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IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (Sr.Division)
VIJAYAWADA.
Present: SMT. K.MADHAVI DEVI,
Principal Civil Judge (Sr.Division), Vijayawada.
Monday, this the 19th day of JANUARY,2026
O.S.No.601/2018
Between:
Alla Jayalakshmi, w/o.late Sekhar Babu, Hindu, aged about 55 years, properties, D.No.541848, No.1 street, Midhila Nagar, Near Amma Kalyana……….Plaintiff Mandapam, Vijayawada 520 008.
And
1.Vaddi Annapurnamma, w/o.Narayana Rao, Hindu, aged about 63 years, properties, plot No.132, Sai Nagar, Bala Nagar, Hyderabad 500 042.
2.Koduru Kalyani, w/o.Balaji, Hindu, aged about 52 years, properties, r/o.D.No.49373/2, HMT Township, Qusthubullapur mandal, Chinthal, Hyderabad 500 037.
3.Kalyanam Srinivas Ravi, s/o.late Rama Rao, Hindu, aged about48 years, properties, D.No.40629, Near Fortune MuraliParkHotel,Labbipet, Vijayawada 520 010.
4.Kalyanam Subba Rao, s/o.late Rama Rao, Hindu, aged about 46 years, properties, D.No.40629, Near Fortune……….Defendants Murali Park Hotel, Labbipet, Vijayawada 520 010.
This Original suit coming on 17122025 for final hearing before me in the presence of Sri.A.V.Siva Ram, Sri.J.V.R.L.Narasimham, Advocates for the plaintiff and of Sri.K.V.V.Parameswara rao, Advocate for the
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1stdefendant, Sri.D.Pitchaiah, Sri.D.P.Ramakrishna, Advocates for 4th defendant and defendants 2 and 3 remained exparte and the matter is having stoodover to this day for consideration and this Court upon hearing and perusing the entire material on record and upon consideration, delivered the following:
J U D G M E N T
1.The suit is filed by the plaintiff against the defendant for passing preliminary decree for partition of plaint schedule property items into Five (5)equal shares and put the plaintiff in her 1/5th share by fixing the metes and boundaries which is in common and joint possession of both the parties to the suit and to appoint a commissioner to effect the partition of the plaint schedule items and to ascertain the past and future profits from 2015 onwards to the date of realization and till the plaintiff is put in her 1/5th share of the plaint schedule property items and for costs.
2.The case of the plaintiff is that one Kalyanam Rama Rao who is her father is the absolute owner of a building consisting of Seven (7) shops in the ground floor and 10 rooms in the first floor bearing D.No.40629 in an extent of 728 sq.yds situated at Labbipet, Vijayawada and it is his self acquired property. The said Rama Rao died on 5.5.1988 leaving behind his wife, two sons and four daughters as his legal representatives to his estate.
After demise of said Rama Rao, his wife Lakshmi Kanthamma made a request to his sons for partition of the said property and to allot one such share to her but the defendants 3 and 4 not chosen to hear the words of said
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Lakshmi Kanthamma and due to noncooperation of her sons, she filed a suit in O.S.123 of 2001 on the file of Principal Civil Judge(Senior Division),
Vijayawada against only her two sons and sought to effect partition of the above referred property into three equal shares and to allot one such share to her and even though the plaintiff and defendants 1 and 2 and also another daughter by name Nagalakshmi are legal representatives as all the daughters of late Rama Rao, they have not shown in the said suit and after knowing the same, the daughters of late Rama Rao approached the Hon’ble court for impleading themselves and impleaded as parties to the suit and contested the suit alongwith defendants 3 and 4.
It is the further case of the plaintiff that after trial, the Hon’ble court passed preliminary decree dividing the property into six equal shares and also allotted one such share to the mother of plaintiff also. Thereafter, defendants 3 and 4 preferred appeals on the said Judgment and the appellate authorities also confirmed the trail court decree and dismissed those appeals. Thereafter, the plaintiff alongwith her sisters filed final decree petition and the same was allowed and Advocate commissioner was appointed to divide the property in to Seven equal shares and allotted the shares according to law and the same is allowed and also plaintiff and her sisters obtained regd. partition deed through the Principal Civil Judge(Senior
Division), Vijayawada and the plaint schedule property of the present case is
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one such share allotted to the plaintiff’s mother by name Lakshmi
Kanthamma i.e. item 1 of plaint schedule property, since then it is in her possession and enjoyment.
The plaintiff further submits that the defendants 3 and 4 preferred appeals on all the petitions including final decree petition but the appellate authorities dismissed by confirming the orders of the trial court in the preliminary decree and also in final decree petition. Further, the mother of the both parties by name Lakshmi Kanthamma died intestate on 20.9.2010 and plaintiff and defendants being her legal representatives inherited to her shares and the plaintiff having 1/5th share in the plaint schedule property.
The plaintiff alongwith her sisters have issued a legal notice on 23.6.2011 to the defendants 3 and 4 calling upon them to divide the plaint schedule property into Five(5) equal shares and allot their shares and defendants 3 and 4 duly acknowledged the said notice and kept quiet. The plaintiff is entitled 1/5th share in item 1 of plaint schedule. Further the 2nd item shown in the plaint schedule property is the self acquired property of late Lakshmi
Kanthamma and she purchased the said property from its erstwhile owner on 20.7.1987 through sale deed which was duly registered before the Sub
Registry of Gannavaram vide doc.2264 of 1987 and it is also in her possession and enjoyment till her death and after her death it is in common possession and enjoyment of all the parties to the suit as legal
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representatives and this item is also shown in the notice which was issued by plaintiff alongwith her sisters but the defendants have not chosen to effect partition of the items of plaint schedule into five equal shares and allot one such share to the plaintiff. Hence, the plaintiff filed the suit.
