1
IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE: TENALI
Present
SMT K.NAGAMANI
Addl. Senior Civil Judge, Tenali
Thursday, the 16 th day of April, 2020
ORIGINAL SUIT No.244/2013
Between: Kotha Radhamma.. Plaintif
And
1. Tripuraneni Jyothsna Sri
2. Kotha Satyanarayana Vara Prasada Rao (Died)
3. Kotha Lakshmi Annapurna
4. Kotha Srinivasa Rao
5. Kotha Sri Devi
6. Kotha Lakshmi Sujatha
7. Kotha Butchi Koteswara Rao
8. Kotha Sridhar
9. Ellinti Kiranmayi
10. Paruchuri Padmalatha ...Defendants
This suit coming on for final hearing before on 14-02-2020 in the presence of Sri CH.Venkateswara Rao, Advocate for the plaintif and of Sri T.Srinivasa Rao, Advocate for Defendant Nos. 6 to 8; and D1,D3 to D5 and D9 were set exparte and D2 was died; and having stood over to this day for consideration, the court delivered the following Judgment:
J U D G M E N T
The plaintif filed this suit for partition of the plaint schedule properties into four equal shares in good and bad qualities and deliver one such share to plaintif by delivering possession and for future profits towards the rent in respect of the 1/4th share of the plaint schedule properties from the date of suit till the date of possession and for costs.
2.The case of the plaintif is one Kotha Butchi Kotaiah Chowdary having five sons by name Kotha Narasimha Rao, Kotha Radha Krishna Murthy,
Kotha Sambasiva Rao ,second defendant byname Kotha Satyanarayana Vara
Prasada Rao and Kotha Dasaradha Ramaiah and one KanakavalliTayaru is wife of Kotha Butchi Kotaiah Chowdary , first defendant is the sole legal heir and daughter of late Kotha Narasimha Rao , plaintif is the wife of Late Kotha Radha
Krishna Murthy and Kotha Sambasiva Rao and his wife Saraswathi died intestae and issue less, third defendant is the wife and defendants 4 and 5 are the son and daughter of Late Kotha Dasaradha Ramaiah , 6th defendant is the wife, D7 and D8 are the son and D9 and D10 are the daughters of deceased second defendant and the plaint schedule properties are ancestral, coparcener and joint 2 family properties of late Kotha Butchi Kotaiah Chowdary and Item No.1 of the plaint schedule properties is a tiled house and Item No.2 of the plaint schedule property is brick walled thatched house located in the heart of
Sangamjagarlamudi and after the death of Kotha Butchi Kotaiah Chowdary andhis wife Kanakavalli Tayyaru all their properties devolved upon the sons of
Kotha Butchi Kotaiah Chowdary and they have partitioned their joint family landed properties long back by keeping the plaint schedule properties for their joint family and second defendant worked as Munsif in Sangamjagaralamudi till 1985 , subsequently he elected as Surpanch of Sangamjagaralamudi
Panchayat and all the brothers of second defendant lived in some other places on their business and job purpose and used to come to their native place and used to reside in the plaint schedule property occasionally on festivals and functions for that purpsoe the plaint schedule property was kept for the use of joint family , the second defendant who is the Ex-Munsif , Ex-Surpanch look after the plaint schedule propety on behalf of the entire joint family ,the other co-brothers of the secnod defendant were died and the eldest brother Kotha
Narasimha Rao and his wife died intestate leaving behind the first defendant as their sole legal heir , Kotha Sambasiva Rao and his wife Saraswathi died intestate and issue less, hence undivided share of Kotha Sambasiva Rao is devolved upon remaining brothers ,the husband of the plaintif by name Kotha
Radha Krishna Murthy died intestate leaving behind the plaintif who is the wife as his sole legal heir , the said Kotha Dasaradha Ramaiah died intestate leaving behind D3 to D5 as his legal heirs,therefore plaintif, D1,D2 and D3 to D5 have got 1/4th undivided share each in plaint schedule property which is ancestral, coparcener and joint family property and plaintif is in joint possession of the plaint schedule properties along with the defendants, the second defendant managing the plaint schedule properties on behalf of the plaintif and other defendants, therefore plaintif requested the defendants to cooperate for partition of the plaint schedule properties into four equal shares and allot one such share to her, and the defendants admitting her share but postponed the 3 same on some pretext or other and on 2-2-2013 plaintif got issued a legal notice through her advocate to defendant by calling upon them to cooperate for partition of the plaint schedule property within 15 days from the date of receipt of her notice, D2 to D5 received notices but D3 to D5 kept quite and notice of D1 returned with endorsement left without instructions D2 issued reply notice through his counsel with false avements by mentioning that all the brothers of second defendant left the schedule properties long back and item
