(v) of the Act.
16.In addition to that if the recitals of Ex.A35 is not taken into consideration as partition list, then the other mode of standard proof of
E.xA1 original sale deed is to be taken into consideration that the deceased
Yalavarthi Seshaiah purchased the plaint schedule property as his self acquired property under Ex.A1. As such the plaint schedule property is the self acquired property of the deceased Yalavarthi Seshaiah as per Ex.A1, so that the deceased Yalavathi Seshayya has every right to either alienate or transfer the same to anybody during his lifetime. On the other hand when the case of the both parties is to be taken into consideration that the joint family properties of deceased Yalavarthi Seshaiah and his seven sons were orally partitioned and reduced the said partition into writing under Ex.A35 partition list, then it can be said that whatever the plaint schedule property allotted to the share of deceased Yalavarthi Seshaiah, it comes to the separate property of deceased Yalavarthi Seshaiah and he has every right, interest and title over the said property either to alienate or transfer the same
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to anybody as the said property is free encumbrance property of deceased
Yalavarthi Seshaiah.
17.Moreover, the plaintiffs and defendants never denied possession and enjoyment of the plaint schedule property by the deceased Yalavarthi
Seshaiah during his lifetime as his separate property. But it is the specific case of the plaintiff that the deceased Yalavarthi Seshaiah died intestate at about 25 years ago, after his demise, the plaint schedule property was enjoyed by his wife Ramamani, then after demise of the said Ramamani, the plaint schedule property has been in joint possession and enjoyment of the plaintiffs and defendant as joint family property. So, in order to substantiate the said material fact, it is burden lies upon the plaintiffs to prove that the plaint schedule property is in their joint possession and enjoyment as joint nucleus property after the demise of Yalavarthi Seshaiah and his wife
Yalavarthi Ramamani. On that the 2nd plaintiff and 6th plaintiff filed their chief- affidavits as Pws.1 and 2 in lieu of their chief-examination as contemplated under Order 18 Rule 4 CPC, which reiterated the contents of their plaint pleadings, so it need not be reproduced the entire contents of their chief- affidavits. But some extent of relevant contents of their chief-affidavits can be considered to decide the material issue. As it is the specific case of the
Pws.1 and 2 that after the demise of Yalavarthi Seshaiah, the plaint schedule property is in joint possession and enjoyment of plaintiffs and defendants as joint family property as on the date of filing of the suit.
18.On that during the cross-examination, the P.W.1 categorically stated on one hand that at the time of filing of the suit, the schedule property to an extent of Ac.1-14 cents is in possession of their seven brothers and sister, on the other hand, it is also the stray admission of P.W.1 during the cross- examination that the schedule property is in possession and enjoyment of 6th defendant since the date of filing of the suit and also admitted that they filed
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an application before the Tahsildar, Koduru prior to filing of the suit with regard to 6th and 16th defendants were illegally enjoyed the property and mutated their names in revenue records as being a joint family property, then M.R.O. issued notice to 6th and 16th defendants to produce evidence.
On that the 6th and 16th defendants attend before the Tahsildar along with a
Will alleged to be executed by their father Yalavarthi Seshaiah on 10.01.1987, basing on which they are enjoying the property. So, this portion of evidence of P.W.1 clearly shows that the 6th and 16th defendants are in possession and enjoyment of plaint schedule property prior to filing of the suit, so if such is the case, certainly the plaintiffs would not have in joint possession and enjoyment of plaint schedule property as joint family property.
19.Further, it is also the evidence of P.W.2 during the cross-examination that there is no documentary evidence to prove that he, his brothers or his father jointly cultivated the plaint schedule property except his oral evidence, but prior to filing of the suit they used to cultivate the schedule property, but subsequent to filing of the suit Yalavarthi Venugopala Swamy (16h defendant) cultivating the schedule property. Further, it is also the evidence of P.W.2 during the cross-examination that the P.W.2 personally cultivated the schedule property prior to filing of the suit from 1985 to 2000 and he used to pay 14 bags of paddy to his maternal grandmother. But there is no documentary proof to show that the P.W.2 has personally cultivated the scheduled property on lease from his paternal grandmother and that P.W.2 and his paternal grandfather used to reside separately. So, admittedly, there is no documentary proof to show that the plaint schedule property has been in joint possession and enjoyment of the plaintiffs and P.W.2 and that they cultivated the plaint schedule property on lease from the wife of deceased
Yalavarthi Seshaiah.
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20.Further, it is also the stray admission of P.W.2 during the cross- examination that there is no documentary evidence to show that the schedule property is joint property except Ex.A35. Further, the P.W.2 categorically admitted during the cross-examination that on 26.07.2015 they approached Tahsildar of Koduru and submitted a representation stating that the schedule property is joint family property. On that a notice was issued to defendants 2, 16 to 18 by the Tahsildar. So, this portion of evidence of
P.W.2 clearly proves that even prior to filing of the suit that the plaint schedule property is in possession and enjoyment of the defendants 16 to
18. As such they may be made representation to Tahsildar, Koduru against the defendants 16 to 18 for mutation of names of the said defendants in revenue records.