3.The 1st defendant filed written statement denying the allegations of the plaint and submitted that a preliminary decree was passed in
O.S.No.123 of 2001 after adding plaintiff, 2nd defendant and one
Tirumalasetty Naga Lakshmi as defendants in the said suit. In the said suit preliminary decree was passed on 2.2.2007, on that defendants 3 and 4 preferred an appeal in A.S.No.100 of 2007 on the file of Hon’ble VII Addl.
District Judge, Vijayawada and the same was dismissed on 11.3.2008.
Subsequently, final decree was passed in I.A.No.590 of 2007 on 2.9.2010 by granting 1/7th share to this defendant even then she was not a party to the proceedings. After passing final decree, 4th defendant in this suit preferred
Appeal in A.S.No.94/2011 against final decree passed by the Principal Civil
Judge(Senior Division), Vijayawada and the same was dismissed in the year
2017. Against the said orders, 4th defendant in the present suit preferred 2nd appeal S.A.No.1248 of 2018 and in the said S.A.1248 of 2018 the said
Kalyanam Subba Rao has filed I.A.No.2 OF 2018 and the Hon’ble court granted stay of all proceedings in O.S.No.123 of 2001.
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The defendant further submits that the 4th defendant filed suit
O.S.No.326 of 2016 on the file of III Addl. Civil Judge(Senior Division),
Vijayawada seeking to declare the plaintiff and defendants herein are only entitled to 1/7th share of Tirumalasetti Nagalakshmi and to declare that the said Ramesh Babu is not the legal representatives of his wife and for recovery of possession and other relief.
The 1st defendant further submits that the plaintiff alongwith her sisters got issued a notice to the defendants 3 and 4 on 23.6.2011 claiming for partition of items 1 and 2 of plaint schedule property and also claimed partition of other property. Further the plaintiff and her two sisters avoided to implead this defendant who is also as proper and necessary party in the entire litigation but now they impleaded this defendant in the present suit claiming 1/5th share to the defendants and plaintiff. Item No.1 of plaint schedule property is not in joint possession of plaintiff and defendants.
Further the defendant submits that suit is not maintainable under law as the plaintiff has not come forward for partition of all properties relating to
Kalyanam Lakshmikanthamma and hence the court fee paid by plaintiff is not tenable and plaintiff must pay court fee on her 1/5th share and for possession hence, the suit is liable for dismissal.
4.The 4th defendant filed written statement submitting that the suit is not maintainable as per law and that late Kalyanam Lakshmi Kanthamma
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has executed a Will dt.8.9.2010 in sound and disposing state of mind bequeathing the property shown in the item No.1 of the plaint schedule property in favour of this defendant and also Item 2 to the 3rd defendant and it is the last testament of the testator and subsequently she died on 20.9.2010. The plaintiff and other defendants are not in possession and enjoyment of the plaint schedule properties, hence the court fee paid by plaintiff is not correct. The said Will was scribed by one J.S.Sastry and attested by Sri K.Siva Rao and J.Siva Prasad. Further suit is liable to be dismissed as it amounts to partial partition as all the properties claimed in the notice dt.26.6.2011 are not shown in the plaint schedule. Further submits that this defendant filed suit O.S.326 of 2016 before the
III Addl. Civil Judge's court (Senior Division),Vijayawada for partition as such plaintiff filed this suit as counter blast for the said suit because of increase of prices and also this defendant and 3rd defendant filed counter and contesting the Execution proceedings filed by plaintiff and another sister. Hence, prayed to dismiss the suit.
5.Basing on the above pleadings, the following issues are framed for trial:
1)Whether the plaintiff has established that the suit schedule properties are the self acquired properties of her father K.Rama Rao and she got 1/5th share in both the plaint schedule items 1 and 2?
2)Whether the subject matter and reliefs sought in O.S.No.123 of 2001 & O.S.326 of2016 are one and the same between the same parties involving same issues?
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3)Whether the suit is barred by doctrine of Res judicata in view of the earlier suits O.S.123 of 2001, O.S.326 of 2016?
4)Whether the mother of the plaintiff K.Lakshmi Kanthamma executed a Will dt.8.9.2010 in respect of items 1 in favour of Defendant No.4 and item No.2 in favour of Defendant No.3 as pleaded by Defendant No.4?
5)Whether Defendant No.4 has established the execution of Will dt.8.9.2010 removing all suspicious circumstances and negatived the claim of the plaintiff?
6)Whether the plaintiff is entitled to seek partition and separate possession of 1/5th share in both the plaint schedule items 1 and 2?
7)Whether the plaintiff is entitled to seek second relief in the present suit?
8)To what relief?
On 7.11.2019 the following Additional issues are framed:
1)Whether the court fee paid by the plaintiff is sufficient and correct?
2)Whether the suit filed by the plaintiff is prematured in view of the relief court proceedings?
3)Whether the plaintiff has been in joint possession and enjoyment of the plaint schedule items 1 and 2?
6.During the course of trial, on behalf of the plaintiff, plaintiff herself is examined as PW1 and got marked Exs.A1 to A6. On behalf of defendant,
DW1 to DW4 are examined and Ex.B1 to B10 are marked.
7.Heard both sides.
8. ISSUE Nos.1,4,5,6 & 7 & Addl.Issue No.2 & 3 :
1)Whether the plaintiff has established that the suit schedule properties are the self acquired properties of her father K.Rama Rao and she got 1/5th share in both the plaint schedule items 1 and 2?
4)Whether the mother of the plaintiff K.Lakshmi Kanthamma executed a Will dt.8.9.2010 in respect of items 1 in favour of Defendant No.4
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and item No.2 in favour of Defendant No.3 as pleaded by Defendant No.4?
5)Whether Defendant No.4 has established the execution of Will dt.8.9.2010 removing all suspicious circumstances and negatived the claim of the plaintiff?