No.1 of plaint schedule property is old tiled house and long back collapsed ,but second defendant spent more than Rs.2,00,000/- and renovated the tiled house and Item No.2 of the plaint schedule property is a vacant site with thatched house and it is also very old, therefore the said thatched house and cattle shed were removed long back and plaintif and 4th defendant jointly sold away their 2/5th share in Item NO.1 of the plaint schedule property to the second defendant for valid consideration of Rs.60,000/- on 9-6-1985 in the presence of D1 and another and on receipt of entire sale consideration of
Rs.60,000/- from D2, plaintif and 4th defendant executed an agreement of sale for their 2/5th undivided share in Item No.1 of the plaint schedule property since then D2 is in possession and enjoyment of the said 2/5th undivided share along with his share , hence plaintif, D2 to D5 have no right or title or possession over their undivided 2/5th share in Item NO.1 of the plaint schedule property as they already sold the same to the second defendant and Kotha
Sambasiva Rao during his lifetime executed a Will on 10-8-1995 in a sound and disposing state of mind by bequeathing his undivided 1/5th share in Item No.1 of the plaint schedule property and also Ac.0-04 cents of land situated in
D.No.193/4 in Sangamjagaralamudi Village in favour of D2 who is the last testament of Kotha Sambasiva Rao and that will was endorsed and Kotha
Sambasiva Rao died in the month of September, 1995 and after his death second defendant became absolute owner of the share of Kotha Sambasiva
Rao and came into possession of the same and that fact was known to plaintif,defendants and their villagers and relatives,but plaintif suppressed the 4 real facts and got issued legal notices, but the averments of the said reply notice are false and the plaintif did not sell her undivided share along with the 4th defendant in the plaint schedule property to the second defendant on 9-6-1985 or any other date and that sale agreement is fabricated and forged document and Kotha Sambasiva Rao also did not execute any will on 10-8- 1995 or any other date in favour of second defendant and Kotha Sambasiva
Rao died intestate and after issuing the legal notice the defendants are not cooperating for partition of the plaint schedule properties , the plaintif under fear of the death executed a registered will dated 8-3-2013 in favour of Kothuri
Sirisha who is the daughter of her brother by name Mallipeddi Sri Rama Murthy by bequeathing her undivided share in the plaint schedule property in a sound and disposing state of mind,second defendant leased out Item Nos.1 and 2 of the plaint schedule properties to others and getting a rent of Rs.3,000/- per month,but he is not rendering the accounts to the plaintif instead of mediation through personally and mediators and legal notices ,the defendants did not come forward for partition of the plaint schedule property,hence the suit is filed for partition of the plaint schedule property into four equal shares and allot one such share to the plaintif by delivering possession and for future profits towards rent in respect of 1/4th share of the plaint schedule proprieties from the date of suit till the date of possession and for costs of the suit.
3. D6 filed written statement which was adopted by D7,D8 and
D10 but on verifying the record on 11-4-2016 , D10 was set exparte ,subsequently she did not file any petition for setting aside the exparte order passed against her ,therefore might be by mistake it was mentioned in the adoption memo as it was filed by D7,D8 and D10 instead of D7 and D8.
Therefore, as the exparte order was not aside against D10, adoption memo of
D10 cannot be considered.