21.Further, during the cross-examination the D.W.1 categorically stated that the schedule property is in their possession and denied the suggestion that after the demise of his paternal grandparents, the plaint schedule property comes to joint family property of their legal heirs. Except mere suggestion nothing could be proved anything that the plaint schedule property is in joint possession and enjoyment of the plaintiffs and defendants as joint family property. Further, during the cross-examination of D.W.2 nothing could be proved, elicited anything that the plaint schedule property is in joint possession and enjoyment of the plaintiffs and defendants as joint family property. Moreover, if really the plaint schedule property is continued in joint possession and enjoyment of the seven sons and daughter of deceased Yalavarthi Seshaiah and his wife, then after their demise, certainly any one of the joint family member of the property can pay the land revenue either with the name of deceased Yalavarthi Seshaiah or with the name of any one of the joint family member. But the plaintiffs have not filed
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any such proof of document to show that they have continued to pay land revenue to the concerned authorities and treated the plaint schedule property as joint family property. So, in the absence of any cogent evidence, it cannot be said that the plaint schedule property is in joint possession and enjoyment of plaintiffs and defendants and that the plaintiffs have failed to prove the plaint schedule property is their joint nucleus and in their joint possession and enjoyment as on the date of filing of the suit.
22.In addition to that on the other hand it is the specific case of defendants 16 to 18 that after partition the family properties of deceased
Yalavarthi Seshaiah and his seven sons and reduced the said past partition into writing under Ex.A35, anybody of sons of Yalavarthi Seshaiah never looked after the care and welfare of Yalavarthi Seshaiah and his wife
Ramamani and failed to give two bags of paddy per year to them as per the condition of E.xA35 during their lifetime. As such Yalavarthi Seshaiah and his wife came to get shelter from the 6th defendant as he is one of the son of
Yalavarthi Seshaiah and that the elder son of 6th defendant who is 16th defendant and his wife Komala Devi looked after the care and welfare of
Yalavarthi Seshaiah and his wife by rendering service to them until death of
Yalavarthi Seshaiah and his wife Ramamani. On that in view of the said circumstances, love and affection, during lifetime of Yalavarthi Seshaiah executed Ex.B1 Will in favour of his great grandson who yet to be born as elder child to 16th defendant with a specific condition that the name of
Yalavarthi Seshaiah should be named to elder son of 16th defendant if elder child of 16th defendant is not male issue, the name of Yalavarthi Seshaiah should be named to second child of 16th defendant. As such after the demise of Yalavarthi Seshaiah Ex.B1 Will came into force and the great grandsons of Yalavarthi Seshaiah who are defendants 17 and 18 became absolute owners of the plaint schedule property. Further, in the family partition among
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defendants 16 to 18 under original of Ex.B2 registered partition deed, the plaint schedule property was allotted to 16th defendant. Since then the 16th defendant has been in possession and enjoyment of plaint schedule property by paying land revenue to the concerned authorities and his name was also mutated in revenue records, which proved under Exs.B3 to B6. As such the plaint schedule property never in joint possession and enjoyment of the plaintiffs and defendants 1 to 5, 7 to 15, remaining defendants at any point of time even after the demise of deceased Yalavarthi Seshaiah and his wife Yalavarthi Ramamani. So that the plaintiffs and remaining have nothing to do with the plaint schedule property.
23.On the other hand, it is the specific case of the Pws.1 and 2 that the alleged Ex.B1 Will is forged and fabricated one as the Yalavarthi Seshaiah died intestate and that when the plaintiffs made an effort to send the Ex.B1
Will to the Fingerprint Expert for comparison of thumb impression of deceased Yalavarthi Seshaiah thereon with the admitted thumb marks of
Yalavarthi Seshaiah on the mortgage deed dated 31.03.1960 then the
Fingerprint expert CW.1 clearly expressed his opinion that as the disputed thumb impressions of Yalavarthi Seshaiah on Ex.B1 Will were smudged, as such which were unfit to compare the thumb impressions available on the mortgage deed dated 31.03.1960. So, when the C.W.1 has submitted his opinion under Ex.C1 report, it can be said that the Ex.B1 Will is forged and fabricated one as such the defendants 16 to 18 would not get any right, title and interest over the plaint schedule property.
24.So, when the plaintiffs denied about the recitals and execution of
Ex.B1 Will by deceased Yalavarthi Seshaiah, then it is burden lies on the propounder of Ex.B1 Will who are defendants 16 to 18 to prove the recitals and execution of Ex.B1 Will. In order to prove the said material fact, the
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defendants 16 to 18 filed their chief affidavits as D.Ws. 1 to 3, it reiterated the contents of their written statements pleadings, so the entire contents of their chief-examinations need not be reproduced herein. But during the cross-examination, the D.W.1 categorically stated that he was at 25 years old his grandfather Seshaiah executed Ex.B1 Will at V.Kothapalem Village and that his grandfather Seshaiah may be aged around 90 years at the time of execution of Ex.B1 Will, further, his grandfather Seshaiah is an illiterate as he is marksman. Further, the DW.1 stated that he was not present at the time of execution of Will as Ex.B1 Will was not executed in his presence. But one or two months after the death of Yalavarthi Seshaiah, he saw Ex.B1
Will, then the contents of Ex.B1 Will were read over to DW.1. So, this portion of evidence clearly shows that the Ex.B1 Will was not executed in the presence of D.W.1 who is 16th defendant in the main suit.