6)Whether the plaintiff is entitled to seek partition and separate possession of 1/5th share in both the plaint schedule items 1 and 2?
7)Whether the plaintiff is entitled to seek second relief in the present suit?
Addl.Issues No.2&3:
2)Whether the suit filed by the plaintiff is prematured in view of the relief court proceedings?
3)Whether the plaintiff has been in joint possession and enjoyment of the plaint schedule items 1 and 2?
These above issues are taken up together for discussion for the sake of convenience and for better appreciation and so as to avoid repetition.
To prove the case of the plaintiff, plaintiff herself is examined as PW1 and Exs.A1 to A6 are marked. In the chief examination affidavit she reiterated the contents of plaint. In the cross examination Pw1 admitted that defendants 3 and 4 herein filed A.S.No.100 of 2007 against the decree and
Judgment in O.S.No.123 of 2001 and admitted that 4th defendant herein filed a suit O.S.No.326 of 2016 on the file of III Addl.Senior Civil Judge,
Vijayawada seeking declaration that himself and other brothers and sisters are only legal heirs of the deceased Nagalakshmi. PW1 deposed that during the pendency of said suit, 5th defendant of the said suit in O.S.No.326/2016 by name Ramesh was died and one Tirumalasetty Naga Nithesh and
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Tirumalasetty Sirisha filed I.A.No.38 of 2018 to implead them as legal representatives of deceased Ramesh and the said petition was dismissed on 20.6.2018.
9.Pw1 admitted that Item 1 of suit schedule property in this suit was allotted to her mother in final decree proceedings in I.A.No.590 of 2007 in
O.S.No.123 of 2001 and as per final decree 1/7th share i.e. 103 sq.yrds was
allotted in respect of item No.1 to her mother. PW1 admitted that she shown four items of properties in Ex.A2 legal notice and shown two items of properties in the present suit.
10.Further PW1 deposed that her mother was having 400 s.y. site at
Namburu, Guntur District and shown the said property in the present suit.
PW1 admitted that her mother filed suit O.S.No.123 of 2001 on the file of
Principal Civil Judge’s court(Senior Division), Vijayawada for partition of
joint family properties and preliminary decree was passed in the year 2007 and final decree was passed in the year 2010. The defendant No.4 herein filed 2nd appeal in S.A.No1248 of 2018 on the file of Hon’ble High Court of
Andhra Pradesh and obtained stay orders in respect of passing of final decree. Pw1 deposed that Item No.2 of the suit schedule property was
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purchased by her mother with her own funds and that she filed present suit for partition in respect of items 1 and 2 of suit schedule properties.
11.Pw1 further deposed that the 4th defendant is collecting rents from item No.1 of suit schedule property. She did not pay the taxes to item No.1 of suit schedule property. PW1 admitted that she got issued legal notice dt.23.6.2011 seeking partition of plaint schedule properties through her earlier counsel but she does not remember the contents of said notice and admitted that in the said notice partition was sought for in respect of three immovable properties and one movable property i.e. fixed deposit and postal savings amount.
12.To support of the case of the plaintiff, she filed Ex.A1 to A6 i.e. Ex.A1 is the certified copy of Judgment and decree in A.S.No.100 of 2007 on the file of Hon’ble VII Addl.District Judge, Vijayawada dt.11.3.2008, Ex.A2 is the office copy of notice got issued by her alongwith her sisters to the defendants 3 and 4 dt.23.6.2011, Ex.A3 is the acknowledgements from the defendant
No.3 to the notice got issued by them, Ex.A4 is the acknowledgements from defendant No.4 to the notice got issued by them, Ex.A5 is the Final decree proceedings in I.A.590 of 2007 in O.S.No.123 of 2001, Ex.A6 is the xerox copy of sale deed dt.20.7.1987.
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13.On behalf of the defendants, the 1st defendant filed chief affidavit as
DW1 and herself is chief examined but later did not attend for cross examination hence the chief examination of DW1 is eschewed on 1322024.
The 4th defendant is examined as DW2 and to support his contentions examined DW3 and DW4 and also Ex.B1 to B10 are got marked.
14.The 4th defendant/DW2 got filed his chief examination affidavit by reiterating the contents of his written statement. In the cross examination
DW2 deposed that the plaintiff is seeking with regard to 1/5th share from the share of his mother and deposed that the properties covered in
O.S.No.123 of 2001 which was filed by his mother before this court was
decreed in favour of his mother for partition of schedule property into 7 equal shares and to allot one such share to his mother and for mesne profits. DW2 deposed that he is looking after all the affairs of plaint schedule property and tenants are paying rents by depositing in this court and he admitted that the final decree was passed in I.A.590 of 2007 in O.S.No.123 of 2001 and as per final decree the property was allotted and divisioned.
15.DW2 further deposed that he preferred an Appeal on the decree and
Judgment in O.S.No.123 of 2001 before the Hon’ble VII Addl.District Judge,
Vijayawada in A.S.100 of 2007 and the same was dismissed on 11.3.2008 and deposed that they did not make partition of the property as per decree in
O.S.No.123 of 2001. He deposed that during the life time of his mother the
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income arising out of schedule property in O.S.No.123 of 2001 is collected by his mother and after the death of his mother some amount collected by him and some other tenants deposited before the court. He does not know whether his mother got registered her share of property in I.A.No.590 of 2007 in O.S.No.123 of 2001. DW2 deposed that after the death of his mother they did not make partition of the share of the property of his mother, which was allotted to his mother as per I.A.No.590 of 2007 in O.S.No.123/2001 i.e.
item No.1 of schedule property in this suit.
16.Further DW2 deposed that he does not know whether the plaintiff or other share holders as per I.A.No.590 of 2007, dt.2.9.2010 got registered their shares or not and he did not enquire about it but on confrontation he admitted the registration of the property in favour of plaintiff in final decree proceedings in I.A.No.590 of 2007 in O.S.No.123 of 2001 under Ex.A5. His sister Naga Lakshmi was dead in the year 2015 and admitted that there are no issues to her and her husband and she had died intestate.