4.The contest of D6 is she is admitting the relation ship between the parties and according to her during the lifetime of Kotha Sambasiva Rao he executed a will dated 10-8-1985 in a sound and disposing state of mind by 5 bequeathing his undivided 1/5th share in Item NO.1 plaint schedule property and also Ac.0-04 cents land in D.No.194/4 situated in Sangamjagaralamudi
Village in favour of D2 and that is his last and final testament and after the demise of Kotha Butchi Kotaiah Chowdary and his wife Kanakavalli Tayyaru , the estate of Butchi Kotaiah Chowdary devolved upon their five sons equally and the will executed by Kotha Sambasiva Rao was properly attested, duly executed and endorsed and as per the recitals of the will after the death of Kotha
Sambasiva Rao in the month of September,1995 his undivided 1/5thshare and
Ac.0-04 cents of land came into force and enjoyment of D2 as absolute owner and wife of Kotha Sambasiva Rao by name Kotha Saraswathi was also died intestate and the fact of execution of a will by Kotha Sambasiva Rao was known to each and every one of the village in Sangamjagaralamudi and also to the plaintif and other sons of Butchi Kotaiah Chowdary long back died intestate and their estate devolved upon their legal heirs and all the bothers of Kotha
Satyanarayana left there village long back and plaintif and 4th defendant jointly sold their 2/5th undivided share for valid consideration of Rs.60,000/- to D2 on 9-6-1985 and on receipt of the said amount the plaintif and 4th defendant executed an agreement of sale on 9-6-1985 itself in favour of D2 and the entire sale consideration paid by D2 and after receiving the amount 4th defendant and plaintif delivered their undivided 2/5th share in respect of Item NO.1 of plaint schedule property to D2 since then he is in possession and enjoyment of the said 2/5th share of plaintif and D4 along with share and 4th defendant received consideration along with the plaintif and also on behalf of D3 and
D5 ,therefore the plaintif and D3 to D5 have to execute a registered sale deed for their undivided 2/5thshare in Item NO.1 of the plaint schedule property in favour of D2, plaintif, D3 to D5 have no right, title or possession over the 2/5th share in Item NO.1 of plaint schedule property as they already sold the same to
D2 and they have agreed to execute a regular registered sale deed with the expenses of D2 and that agreement was executed on bill contract basis as the said property is indivisible and for purchasing fresh property with the sale 6 consideration in the presence of the daughter of Kotha Narasimha Rao by name
Jyo stnasri and Ellanti Kiranmayi i.e., D1 and D9 and scribe Raja Rao and plaintif, D3 to D5 agreed to execute a regular registered sale deed with the expenses of D2 as and when requires and after execution of the said sale agreement second defendant demanded the plaintif and D3 to D5 for execution of regular sale deed but they have postponed the same on some pretext or other, by suppressing the said facts the plaintif got issued a legal notice dated 2-2-2013 for partition of the plaint schedule properties with false and untenable allegations for that Kotha Satyanarayana got issued a reply with true and correct facts and D2 also got issued a registered legal notice dated 6-3-2013 to the plaintif and D3 to d5 by demanding to execute a sale deed in respect of their 2/5th share in Item No.1 of the plaint schedule property, even after receiving the notice they kept quite ,subsequently by suppressing the above said facts the plaintif filed the suit for partition of the plaint schedule properties with false and incorrect statements and unfortunately D2 died on 7- 11-2013 intestate leaving behind D6,h is wife,D7 to D10 his children as his only legal heir and his estate devolved upon them including the plaint schedule property ,therefore after the death of D2 , D6 to D10 got issued a registered legal notice through their advocate to the plaintif and D3 to D5 on 5-2-2015 by demanding for execution of regular sale deed with their expenses regarding the above said 2/5th share in item No.1 of the plaint schedule property ,the plaintif and D3 to D5 received notice and kept quite even after the death of D2 , D6 toD10 are ready and willing to perform their part of contract and demanded the plaintif and D3 to D5 to perform their contract, but they have refused ,hence D6 along with D7 and D10 herein filed OS.NO.108/2015 on the file of I
Addl.Junior Civil Judge, Tenali against the plaintif and D3 to D5 for specific performance of contract of sale and D8 and D9 were herein shown as proforma parties in the said suit as they were not available at the time of filing of the suit , the plaintif suppressed the real facts and got filed the suit to gain wrongfully and plaintif has no manner of right to claim any share in the plaint schedule 7 property as such the defendants 3 to 5 also have no right to claim share in the plaint schedule properties , plaintif has no right to seek any share in Item No.1 of the plaint schedule property as she already sold away her share along with
D3 to D5 to D2 and delivered possession of the same to him and there is no cause of action for filing the suit ,hence the suit is liable to be dismissed.
5.Basing on the pleadings the following issues have been settled for trial:
1.Whether the plaint schedule properties are liable for partition as prayed for?
2. To what relief?
6.On 10-1-2020, on perusing the record the following additional issues have been framed :
1. Whether Kotha Sambasiva Rao executed a Will dated 10-8-1995 by bequeathing his undivided 1/5th share and Ac.0-04 cents of land in D.No.193/4 situated in Sangamjagarlamudi Village in favour of his brother Kotha
Satyanarayana . If so whether that will is true,valid and binding on the plaintif?