25.Further, it is also the evidence of D.W.1 during the cross-examination that his grandfather Seshaiah is a thumb impressionist and one Yalavarthi
Nancharaiah, Sanivarapu Sivarama Krishna, Meka Venkateswara Rao and other two persons in total five persons subscribed their signatures on Ex.B1
Will. Further, the D.W.1 stated that he does not know the persons namely
Meka Venkateswara Rao, Chittiprolu Subrahmanyam and that his junior maternal uncle’s daughter who is second attestor namely Siva Rama
Krishna was given to him on marriage. So, he has a good relationship with the second attestor of Ex.B1 Will. But he has no good relationship with children of Yalavarthi Nancharaiah as he is one of the attestors of Ex.B1 Will and one of the son of Yalavarthi Seshaiah.
26. In addition to that it is also the evidence of DW.1 during the cross- examination that the signatures of Yalavarthi Nancharaiah on registered mortgage deed dated 31.03.1960 executed by Yalavarthi Seshaiah,
Nancharaiah and others in favour of Kamisetti Basavakoti Nagaiah and the
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signature on Ex.B1 Will are similar. So, this portion of evidence proves that the signature of Nancharaiah on mortgage deed dated 31.03.1960 and signature of Nancharaiah as attestor on Ex.B1 Will are similar. Further, the
D.W.1 denied the suggestion during his cross-examination that the signature on mortgage deed dated 31.03.1960 and the signature on Ex.B1 Will do not resemble and the D.W.1 and his father/ 6th defendant forged the signatures of Yalavarthi Nancharaiah on Ex.B1 Will. So, according to the plaintiff’s contention that they also denied the signature of Yalavarthi Nancharaiah as attestor on Ex.B1 Will also. But they did not make any effort to prove that the signature of Yalavarthi Nanchariah as attestor on E.xB1 is forged one.
Moreover, the aforesaid evidence of D.W.1 clearly shows that the deceased
Yalavarthi Seshaiah was thumb marker and attestors, scribe were signatories on Ex.B1 Will. Further, except mere suggestion, nothing could be proved during the cross-examination that the Ex.B1 Will is forged and fabricated.
27.In addition to that as it can be seen in the cross-examination of DW.2 he categorically stated that he did not know personally about the contents of
Will dated 10.01.1987 as even at the time of partition the said Will dated 10.01.1987 is not in his possession. But it is an admitted fact that as per Will
dated 10.01.1987, he has to succeed the schedule property. Further, he did
not know one Yalavarthi Nancharaiah, Meka Venkateswara Rao and
Battiprolu Subrahmanyam who were signed as attestors and scribe on
Ex.B1 Will. Further, the D.W.2. stated that as per Ex.B1 Will, his father 16th defendant is not beneficiary and he denied the suggestion that Ex.B1 Will is a forged document. So, this portion of evidence proves that the alleged
Ex.B1 Will was executed by Yalavarthi Seshaiah in the presence of
Yalavarthi Nancharaiah, Meka Venkateswara Rao who were signed as attestors and one Battiprolu Subrahmanyam who scribed the Ex.B1 Will.
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Further the E.xB1 will was not executed in the presence of D.W2 as such the
D.W2 do not have any personal knowledge about the contents of E.xB1 will.
28.During the cross-examination, the D.W.3 categorically stated that he was not born at the time of execution of Ex.B1 Will. So, he does not have any personal knowledge about the contents of Ex.B1. But on reading the contents of Ex.B1 Will that one Subrahmanyam is the scribe, but he is unable to understand the surname of the scribe mentioned in Ex.B1 Will
dated 10.01.1987 and one Sivarama Krishna is his maternal uncle. But he
did not know Yalavarthi Nancharaiah, who signed as attestor of Ex.B1 and one Meka Venkateswara Rao who signed as 3rd attestor of Ex.B1 Will and as per Ex.B1 Will, the father of D.W.3 is not beneficiary and that the D.W.3 denied the suggestion that Ex.B1 Will is a forged document as it was executed without having any right, as such it is not valid document. So, except mere suggestion nothing could be proved anything that the Ex.B1
Will is the forged and fabricated one. Further that as per the evidence of
D.Ws. 1 to 3 that one Subrahmanyam was scribe of Ex.B1 and one Meka
Venkateswara Rao and Yalavarthi Nancharaiah were attestors of Ex.B1 Will.
So, the said Meka Venkateswara Rao, Sanivarapu Sivarama Krishna and
Yalavarthi Nancharaiah are the material witnesses as attestors of Ex.B1 Will to prove the recitals and execution of Ex.B1 Will as per Section 63 of Indian
Succession Act and Section 68 of Indian Evidence Act as to which clearly speaks that the attestors must be witnessed while the testator signed or put his thumb mark on the Will and that the testator is also witnessed while the attestors signed on the Will and that as per Section 68 of Indian Evidence
Act, the Will must be proved by examining any one of the attestor of the same. As such it is on the part of the plaintiff to prove the recitals and execution of Ex.B1 Will by examining any one of the attestors of the same.