17.Further with regard to O.S.No.326 of 2016, DW2 deposed that he filed
O.S.No.326 of 2016 on the file of III Addl.Civil Judge(Senior Division),
Vijayawada for the relief of declaration and partition to allot the share of his sister/Naga Lakshmi and the said share which was allotted to his sister as per final decree in FDP No.590 of 2007 in O.S.No.123/2001. He has not disputed with the share of his sister/Naga Lakshmi in final decree
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proceedings in FDP 590 of 2007 in O.S.123 of 2001. DW2 deposed that the property situated at Kanasanapalli village was purchased during the lifetime of his father in the name of his mother and his mother also has the capacity to purchase the properties. The entire property is self acquired property of his father. DW2 admitted that the plaintiff issued notice prior to filing this suit for partition of properties in the year 2011 which is in their joint possession and enjoyment. He deposed that in the share of his mother, the tenant was residing by name Sudhakar who is running business in the name of Trisul Travels by paying Rs.2,500/ rent per month by way of cash to him since 2010 after allotment of share of his mother. DW2 deposed that the share allotted to the plaintiff is given for running tiffin center by name
Durga Coffee Hotel since 2000. The rents for Durga Coffee hotel collected by his mother till 2010 thereafter the rents were deposited into the court.
18.Further DW2 admitted that the plaintiff filed suit for partition of the property situated at Kanasanapalli, Agiripalli mandal to allot shares to all share holders and also admitted that the plaintiff in this suit seeking for partition of plaint schedule properties in item 1 and 2 equally. DW2 deposed that the property situated at Kanasanapalli, Agiripalli mandal was purchased by his father on 2071987 but on confrontation he admitted the document i.e. sale deed dt.20.7.1987 is in the name of his mother purchased from Sodisetty Krishnaiah and others which is marked under Ex.A6 and till
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today the property for item 1 of schedule property is in the name of his father and item 2 is in the name of his mother.
19.Further with regard to execution of Will DW2 admitted that in Ex.B1
Unregistered Will it is mentioned that his mother was suffered with old age health problems and there is no treatment provided by him to his mother.
He deposed that prior to 4 days of death, his mother was suffered from severe skin problem due to that she had died. DW2 deposed that he does not know the reasons for nonregistration of Ex.B1 by his mother. In his absence
Ex.B1 unregistered Will was executed by his mother and his mother had not stated any reasons for excluding the shares to other share holders. DW2 deposed that on the next day of execution of Ex.B1 his mother handed over
Ex.B1 to him but he does not know who attested on Ex.B1 and who drafted and how many signatures of his mother in Ex.B1 and also in whose presence the alleged signatures of attestors were obtained. DW2 deposed that according to him, his mother gave full rights to him through Ex.B1 unregistered Will on the date of 8.9.2010 onwards and also gave direction to him to receive the rents from 8.9.2010 but there is no direction in Ex.B1 by his mother to pay taxes and to continue legal proceedings on behalf of herself with regard to her share.
20.To prove the execution of Ex.B1 unregistered Will, the defendant No.3 examined DW3. He filed his chief examination affidavit and deposed that he
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was called to sign on the will dt.8.9.2010 as a witness by Smt.Kalyanam
Lakshmikanthamma and Smt.Kalyanam Lakshmikantamma signed on the
Will in the presence of himself and other witnesses after satisfying herself when the contents were readover by the scribe J.S.Sastry and he signed as 1st attester and one K.Siva Rao signed as 2nd attestor.
21.In the cross examination DW3 deposed that he does not know about the disputes in between plaintiff and defendants with regard to the plaint schedule property. The age of Lakshmi Kanthamma i.e. mother of DW1 is aged about 70 years by the time of 2010. DW3 further deposed that the mother of DW1 disclosed the particulars of her children in Ex.B1. He deposed that he does not know from which document the mother of defendant got right on the properties under Ex.B1 and the mother of defendant does not disclosed to him how she succeeded her right on the property was covered under Ex.B1. DW3 further deposed that by the time of 2010 the mother of defendant is hale and healthy and she has not suffered any illhealth. DW3 admitted that he did not disclose where and in whose presence the Ex.B1 was executed by the mother of DW1 and the draft of
Ex.B1 was not prepared in his presence after his arrival the scribe of Ex.B1 read over the contents then he signed on the draft of Ex.B1. DW3 further
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deposed that he does not know how many days prior to his signature the draft of Ex.B1 was prepared.
22.To establish the case of defendants, they examined DW4 through
Advocate Commissioner who is the doctor of the hospital where the mother
Lakshmi Kanthamma was admitted prior to her death. He deposed that as per the information in the registration form, name of the patient’s attendant is Mrs.K.Vijayasri and the relationship mentioned to patient is daughterin law. She/patient was admitted on 15.9.2010 at 20.00 hours and expired on 20.9.2010 at 10.20 hrs as per the available records.
23.In the cross examination DW4 deposed that he does not know what is the actual health condition of Lakshmi Kanthamma at the time of admission as he was not physically present at that time and who attended the patient.
DW4 deposed that as per the medical records available with the hospital, the name of responsible attendant at the time of admission is K.Vijayasri and he has no knowledge apart from the above attendant whether any other family member attended the patient as per available medical records. DW4 deposed that as per medical records there are no referral notes or documents as to the health condition of Kalyanam Lakshmikanthamma and how long he treated the patient and the severity of her illhealth and further DW4 deposed that as per the medical records, the patient was treated by multiple
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doctors including physician, medical officer, cardiologist and neurologist and there is no available document or medical records to say accurately since how long the patient was bedridden and unconscious prior to admission, however it is documented in the patient’s case sheet that she was not able to move about for the last 6 months with suspected fracture of femur and she was not able to take solid food after history of viral fever of one month prior to her admission.