2. Whether the plaintif and D4 jointly sod away their 2/5th share in Item NO.1 of plaint schedule property to D2on 9-6-1985 as contended by defendants?
3. Whether the plaintif has no right to seek share in Item No.1 of plaint schedule property as contested by the defendants?
4. Whether the plaintif is entitled for future profits in respect of 1/4th share to the plaint schedule property from the date of the suit till date of possession as prayed for?
7.In order to substantiate the case of the plaintif, the plaintif herself examined as PW1 and got examined the 3rd defendant as PW2 and
Exs.A1 to A7 got marked. ON behalf of the defendants, D6 examined as DW1 and got examined one Paladugu Lakshmi Narasaiah as DW2 and Ex.B1 got marked.
8.In this case D1,D3 to D5, D9 and D10 were set exaprte. D2 died and contest parties are D6 to D8.
9.Heard the arguments of both counsels.
8
10.ADDITIONAL ISSUE NO.1: The case of the plaintif is one
Kotha Butchi Kotaiah Chowdary having five sons by name Kotha Narasimha Rao,
Kotha Radha Krishna Murthy, Kotha Sambasiva Rao ,second defendant byname
Kotha Satyanarayana Vara Prasada Rao and Kotha Dasaradha Ramaiah and one KanakavalliTayaru is wife of Kotha Butchi Kotaiah Chowdary , first defendant is the sole legal heir and daughter of late Kotha Narasimha Rao , plaintif is the wife of Late Kotha Radha Krishna Murthy and Kotha Sambasiva Rao and his wife
Saraswathi died intestae and issue less, third defendant is the wife and defendants 4 and 5 are the son and daughter of Late Kotha Dasaradha Ramaiah , 6th defendant is the wife, D7 and D8 are the son and D9 and D10 are the daughters of deceased second defendant and the plaint schedule properties are ancestral, coparcener and joint family properties of late Kotha Butchi Kotaiah
Chowdary and Item No.1 of the plaint schedule properties is a tiled house and
Item No.2 of the plaint schedule property is brick walled thatched house located in the heart of Sangamjagarlamudi and after the death of Kotha Butchi Kotaiah
Chowdary andhis wife Kanakavalli Tayyaru all their properties devolved upon the sons of Kotha Butchi Kotaiah Chowdary and they have partitioned their joint family landed properties long back by keeping the plaint schedule properties for their joint family and second defendant worked as Munsif in
Sangamjagaralamudi till 1985 , subsequently he elected as Surpanch of
Sangamjagaralamudi Panchayat and all the brothers of second defendant lived in some other places on their business and job purpose and used to come to their native place and used to reside in the plaint schedule property occasionally on festivals and functions for that purpsoe the plaint schedule property was kept for the use of joint family , the second defendant who is the
Ex-Munsif , Ex-Surpanch look after the plaint schedule propety on behalf of the entire joint family ,the other co-brothers of the secnod defendant were died and the eldest brother Kotha Narasimha Rao and his wife died intestate leaving behind the first defendant as their sole legal heir , Kotha Sambasiva Rao and his wife Saraswathi died intestate and issue less, hence undivided share of Kotha 9 Sambasiva Rao is devolved upon remaining brothers ,the husband of the plaintif by name Kotha Radha Krishna Murthy died intestate leaving behind the plaintif who is the wife as his sole legal heir , the said Kotha Dasaradha
Ramaiah died intestate leaving behind D3 to D5 as his legal heirs,therefore plaintif, D1,D2 and D3 to D5 have got 1/4th undivided share each in plaint schedule property which is ancestral, coparcener and joint family property and plaintif is in joint possession of the plaint schedule properties along with the defendants, the second defendant managing the plaint schedule properties on behalf of the plaintif and other defendants, therefore plaintif requested the defendants to cooperate for partition of the plaint schedule properties into four equal shares and allot one such share to her, and the defendants admitting her share but postponed the same on some pretext or other and on 2-2-2013 plaintif got issued a legal notice through her advocate to defendant by calling upno them to cooperate for partition of the plaint schedule property within 15 days from the date of receipt of her notice, D2 to D5 received notices but D3 to