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29.On that the plaintiff got examined one Sanivarapu Srirama Krishna as
D.W.4 who is the second attestor of Ex.B1 Will and his evidence goes to show that he knew the deceased Yalavarthi Seshaiah who is resident of
V.Kothapalem Village of Koduru Mandal and that the said Yalavarthi
Seshaiah and his sons partitioned their family properties and in the said partition, the plaint schedule property fell to the share of Yalavarthi
Seshaiah, further that during lifetime of Yalavarthi Seshaiah had executed an unregistered Will dated 10.01.1987 in favour of his great grandsons yet to be born i.e. the sons of 16th defendant by bequeathing the plaint schedule property to them. The said Will dated 10.01.1987 was properly executed and attested by witnesses as he was present at the time of execution of the said
Will and D.W.4 was signed as second attestor on Ex.B1 Will dated 10.01.1987, further stated that one Yalavarthi Nancharaiah signed as 1st attestor and Meka Venkateswara Rao signed as 3rd attestor, one Bhattiprolu
Subrahmanyam scribed the said Will. It is also the evidence of D.W.4 that he was witnessed at that time Yalavarthi Seshaiah put his thumb impressions on all papers of said Will, he can identify his signatures and other signatures of the said Will including the thumb impression of the deceased Yalavarthi
Seshaiah. Further, the said Will dated 10.01.1987 is the last Will and testamentary document during the lifetime of Yalavarthi Seshaiah.
30.During the cross-examination, the D.W.4 categorically stated that he knew about the schedule property in the name of Yalavarthi Seshaiah prior to 1987, but he did not go through the document in that regard. Further stated that he cannot say the contents of Ex.B1 Will now. But Ex.B1 was executed on a conquest papers, it consists of three pages, Seshaiah affixed his thumb impression on Ex.B1 Will. Further, lastly the D.W.4 has seen the original of Ex.B1 Will about two years back as he is relative to 16th defendant that 16th defendant is his brother-in-law by courtesy. Further, the D.W.4
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categorically stated that he never signed as an attestor in any one of the Will prior to 1987 or subsequent date except the Ex.B1 Will. But he did not know the residence of 3rd attestor and he does not remember the physical features and complexion of scribe of Ex.B1 Will and he did not know whether the scribe of Ex.B1 Will is a pleader’s clerk in Bandar in the year 1987. So, this portion of evidence of D.W.4 clearly shows that except the D.W.4 as signed as second attestor and witnessed while the testator put his thumb impression on Ex.B1 Will, the D.W.4 do not have any knowledge about the residence and particulars of the other attestors and scribe of Ex.B1 Will as the D.W.4 would have no occasion to secure the particulars and residence of other attestors and scribe of Ex.B1 Will as it is the clear evidence of D.W.4 that they do not know him. Moreover, the D.W.4 is aged person of 71 years as such he cannot recollect the past things about the physical features and complexion of scribe of Ex.B1 Will as such he can say that he does not remember the physical features and complexion of scribe of Ex.B1 Will and it is nothing wrong on the said statement of DW.4 about the said scribe.
Further, mere the D.W.4 stated as he does not remember the age, physical features and complexion of scribe and do not know the remaining attestors of Ex.B1 Will the entire evidence of D.W.4 cannot be discarded as the evidence of D.W.4 has not shaken during the cross-examination to prove that Ex.B1 Will is forged and fabricated one. Further, it is also the evidence of D.W.4 that the specific reason for execution of Ex.B1 Will by deceased
Yalavarthi Seshaiah is that for naming the name of Yalavathi Seshaiah to his great grandsons.
31.At this juncture, in pursuance of recitals of Ex.B1 Will that as the sons of Yalavarthi Seshaiah have failed to obey the condition to give two bags of paddy towards expenses of Seshaiah and his wife as per family partition, on that the said Seshaiah and his wife reached to the house of his second son
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Yalavarthi Rajarao for shelter and their care and welfare. On that his second son (6th defendant) and son of the 6th defendant, who is 16th defendant and the wife of the 16th defendant namely Komala Devi have been rendered service to him and his wife with utmost love and affection in their old age. As such the testator Yalavarthi Seshaiah bequeathed his land to an extent of
Ac.1-14 cents in R.S.No.538/3 to his first great grandson yet to be born to 16th defendant as the wife of 16th defendant was pregnant by the time and also second great grandson to be born to the 16th defendant and his wife.
So, if the during life the testator Yalavarthi Seshaiah is not seen his great grandsons to be born to 16th defendant, then the schedule property is to be taken into possession of 6th defendant and that the 6th defendant shall be handed over the said property to 16th defendant immediately after born the first great grandson of Yalavarthi Seshaiah to the 16th defendant, then after the 16th defendant shall be protected the said property by enjoying the usufruct thereon un till the great grandsons of Yalavarthi Seshaiah became majors. Except that neither the 16th defendant nor anybody has the right to alienate or mortgage the property to anybody. Further, if the children of 16th defendant are not alive immediately after they are born, then the said property shall be reverted to the 6th defendant, then after the 6th defendant has every right to alienate or transfer the said property to anybody as per his will and wish. Further, the said original Will is handed over to the son of
Seshaiah namely Yalavarthi Nancharaiah with a direction that the said
Nancharaiah shall be handed over the said Will to 16th defendant through 6th defendant along with original link documents of the said property.