24.To establish the case of the defendants, they got marked Exs.B1 to
B10 i.e. Ex.B1 is the Original Will executed by the mother of 4th defendant dt.8.9.2010, Ex.B2 is the death certificate of the mother of the 4th defendant,
Ex.B3 is the original death certificate of Sri.Sri.Karaka Siva Rao died on 5.5.2021, Ex.B4 is the certified copy of order passed by the Hon’ble High
Court of Telangana & Andhra Pradesh in I.A.2 of 2018 in S.A.No.1248 of 2018, Ex.B5 is the certified copy of sale deed vide document No.2264 of 1987 alongwith typed copy, Ex.B6 is the property tax receipt for the period from 1.10.2022 to 30.9.2023, Ex.B7 is the property tax receipt for the period from 1.4.2023 to 30.9.2023, Ex.B8 is the property tax receipt for the period from 1.4.2024 to30.9.2024, Ex.B9 is the certified copy of Judgment passed in RCCMA 35 of 2014 on the file of Principal Civil Judge(Senior
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Division),Vijayawada obtained from e courts and Ex.B10 is the attested copy of registration Form dt.15.9.2010.
25.On perusal of documentary evidence filed by the plaintiff, Ex.A1 is the
Judgment and Decree in A.S.No.100/2007 on the file of Hon’ble VII Addl.
District Judge, Vijayawada. According to the plaintiff, her mother Kalyanam
Lakshmi Kanthamma filed suit in O.S.123 of 2001 against her two sons for partition of the property and the same was decreed. Then the 4th defendant in this suit preferred Appeal in A.S.No.100/2007 against the Judgment and decree in O.S.123 of 2001 and the same was dismissed on 11.3.2008. To show the said findings in A.S.No.100/2007 the plaintiff filed Ex.A1 certified copy of decree and Judgment. Ex.A2 is the legal notice dt.23.6.2011 issued by Tirumalasetti Naga Lakshmi, Alla Jaya Lakshmi, Koduru Kalyani i.e., daughters of Lakshmi Kanthamma who are the plaintiff, 2nd defendant in this suit to the 4th and 5th defendants and it was issued after the death of their mother Lakshmi Kanthamma by seeking partition of properties as they are the classI legal heirs of Lakshmi Kanthamma. Ex.A3 and ExA4 are the acknowledgements to show the receipt of notice issued by them, Ex.A5 is the final decree proceedings in I.A.590/2007 in O.S.123 of 2001 marked through DW2 in his cross examination. Ex.A6 is the Xerox copy of sale deed dt.20.7.1987.
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26.Further during cross examination of DW2, the Ex.A6 sale deed dt.20.7.1987 was marked. The recitals of Ex.A6 is that the property purchased by the Lakshmi Kanthamma from Sodisetty Krishnaiah and others and same was admitted by DW1 during cross examination also till today the property for Item 1 of schedule property is in the name of his father and Item 2 is in the name of his mother i.e. Ex.A6 photo copy of sale deed dt.20.7.1987.
27.According to defendant No.4, her mother executed an unregistered
Will under Ex.B1 in his favour prior to her death and his mother was given full rights to him through Ex.B1 Will on 8.9.2010 and also gave direction to him to receive the said rents from 8.9.2010 onwards. There is no direction in
Ex.B1 by his mother to pay taxes and to continue legal proceedings on behalf of herself with regard to her share.
28.Further, as per the contention of the defendant No.4, he preferred
Second Appeal against orders in A.S.100 of 2007 in S.A.No.1248 of 2018 and there is a stay pending before the Hon’ble High Court to show that he filed
Ex.B4. As per Ex.B4 the Hon’ble High court of Andhra Pradesh granted interim stay and the matter is posted for after four weeks in I.A.No.2 of 2018 in S.A.No.1248 of 2018 on 24.8.2018 and till today the 4th defendant did not
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file any proceedings pending before the Hon’ble High Court and the stay granted by the Hon’ble High Court is continued, except Ex.B4 no status was filed before this court. It is an admitted fact as per the evidence of both sides after passing preliminary decree in O.S.123 of 2001, the petition for passing final decree was filed in I.A.590 of 2007 and then the Advocate commissioner was appointed and shares were allotted and final decree orders were passed.
In the evidence of DW2, he admitted that final decree was passed in I.A.590 of 2007 in O.S.123 of 2001 and as per the said Final decree petition, the property was allotted and divisioned.
29.The plaintiff filed this suit for partition of item No.1 of schedule property belongs to the share allotted to her mother who is the plaintiff in
O.S.123 of 2001. DW2 admitted about the preliminary decree passed in
O.S.No.123 of 2001 in favour of her mother for partition of schedule property
into equal shares and allotment of one such share to her mother and the appeal preferred by him in A.S.No.100 of 2007 on the file of Hon’ble VII Addl.
District Judge, Vijayawada was dismissed by confirming the decree and
Judgment in O.S.123 of 2001 on 02022007. DW2 deposed that he does not know whether the plaintiff or other shareholders as per I.A.No.590 of 2007 dt.20.9.2010 got registered their shares or not. On confrontation DW2 admitted the registration of the property in favour of plaintiff in final decree
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proceedings in I.A.No.590 of 2007 in O.S.123 of /2001 which is marked as
Ex.A5. So, as per Ex.A5, the property belongs to the share of plaintiff was also got registered as per final decree proceedings dt.20.9.2010. It is admitted by DW2 that they did not make partition of the property out of share of her mother i.e. item No.1 of suit schedule property which was allotted to her as per I.A.590 of 2007 in O.S.No.123 of 2001 after her death.