D5 kept quite and notice of D1 returned with endorsement left without instructions D2 issued reply notice through his counsel with false averments by mentioning that all the brothers of second defendant left the schedule properties long back and item No.1 of plaint schedule property is old tiled house and long back collapsed ,but second defendant spent more than Rs.2,00,000/- and renovated the tiled house and Item No.2 of the plaint schedule property is a vacant site with thatched house and it is also very old, therefore the said thatched house and cattle shed were removed long back and plaintif and 4th defendant jointly sold away their 2/5th share in Item NO.1 of the plaint schedule property to the second defendant for valid consideration of
Rs.60,000/- on 9-6-1985 in the presence of D1 and another and on receipt of entire sale consideration of Rs.60,000/- from D2, plaintif and 4th defendant executed an agreement of sale for their 2/5th undivided share in Item No.1 of the plaint schedule property since then D2 is in possession and enjoyment of the said 2/5th undivided share along with his share , hence plaintif, D2 to D5 10 have no right or title or possession over their undivided 2/5th share in Item NO.1 of the plaint schedule property as they already sold the same to the second defendant and Kotha Sambasiva Rao during his lifetime executed a Will on 10-8- 1995 in a sound and disposing state of mind by bequeathing his undivided 1/5th share in Item No.1 of the plaint schedule property and also Ac.0-04 cents of land situated in D.No.193/4 in Sangamjagaralamudi Village in favour of D2 who is the last testament of Kotha Sambasiva Rao and that will was endorsed and Kotha Sambasiva Rao died in the month of September, 1995 and after his death second defendant became absolute owner of the share of Kotha
Sambasiva Rao and came into possession of the same and that fact was known to plaintif,defendants and their villagers and relatives,but plaintif suppressed the real facts and got issued legal notices, but the averments of the said reply notice are false and the plaintif did not sell her undivided share along with the 4th defendant in the plaint schedule property to the second defendant on 9-6-1985 or any other date and that sale agreement is fabricated and forged document and Kotha Sambasiva Rao also did not execute any will on 10-8- 1995 or any other date in favour of second defendant and Kotha Sambasiva
Rao died intestate and after issuing the legal notice the defendants are not cooperating for partition of the plaint schedule properties , the plaintif under fear of the death executed a registered will dated 8-3-2013 in favour of Kothuri
Sirisha who is the daughter of her brother by name Mallipeddi Sri Rama Murthy by bequeathing her undivided share in the plaint schedule property in a sound and disposing state of mind,second defendant leased out Item Nos.1 and 2 of the plaint schedule properties to others and getting a rent of Rs.3,000/- per month,but he is not rendering the accounts to the plaintif instead of mediation through personally and mediators and legal notices ,the defendants did not come forward for partition of the plaint schedule property,hence the suit is filed for partition of the plaint schedule property into four equal shares and allot one such share to the plaintif by delivering possession and for future profits towards rent in respect of 1/4th share of the plaint schedule proprieties from the date of 11 suit till the date of possession and for costs of the suit.
11. D6 filed written statement which was adopted by D7,D8 and
D10 but on verifying the record on 11-4-2016 , D10 was set exparte ,subsequently she did not file any petition for setting aside the exparte order passed against her ,therefore might be by mistake it was mentioned in the adoption memo as it was filed by D7,D8 and D10 instead of D7 and D8.
Therefore, as the exparte order was not aside against D10, adoption memo of
D10 cannot be considered.