32.So, according to the gist of recitals of Ex.B1 Will, the plaint schedule property was bequeathed by the testator to the first two sons of 16th defendant, who are great grandsons to the deceased Yalavarthi Seshaiah.
Further, the 16th defendant has every right to enjoy the usufructure on the
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plaint schedule property until the 17th and 18th defendants became majors, who are the sons of 16th defendant. After the 17th and 18th defendants attained majority, they became absolute owners of the plaint schedule property. Further, in pursuance of evidence of Dws.1 to 4, which are also equally corroborating with the above said recitals of Ex.B1 Will and nothing could be disproved during the cross-examination of D.Ws.1 to 4 about the recitals and execution of Ex.B1 by the plaintiffs.
33.On the other hand, it is the contention of the plaintiffs that they disbelieved the execution and thumb impression of testator and other attestors on Ex.B1 Will and when the plaintiffs made an effort to send the
Ex.B1 Will to the finger print expert for comparison of thumb impression of the testator on Ex.B1 Will with the admitted thumb impression of the testator available on the mortgage deed dated 31.03.1960. On that the finger print expert send Ex.C1 report by stating that the disputed thumb impressions marked as D1 on the first page, D2 on the second page, D3 on the third page of original Will dated 10.01.1987 (Ex.B1) are smudged, not clear and wanting in clear ridge characteristics required for the purpose of comparison and establishing identity. As such which are unfit for comparison. So, in such circumstances, it can be said that Ex.B1 Will is forged and fabricated and that when the finger print expert gave specific opinion that when the ridge characteristics are smudged, then the opinion of the finger print expert is final to determine the Ex.B1 Will is forged and fabricated.
34.To that context the learned counsel for the plaintiff rely upon the decision reported in 2002 (2) ALD 277 (DB) Dasari Umamaheswara Rao
and another vs. Somasi Venkata Ramachandra Murthy and others.
Wherein the Hon’ble High Court of Judicature, A.P. at Hyderabad held that it is in evidence that one of the attestor is no more but other attestor who is alive was not examined and no explanation is forthcoming for non-
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examination of other attestor. But in view of the provisions of Section 63 of
Indian Succession Act, it can be said that the Will Ex.A1 had not been proved according to law. Further, that delay in filing of the Will also throws suspicion more so, when it is an unregistered Will. If the Will had been really executed by the deceased, they would have taken steps to act upon that Will and get their names mutated. Further, it is difficult to disbelieve that the thumb impression was taken on account of shaken hands of the testator because nothing prevented the testator from signing with shaken hands.
Therefore, it is not inclined to believe the version of the defendant on this aspect. But in the instant case, the defendants 16 to 18 got examined the one of the attestor of Ex.B1 Will as D.W.4 as per section 68 of Evidence Act and that the facts stated in the decision are not similar to the present case facts, as such it is not applicable to the present case.
35.In addition to that as seen the evidence of CW.1 who is finger print expert, he deposed that after receiving the case file, he has examined the case file thoroughly and marked the disputed thumb impressions on Ex.B1
Will dated 10.01.1987 as D1 to D3 and the same were photographed by the photographer, finger print bureau under E.xC2 in his presence, then after he submitted his opinion under Ex.C1 report as the thumb impressions are smudged and not clear. During the cross-examination, the C.W.1 categorically stated that the method of examination as ACE-V has not yet been mentioned in Ex.C1 report and that as per the All India Forensic guidelines, that must be less than eight ridges of characteristics to come to an opinion. So, any thumb impression does not have eight ridge characteristics; it can be said as unfit. But he has not mentioned in the
Ex.C1 report how many ridge characteristics or thumb impressions are available or verified by him. Further, in Ex.C2, three original photos do not have any suit number, but his office has given C.No.127/04/APB-CID-2025
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with his initial and marking on the disputed thumb impressions. So, admittedly, as per the evidence of C.W.1 in coupled with Ex.C1 and C2, there is no specific opinion as thumb impressions on Ex.B1 are forged. As it is the opinion of C.W.1 that the thumb impression on Ex.B1 are smudged as such unfit for comparison. So, basing on the said opinion of CW.1, it cannot be come to conclusion that the Ex.B1 Will is forged as the other evidence of
D.W.4 attestor of Ex.B1 clearly established about the execution and thumb impressions of testator on Ex.B1 Will, further the expert opinion is not at conclusive proof as it must be corroborated with other material witnesses.
36.Further the learned counsel for the plaintiffs rely upon the decision reported in AIR 1962 SC 567 Rani Purnima Debi and another Vs Kumar
Khagendra Narayana Deb and another, AIR 1959 Supreme court 448
H.Venkatachala Iyengar Vs B.N. Thimmajamma and others. Where in the
Hon’ble supreme court held that the onus of proving the will was on the
propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was the circumstances that gave rise to doubts, it was for the propounder to satisfy the conscience of the court to remove the doubts by clear and satisfactory evidence.