30.Further as per the evidence of DW2, he admitted that he filed
O.S.No.326 of 2016 on the file of III Addl.Civil Judge(Senior
Division),Vijayawada for partition of share of his elder sister Naga Lakshmi and it is still pending and he admitted that he filed suit for the relief of declaration and partition to allot share of his sister Naga Lakshmi basing on the share allotted to his sister as per final decree proceedings in I.A. No.590 of 2007. He denied the partition of share of their mother decided in the said suit in O.S.123 of 2001 as second Appeal is still pending though he filed suit
O.S.No.326 of 2016 for the declaration and partition of share of his sister
which was decided and allotted as per I.A.590 of 2007 in O.S.123 of 2001.
So, the 4th defendant had in one way admitted the final decree proceedings in I.A.No.590 of 207 and another way his version is that there is Second
Appeal S.A.No.1248 of 2018 is pending and also there is stay. If his contention is genuine that there is a Second Appeal is pending against the decree in O.S.123 of 2001 but there is no reason assigned by him why he
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filed suit in OS.326 of 2016 for partition basing on the shares allotted in the said O.S.No.123 of 2001.
31.The Exs.B6 to B8 are the property tax receipts which are in the name of father of plaintiff and defendants and till today there is no mutation of record. Further, to prove the execution of Ex.B1 unregistered Will he adduced the evidence of DW3 who is one of the attestor of Ex.B1 Will. To show the death of 2nd attestor he filed Ex.B3 death certificate of K.Siva Rao dt.5.5.2021.The 1st attestor was examined as DW3. In his evidence he deposed that he does not know from which document the mother of DW2 got right on the properties. He admitted in his chief examination affidavit that he did not mention about the rights of the children of mother of DW2 and it was not disclosed by her. The Ex.B1 unregistered will was not drafted in his presence. The mother of the plaintiff did not disclose reasons to him for exclusion of other children in the Will. In the evidence of DW3 he deposed that by the time of 2010 the mother of plaintiff Lakshmi Kanthamma is hale and healthy and not suffered from any illhealth. But, the evidence of doctor/DW4 is that as per medical record in which hospital she had died, is disclosed that from last six months she was bedridden due to suspect femur fracture and unable to take solid food due to attack of viral fever from the one month prior to her death on 20.9.2010. So, the evidence of DW3 who is to be a attestor of alleged Ex.B1 unregistered Will not supported by the
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evidence of doctor/DW4 in whose hospital the deceased admitted on 15.9.2010 and died on 20.9.2010. Hence, the Ex.B1 unregistered Will is under suspicious circumstances. It is the burden of the 4th defendant who is propounder of Will to prove that the alleged Will executed by her mother is genuine and validly it was executed.
32.The counsel for the 1st defendant relied on a decision in 2008(4)ALT 567 (N.Jangi Reddy and others vs.Yellaram Narsimha Reddy and others) wherein it was held that “in view of the fact that specific plea relating to non inclusion of certain properties of the joint family had been specifically pleaded in the written statement and Ex.B7 also was put forward since the noninclusion of all the properties of the joint family would definitely effect the rights of alienees and working out equities even at the stage of final decree proceedings. This court is of the considered opinion that a suit for partial partition as such cannot be maintained.”
33.The Counsel for the 4th defendant relied on a Judgment in S.A.315 of 2013 dt.22.11.2017 reported in (Surapareddy Dhana Lakshmi Narasayamma vs.Pantham Tulasiratnam and Ors) wherein it was held that “It is settled law that partial partition is bad, plaintiff knowingly not added house property as one of the items liable for partition in suit schedule properties attached to plaint. Therefore, suit of plaintiff is bad for joinder of all the properties.” The above decisions given by the Hon’ble authorities are not applicable to the facts of the present case.
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34.This court relied on Judgment in Civil Appeal No.6377 of 2012 of
Hon’ble Supreme Court of India (Ramesh Chand (d) their L.Rs vs.Suresh
Chand And another) in para24 wherein it was held that “22. A Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator.It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is , not married, marries after making the Will, by operation of law, the Will stands revoked. Registration of a Will does not make it any more effective.”
35.This Court further relied on a decision reported in AIR 1959 443 ( H.Venkatachala Iyengar vs.B.N.Thimmajamma) wherein the Hon’ble Apex
Court held that “The fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.” “It was also held that the propounder of Will must prove:
(i)that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature
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and effect of disposition and he put his signature on the document of his own free Will and
(ii)when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii)If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.”
36.This court relied on the decision in (2023) 9 SC 734 (Meena Pradhan and others vs.Kamala Pradhan and another) wherein mentioned the essentials to prove a Will.
“10.1.The Court has to consider two aspects; firstly, that the will is executed by the testator, and secondly, that it was the the last will executed by him; 10.2.It is not required to be proved with mathematical accuracy,but the test of satisfaction of the prudent mind has to be applied.
10.3 A Will is required to fulfill all the formalities required under section 63 of the Succession Act, that is to say;
a)The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary.
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the
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direction of the testator, or has received from the testator a personal acknowledgement of such signatures;
(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required.
10.4 For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined.
10.5 The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7 Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence .
10.8 Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator’s last will. In such cases, the initial onus on the propounder becomes heavier.
10.9 The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will; 10.10 One who alleges fraud, fabrication, undue influence etcetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the
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propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
10.11.Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.” “it is clear that in order to rely upon a Will, the same has to be proved in accordance with law. A will has to be attested by two witnesses, and either of the two attesting witnesses have to be examined by the propounder of the Will.”
37.The above decisions given by the Hon’ble authorities are applicable to the facts of the present suit. In the present suit, the 4th defendant produced the Ex.B1 original Unregistered Will and to prove the Will which was alleged to be executed by her mother in his favour, he examined one of the attestors as DW3. The another attestor was died and he filed Ex.B3 death certificate.
In the evidence of DW3 he deposed that the deceased Lakshmi Kanthamma did not disclose her right on the property and also about the reasons for her intention to exclude the other legal heir and only bequeathed her share to the 4th defendant and the contents of Ex.B1 readover to her and then signed in his presence. The Ex.B1 Will is unregistered one and it is handed over to him
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on the next day. As per the evidence of DW4, the mother of plaintiff admitted in the hospital prior to her death on 15.9.2010 and died on 20.9.2010. The evidence of DW4 is that as per patient/Lakshmi Kanthamma case sheet she was not able to move about last six (6) months with suspected fracture of femur and she was not able to take solid food after history of viral fever of one month prior to her admission. In such a situation the deceased executed the alleged Ex.B1 unregistered Will on 8.9.2010 prior to few days of her death as such Ex.B1 is produced which is alleged to be executed under suspicious circumstances without mentioning reasons for excluding the other children. Nowhere in Ex.B1 unregistered Will or in the evidence of defendants side it is mentioned about that the Lakshmi Kanthamma was bedridden, unable to move from the bed. The 4th defendant failed to prove the execution of unregistered Will and which is came into existence by him under suspicious circumstances.
38.To show the right of the mother of plaintiff and defendants for the Item
No.2 of the schedule property they filed Ex.A6 photo copy of sale deed dt.20.7.1987 in which the recitals disclosed that the Item No.2 of schedule property was purchased in favour of her mother/Lakshmi Kanthamma and the said property is not the schedule property in O.S.No.123 of 2001.
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39.As per the evidence of both PW1 and DW2 one of the sister of plaintiff by name Naga Lakshmi was died. In the evidence of DW2 he deposed that from the date of allotment of share to his sister Naga Lakshmi in I.A.No.590 of 2007 till today is kept vacant. In the evidence of Pw1 she deposed that one of his sister by name Naga Lakshmi was died and one Ramesh is her husband and they had no issues. DW2 admitted that the suit in O.S.No.326 of 2016 on the file of III Addl. Civil Judge(Senior Division),Vijayawada filed for partition of share of the deceased Naga Lakshmi. He admitted that the husband of Naga Lakshmi was also died and also admitted that one Suneeta and Niteesh filed petition under Order 1 Rule 10 CPC alleging that they are the children of Naga Lakshmi and Ramesh and the same was dismissed.
Admittedly, as per their evidence the said Naga Lakshmi had no issues.
40.As such the defendant No.4 filed the said suit in O.S.No. 326 of 2016 by seeking partition of share of his sister Naga Lakshmi allotted in O.S.123 of 2001. The plaintiff and defendants are the legal representatives of deceased Lakshmi Kanthamma and Rama Rao who are their children. In this suit there is no continuation of stay orders granted by the Hon’ble High
Court in the year 2018 and the 4th defendant did not file any present proceedings to stop this suit proceedings. The 4th defendant on one hand, he admitted the partition of the shares allotted in O.S.No.123 of 2001 and
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basing on that shares he filed O.S.No.326 of 2016 on the file of III Addl.
Civil Judge(Senior Division),Vijayawada for the share of deceased Naga
Lakshmi who is his sister and on the other hand denied for the partition of the share of his mother in this suit. Admittedly, the share of their mother
Lakshmi Kanthamma was decided in O.S.No.123 of 2001. After her death the plaintiff alongwith other sisters issued notice under Ex.A2 to the defendants 4 and 5 for partition of schedule properties. Admittedly, the plaintiff and defendants are entitled for succession of property as they are the legal heirs of the deceased Lakshmi Kanthamma.
41.According to Section 15 of Hindu Succession Act, 1956
General Rules of Succession in the case of female Hindus (1)The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16
(a)Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b)secondly, upon the heirs of the husband
(c)thirdly, upon the mother and father,
(d)fourthly, upon the heirs of the father; and
(e)lastly, upon the heirs of the mother.
2)Notwithstanding anything contained in sub section (1),
a)any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon
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the other heirs referred in subSection (1) in the order specified therein but upon the heirs of the father; and
b) any property inherited by a female Hindu from her husband or from her fatherinlaw shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub section (1), in the order specified therein,but upon the heirs of the husband.
42.In the present suit, the defendant No.4 failed to establish the execution of unregistered Will marked under Ex.B1 which was alleged to be executed by his mother deceased Lakshmi Kanthamma in favour of defendants 4 and 5. As per the evidence, DW2 admitted that both plaintiff and defendants are in joint possession and enjoyment of the properties.
Hence as per Section 15 of the Hindu Succession Act, a female Hindu died intestate, her property shall devolve firstly upon the sons and daughters including the children of any predeceased son or daughter and the husband.
In this case, the husband of the Lakshmi Kanthamma predeceased to her and after death of deceased Lakshmikanthamma her daughter Naga
Lakshmi was died and admittedly as per the evidence she had no issues.
43.In view of the above evidence and discussions the plaintiff and defendants are entitled for the equal shares of the property i.e. item 1 of
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schedule property of deceased Lakshmi kanthamma. Then for Item No.2 of the schedule property it is also admitted in the evidence that as per the
Ex.A6 photo copy of sale deed dt.20.07.1987 the deceased Lakshmi
Kanthamma is the purchaser of the property. Thus, from the above discussions, the plaintiff and defendants are entitled for their shares in item
No.2 of the schedule property as they are the the legal representative of the deceased Lakshmi Kanthamma. The plaintiff is entitled for the partition of the item No.1 of the plaint schedule property.
44.In the present suit, the another contention of the 4th defendant is that the plaintiff is not seeking the partition of all the properties as mentioned in
Ex.A2 notice as such partial partition cannot be entertained.