37.The learned counsel for the plaintiffs also rely upon the decision reported in 2004(4) ALD 689 V. Krishna Murthy Vs Veluru Venkata subbaiah and others where in the Hon’ble High court of AP Judicature at
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Hyderabad held that when the plaintiff proved the will executed by the 1st defendant in favour of 5th defendant is suspicious, when the class- I heirs are very much available and further in the absence of the filing original of E.xB3 by the 1st defendant and the 2nd defendant has failed to offer proper explanation under what circumstances, he could not file original of Ex.B3 and as to why he has not taken steps contemplated under section 65 of
Indian evidence act though he has alleged that a complaint was made to the police that P.W1 has taken the original of E.xB3 will. On reading the entire facts referred to in the decision state supra is different from the present case facts, so it is not applicable to the present case facts.
38.The learned counsel for the plaintiffs rely upon the decision reported in
1993(3) ALT 256(DB) where in the Hon’ble High court of AP Judicature
at Hyderabad held that It is settled law that though joint family need not necessarily own any property, but once ancestral nucleus is proved all the subsequent acquisition irrespective of the fact as to whether they stand in the name of either”Kartha or other member of joint family, even female members are deemed to be joint family properties, unless the same is rebutted by clinching evidence by the person setting up the said properties as his self acquisitions. But in the instant case it is not the case of the plaintiffs that the plaint schedule property is their ancestral property as it is the specific case of the plaintiffs that the plaint schedule property was the separate property of deceased Yalavarthi Seshayya. So the decision stated supra is not applicable to the present case facts.
39.On the other hand, it is the case of the defendants 16 to 18 that during the partition of their family properties under Ex.B2 partition deed dated 03.10.2012 that the plaint schedule property to an extent of Ac.1-14 cents in
R.S.No.538/3 was allotted to 16th defendant towards his share, since then the 16th defendant has been in possession and enjoyment of the plaint
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schedule property by paying land revenue to the concerned authorities, which proved under Ex.B3 to Ex.B6 land revenue receipts. As such the plaint schedule property never in joint possession and enjoyment of the plaintiffs at any point of time either during lifetime of deceased Yalavarthi
Seshaiah or subsequent to death of Yalavarthi Seshaiah as to during life time of Yalavarthi Seshayya executed Ex.B1 Will by bequeathing the plaint schedule property to defendants 17 and 18 with specific terms and conditions.
40.On the other hand, the learned counsel for the plaintiffs argued that the 16th defendant would not get any right, title and interest by virtue of original of Ex.B2 partition deed and that there is no documentary evidence to show that the plaint schedule property had been in possession and enjoyment of defendants 17 and 18 as per the terms and conditions mentioned in Ex.B1 Will. So, itself creates a suspicious circumstance on execution of Ex.B1 Will, unless and until to remove the suspicious circumstances, the 16th defendant has no exclusive right over the plaint schedule property by virtue of Ex.B2 partition deed. Further mere name of the 16th defendant was mutated in revenue records does not confer any title over the property to the 16th defendant.
41.During the cross-examination, the P.W.1 categorically stated that there is no evidence to show that the schedule property is in joint possession subsequent to Ex.A35 partition list. Further, he has perused the Ex.B1 Will
dated 10.01.1987 as per the said alleged Will that the vested remainder
rights were given to great grandson and it was also recited in the alleged Will that the name of testator Yalavarthi Seshaiah should be named to his great grandson, accordingly, the great grandson of Yalavarthi Seshaiah name is
Seshaiah. Further, the evidence of P.W.2 does not disclose about the plaint schedule property is in joint possession and enjoyment as on the date of
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filing of the suit and it does not give any credibility on the evidence of P.Ws.1 and 2 that the plaint schedule property is in their joint possession and enjoyment, as they did not file any cogent evidence thereon.
42.On the other hand, during the cross-examination, the DW.1 categorically stated that he does not know whether himself and his father paid any land revenue during the lifetime of his paternal grandfather
Seshaiah and he does not know whether after the death of his grandfather
Seshaiah, there is no revenue record in the name of his father or in his name or in the name of his sons defendants 17 and 18. Further, after the death of his grandfather Yalavarthi Seshaiah that elder son of Yalavarthi Seshaiah namely Yalavarthi Nancharaiah performed the obsequies of Yalavarthi
Seshaiah. Except this portion of evidence nothing could be proved that after the demise of deceased Yalavarthi Seshaiah and his wife, the plaint schedule property comes to be joint family property of legal heirs of
Yalavarthi Seshaiah. Further, it is the evidence of D.W.2 and D.W.3 during the cross-examination that they have no idea that their paternal grandfather/6th defendant, their father/16th defendant and themselves paid house tax to schedule property prior to 2012. They did not file any passbook, adangals pertaining to the schedule property showing possession prior to 2012 and they did not enquire as to who paid tax to schedule property prior to 2012. So, mere the defendants 16 to 17 have not filed any documentary proof to show that they have been paying land revenue to the plaint schedule property prior to 2012, the entire evidence of DW.1 to DW.3 cannot be discarded as the recitals of Ex.B1 Will clearly disclosed that who is having limited interest and who is having vested interest and become absolute owner of the plaint schedule property after demise of Yalavarthi
Seshaiah.