45.In a partition suit, where both the parties want partition, a defendant may also be held to be a plaintiff. Though the contention of defendant No.4 is that there are another properties but he did not file any document regarding those properties. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on record by way of pleadings and other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree in relation thereto. But in the present suit except defendant raised contention as in Ex.A2 notice the
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plaintiff has mentioned about other properties, no material is placed before this court to show that there are other properties which are in pending for partition. As such, the plaintiffs and defendants are entitled for the shares in the Items 1 and 2 of the plaint schedule property belongs to the deceased mother Lakshmi Kanthamma. Accordingly, issues 1,4,5,6,7 and Additional
Issues No.2 and 3 are answered.
46.ISSUE No.2 &3:
2)Whether the subject matter and reliefs sought in O.S.123 of 2001 &O.S.326 of 2016 are one and the same between the same parties involving the same issues? 3)Whether the suit is barred by doctrine of Res Judicata in view of the earlier suits O.S.123 of 2001 and O.S.326 of2016?
The suit in O.S.No.123 of 2001 is filed by the deceased Lakshmi
Kanthamma during the life time for partition of the joint family properties and same is decreed. The present suit is filed for the share of deceased
Lakshmi Kanthamma which was decreed in O.S.123 of 2001 and allotted in final decree proceedings as per I.A.No.590 of 2007. As per the evidence of
DW2 he filed the suit in O.S.No.326 of 2016 for partition of the share of his deceased sister Naga Lakshmi which was decreed in O.S.No.123 of 2001 in final decree proceedings as she had no issues. So, the suit in O.S.123 of 2001 is initially filed by their mother Lakshmi Kanthamma for the joint family property. The present suit is only to partition of share of their mother who died subsequently after filing of suit. The suit in O.S.No.326 of 2016
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and O.S.No.123 of 2001 are not one and the same. Further, there is no evidence established by the defendants to show the total properties mentioned in O.S.123 of 2001 filed by the deceased Lakshmi Kanthamma for partition of properties against her children. The present suit is filed by the plaintiff for partition of the share allotted to her mother in O.S.123 of 2001 as she died subsequently and she issued notice to defendants but they did not come forward for partition. In O.S.326 of 2016 as per both parties, 4th defendant filed the said suit for partition of share allotted to his deceased sister Naga Lakshmi in O.S.123 of 2001. So, issue decided in
O.S.123 of 2001 and the issues in this suit are not one and the same. As it
is necessary to decide the partition of the share of deceased Lakshmi
Kanthamma.
47.According to Section 11 of CPC “Res Judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
The subject matters in O.S.123 of 2001 is decided and partitioned between the parties. But the suit in O.S.326 of 2016 filed by 4th defendant by seeking declaration and partition and the shares of properties are to be
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allotted after the death of one of the daughters of Lakshmi Kanthamma. So, the suit in O.S.No.326 of 2016 and the present are filed for partition of the share of their sister mother who died subsequently and also alongwith another property i.e. item No.2 of the schedule property. Thus from the above discussion, the present suit is not hit by res judicata. Accordingly, issues 2 and 3 are answered.
48.ADDITIONAL ISSUE No.1:
Whether the Court fee paid by the plaintiff is sufficient and correct?
As per the evidence of DW2 they are in joint and constructive possession of the plaint schedule property, the court fee paid by the plaintiff is correct. Accordingly, this issue is answered.
49.With regard to past and future profits, to prove the income derived out of Items 1 and 2 of the property, it is to be ascertained after filing separate application by the plaintiff and enquiry.
50.ISSUE No.8:
To what relief?
In the result, this suit is preliminarily decreed without costs for partition of the plaint schedule properties into Five(5) equal shares and allot one such share (1/5th share) to the plaintiff with metes and bounds and separate possession.
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The plaintiff is at liberty to file separate application for ascertaining the past and future profits.
Dictated to the Stenographer, Gr.I., transcribed by him, corrected and
pronounced by me in the open court on this the 19th day of JANUARY,2026.
Sd/K.Madhavi
PRINCIPAL CIVIL JUDGE(Sr.Division)
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Plaintiffs:
PW1:Alla Jayalakshmi
Defendants:
DW1: Vaddi Annapurnamma (eschewed)
DW2:Kalyanam Subba Rao
DW3:J.Siva Prasad
DW4:Ravikanth Kollipara
Documents marked for Plaintiffs: Ex.A1:Certified copy of Judgment and decree in A.S.No.100 of 2007 on the file of VII ADJC, Vijayawada .
Ex.A2:Office copy of notice got issued by plaintiff alongwith her sisters to defendants 3 and 4 dt.23.6.2011.
Ex.A3:Acknowledgements from the defendant No.3, the notice got issued by them.
Ex.A4:Acknowledgements from the defendant No.4 to the notice got issued by them.
Ex.A5: FDP proceedings in I.A.590 of 2007 in O.S.123/2001.
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Ex.A6: photo copy of sale deed dt.20.7.1987.
Defendants: Ex.B1: Original unregistered Will executed by mother of 4th defendant dt.8.9.2010.
Ex.B2: Death certificate of the mother of the 4th defendant.
Ex.B3: Original death certificate of Sri.Karaka Siva Rao died on 5.5.2021.
Ex.B4: certified copy of order passed by the Hon’ble High Court of Telangana & AP in I.A.2 of 2018 in S.A.No.1248 of 2018.
Ex.B5:Certified copy of sale deed vide doc.No.2264 of 1987 alongwith typed copy.
Ex.B6: Property tax receipt for period from1.10.2022 to 30.9.2023
Ex.B7: Property tax receipt for the period from 1.4.2023 to 30.9.2023
Ex.B8: Property tax receipt for the period from 1.4.2024 to 30.9.2024.
Ex.B9:Certified copy of Judgment passed in RCCMA 35 of 2014 on the file of Prl.Civil Judge(Senior Division),Vijayawada obtained from e courts.
Ex.B10: Attested copy of Registration Form dt.15.9.2010.
Sd/K.Madhavi Devi
PRINCIPAL CIVIL JUDGE (Sr.Division)
VIJAYAWADA.