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43.Further that it is settled law that the party who approached the Court with specific assertion he or she has to prove his case on his own strength and they never depend upon the weakness of the opposite party. Admittedly, in the instant case, the plaintiffs have not filed any documentary proof to show that they have been paying land revenue to the concerned authority either with the name of deceased Yalavarthi Seshaiah or with the name of any one of the joint family members for the plaint schedule property and they have failed to prove their joint and constructive possession in the plaint schedule property prior to filing of the suit. Further, the plaintiffs got much knowledge about the 16th defendant has been paying the land revenue to the concerned authorities since 2012 onwards as it was elicited during the cross-examination of D.W.2 and D.W.3, but they did not take any effective steps by claiming their joint possession and enjoyment of the plaint schedule property and that they simply made representation before Tahsildar, Koduru, on that the Tahsildar, Koduru enquired the same and it was closed after receiving the relevant documents from the defendants 16 to 18.
44.On the other hand, it is also the version of plaintiff that the Ex.B2 partition deed does not disclose about the existence of Ex.B1 Will. So, the alleged Ex.B1 Will might be created after execution of Ex.B2 partition deed.
On that as seen the cross-examination of D.W.1 he categorically stated that though as per Ex.B1 Will the property devolved to the 17th defendant, but as per Ex.B2 partition deed, his elder son 17th defendant namely Venkata
Seshaiah Naidu was allotted share as ‘A’ schedule in the family properties and the plaint schedule property to an extent of Ac.1-14 cents was allotted to
D.W.1, but at the time of execution of Ex.B2 partition deed, they have no thought of mentioning about Ex.B1 Will. So that Ex.B1 Will was not mentioned in Ex.B2. In addition to that it is also the evidence of Dws.2 and 3 that as per Ex.B1 Will, the D.W.2 i.e. 17th defendant has to succeed
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schedule property but as per Ex.B2 partition deed executed among their family members, the D.W.2 has not succeeded the same and there was no reference with regard to Ex.B1 in Ex.B2 partition deed as they do not have knowledge to mentioning the Ex.B1 Will in Ex.B2 partition deed. So, this portion of evidence of Dws.1 to 3 clearly shows that in view of lack of knowledge to mention the Ex.B1 Will in the recitals of Ex.B2, for that they did not mention about Ex.B1 Will in the recitals of Ex.B2.
45.Moreover, in pursuance of the recitals of Ex.B2 that the father of the 16th defendant who is 6th defendant acquired the property in the oral partition among his father and brothers prior to 1960, then it was reduced into writing, then after the demise of 6th defendant, his properties were devolved upon to the defendants 16 to 18 by succession and they have been in possession and enjoyment as joint family properties as such they intend to division of their joint family properties in view of family disputes. Accordingly, their joint family properties are partitioned under Ex.B2. As per Ex.B2 that the property wherein shown as ‘A’ schedule of item No.1 which is the plaint schedule property given to 16th defendant towards his share besides another extent being total extent of Ac.3-31 cents.
46.Further, as seen the Ex.B3 to Ex.B6 house tax receipts, which proved that the 16th defendant has been paying land revenue for the plaint schedule property with his name from Fasali 1419 to 1424 its corresponding years from 2009 to 2014 as to as per Ex.B1 Will that the vested remainder rights of the defendants 17 and 18 will start from the date of attaining their majority, till then the 16th defendant has to in possession and enjoyment of the plaint schedule property. So that the 16th defendant may be paid the tax with his name, as such Ex.B3 land revenue receipt dated 26.07.2012 shows that he paid the land revenue for the plaint schedule property from 2009 to 2011.
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So, the Ex.B3 to Ex.B6 clearly proves that the 16th defendant has been paying land revenue to the concerned authorities for the plaint schedule property and that the plaintiffs have failed to prove the material issue that though the 16th defendant paid the tax with his name, but the plaint schedule property is in joint possession and enjoyment of all the legal heirs of deceased Yalavarthi Seshaiah and that Ex.A2 to A33 are exchange of notices and its postal acknowledgments and Ex.A34 is the Me-seva copy of original of Ex.B2 partition deed, which does not prove the joint possession and enjoyment of the legal heirs of deceased Yalavarthi Sehaiah in the plaint schedule property. So, in the absence of any material evidence, it can be said that the plaint schedule property is not in joint possession and enjoyment of the legal heirs of deceased Yalavarthi Seshaiah. So the original of E.xB2 registered partition deed dt 03-10-2012 is binding on the plaintiffs and other legal heirs of deceased Yalavarthi Seshaiah.
47.So, having considering all these facts and circumstances, aforesaid discussion, it comes to conclusion that as the plaintiffs have failed to discharge their burden by preponderance of probabilities to prove that the plaint schedule property is in joint possession and enjoyment of the legal heirs of deceased Yalavarthi Seshaiah and also failed to prove Ex.B1 Will is forged and fabricated. As such Ex.B2 partition deed is true and valid, binding on the plaintiffs and other legal heirs of deceased Yalavarthi Seshaiah and that there is no dispute with regard to Ex.A35 partition list, as such it can be said that it is valid document. Accordingly, issue Nos.1 to 3 are answered.
ISSUE No.4 and 5
48.In view of considering the discussion in issue Nos.1 to 3 and that as the plaintiffs have failed to prove their joint possession and enjoyment of the plaint schedule property as on the date of filing of the suit and also failed to
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prove that the plaint schedule property is joint family property, as such the plaintiffs are not entitled for partition and separate possession of the plaint schedule property and that the plaintiffs are also not entitled for any mesne profits as claimed by them. Accordingly, issue Nos.3 and 5 answered.
ISSUE No.6 49.In the result, the suit is dismissed with costs.
Typed by Stenographer to my dictation on computer, corrected and
pronounced by me in open Court, this the 1st day of May, 2026.
Civil Judge (Senior Division),
Avanigadda.
APPENDIX OF EVIDENCE
Oral Evidence
For plaintiffs. PW.1: Yalavarthi Rama Rao. PW.2: Yalavarthi Seshagiri Rao.
For defendants: DW.1: Yalavarthi Venkata Venugopala Swamy. DW.2: Yalavarthi Venkata Seshaiah Naidu. DW.3: Yalavarthi Venkata Seshaiah Naresh. DW.4: Sanivarapu Srirama Krishna.
CW.1: C.Vinod Kumar, Fingerprint Expert.
Documentary Evidence
For plaintiffs: Ex.A1 is the registered sale deed in favour of late Yalavarthi Seshaiah by Garikapati Chandramma doc.no.573/59 dt.06.03.1959.
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Ex.A2 is the office copy of legal notice by the plaintiffs 1 and 2 to the plaintiffs 3 to 6, the defendants 1 to 15 dt.12.07.2016.
Ex.A3 is the postal receipt to the 3rd plaintiff dt.25.07.2016.
Ex.A4 is the postal receipt to the 4th plaintiff dt.25.07.2016.
Ex.A5 is the postal receipt to the 5th plaintiff dt.25.07.2016.
Ex.A6 is the postal receipt to the 6th plaintiff dt.25.07.2016.
Ex.A7 is the postal receipt to the 16th defendant dt.25.07.2016.
Ex.A8 is the postal receipt to the 17th defendant dt.25.07.2016.
Ex.A9 is the postal receipt to the 18th defendant dt.25.07.2016.
Ex.A10 is the postal receipt to the 1st defendant dt.25.07.2016.
Ex.A11 is the postal receipt to the 2nd defendant dt.25.07.2016.
Ex.A12 is the postal receipt to the 3rd defendant dt.25.07.2016.
Ex.A13 is the postal receipt to the 4th defendant dt.25.07.2016.
Ex.A14 is the postal receipt to the 5th defendant dt.25.07.2016.
Ex.A15 is the postal receipt to the 6th defendant dt.25.07.2016.
Ex.A16 is the postal receipt to the 7th defendant dt.25.07.2016.
Ex.A17 is the postal receipt to the 8th defendant dt.25.07.2016.
Ex.A18 is the postal receipt to the 9th defendant dt.25.07.2016.
Ex.A19 is the postal receipt to the 10th defendant dt.25.07.2016.
Ex.A20 is the postal receipt to the 11th defendant dt.25.07.2016.
Ex.A21 is the postal receipt to the 12th defendant dt.25.07.2016.
Ex.A22 is the acknowledgement from the 3rd plaintiff.
Ex.A23 is the acknowledgement from the 4th plaintiff.
Ex.A24 is the returned notice from D17 dt.03.08.2016.
Ex.A25 is the acknowledgement from D1.
Ex.A26 is the acknowledgement from D2.
Ex.A27 is the acknowledgement from D3.
Ex.A28 is the acknowledgement from D4.
Ex.A29 is the acknowledgement from D5 dt.26.07.2016.
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Ex.A30 is the returned notice from the 10th defendant dt.27.07.2016.
Ex.A31 is the returned notice from the 12th defendant dt.27.07.2016.
Ex.A32 is the reply notice by the 6th defendant dt.10.08.2016.
Ex.A33 is return notice of 8th defendant.
Ex.A34 is Me-Seva copy of partition deed dated 03.10.2012 among the defendants 13 to 15.
Ex.A35 is partition list dated 16.03.1971.
For defendants:
Ex.B1 is original unregistered Will dated 10.01.1987 executed by Yalavarthi Seshaiah in favour of his great grandsons i.e. defendants 17 and 18.
Ex.B2 is certified copy of registered partition deed executed among DW.1 and defendants 17 and 18.
Ex.B3 is original land revenue receipt dated 26.07.2012 paid by DW.1 to the plaint schedule property and his other properties fro fasali 1414 to 1421.
Ex.B4 is original land revenue receipt dated 01.04.2013 paid by DW.1 to the plaint schedule property and other properties for fasali 1422.
Ex.B5 is original land revenue receipt dated 07.03.2014 paid by DW.1 to the plaint schedule property and his other properties for fasali 1423.
Ex.B6 is original land revenue receipt dated 16.03.2015 paid by DW.1 to the plaint schedule property and his other properties for fasali 14224
Ex.C1 : Report of Finger Print Expert.
Ex.C2 : Three photographs.
Civil Judge (Senior Division),
Avanigadda.