12.The contest of D6 is she is admitting the relation ship between the parties and according to her during the lifetime of Kotha Sambasiva Rao he executed a will dated 10-8-1985 in a sound and disposing state of mind by bequeathing his undivided 1/5th share in Item NO.1 plaint schedule property and also Ac.0-04 cents land in D.No.194/4 situated in Sangamjagaralamudi
Village in favour of D2 and that is his last and final testament and after the demise of Kotha Butchi Kotaiah Chowdary and his wife Kanakavalli Tayyaru , the estate of Butchi Kotaiah Chowdary devolved upon their five sons equally and the will executed by Kotha Sambasiva Rao was properly attested, duly executed and endorsed and as per the recitals of the will after the death of Kotha
Sambasiva Rao in the month of September,1995 his undivided 1/5thshare and
Ac.0-04 cents of land came into force and enjoyment of D2 as absolute owner and wife of Kotha Sambasiva Rao by name Kotha Saraswathi was also died intestate and the fact of execution of a will by Kotha Sambasiva Rao was known to each and every one of the village in Sangamjagaralamudi and also to the plaintif and other sons of Butchi Kotaiah Chowdary long back died intestate and their estate devolved upon their legal heirs and all the bothers of Kotha
Satyanarayana left there village long back and plaintif and 4th defendant jointly sold their 2/5th undivided share for valid consideration of Rs.60,000/- to D2 on 9-6-1985 and on receipt of the said amount the plaintif and 4th defendant executed an agreement of sale on 9-6-1985 itself in favour of D2 and the entire sale consideration paid by D2 and after receiving the amount 4th defendant 12 and plaintif delivered their undivided 2/5th share in respect of Item NO.1 of plaint schedule property to D2 since then he is in possession and enjoyment of the said 2/5th share of plaintif and D4 along with share and 4th defendant received consideration along with the plaintif and also on behalf of D3 and
D5 ,therefore the plaintif and D3 to D5 have to execute a registered sale deed for their undivided 2/5thshare in Item NO.1 of the plaint schedule property in favour of D2, plaintif, D3 to D5 have no right, title or possession over the 2/5th share in Item NO.1 of plaint schedule property as they already sold the same to
D2 and they have agreed to execute a regular registered sale deed with the expenses of D2 and that agreement was executed on bill contract basis as the said property is indivisible and for purchasing fresh property with the sale consideration in the presence of the daughter of Kotha Narasimha Rao by name
Jyo stnasri and Ellanti Kiranmayi i.e., D1 and D9 and scribe Raja Rao and plaintif, D3 to D5 agreed to execute a regular registered sale deed with the expenses of D2 as and when requires and after execution of the said sale agreement second defendant demanded the plaintif and D3 to D5 for execution of regular sale deed but they have postponed the same on some pretext or other, by suppressing the said facts the plaintif got issued a legal notice dated 2-2-2013 for partition of the plaint schedule properties with false and untenable allegations for that Kotha Satyanarayana got issued a reply with true and correct facts and D2 also got issued a registered legal notice dated 6-3-2013 to the plaintif and D3 to d5 by demanding to execute a sale deed in respect of their 2/5th share in Item No.1 of the plaint schedule property, even after receiving the notice they kept quite ,subsequently by suppressing the above said facts the plaintif filed the suit for partition of the plaint schedule properties with false and incorrect statements and unfortunately D2 died on 7- 11-2013 intestate leaving behind D6,h is wife,D7 to D10 his children as his only legal heir and his estate devolved upon them including the plaint schedule property ,therefore after the death of D2 , D6 to D10 got issued a registered legal notice through their advocate to the plaintif and D3 to D5 on 5-2-2015 by 13 demanding for execution of regular sale deed with their expenses regarding the above said 2/5th share in item No.1 of the plaint schedule property ,the plaintif and D3 to D5 received notice and kept quite even after the death of D2 , D6 toD10 are ready and willing to perform their part of contract and demanded the plaintif and D3 to D5 to perform their contract, but they have refused ,hence D6 along with D7 and D10 herein filed OS.NO.108/2015 on the file of I
Addl.Junior Civil Judge, Tenali against the plaintif and D3 to D5 for specific performance of contract of sale and D8 and D9 were herein shown as proforma parties in the said suit as they were not available at the time of filing of the suit , the plaintif suppressed the real facts and got filed the suit to gain wrongfully and plaintif has no manner of right to claim any share in the plaint schedule property as such the defendants 3 to 5 also have no right to claim share in the plaint schedule properties , plaintif has no right to seek any share in Item No.1 of the plaint schedule property as she already sold away her share along with
D3 to D5 to D2 and delivered possession of the same to him and there is no cause of action for filing the suit ,hence the suit is liable to be dismissed.
13.As discussed above in order to substantiate the case of the plaintif she herself examined as PW1 and got examined D3 as PW2.
14.On behalf of the defendants, D6 examined as DW1 and got examined DW2.
15.The learned counsel for the plaintif argued that the brother of
D2 by name Kotha Sambasiva Rao never executed any will in favour of the second defendant and that will dated 10-8-1995 is fabricated and forged document, therefore the suit schedule properties shall be partitioned into four equal shares and allot one such share to the plaintif.
16.On the other hand the learned counsel for D6 to D8 argued that the brother of D2 by name Kotha Sambasiva Rao died issue less and his wife Saraswathi also died and the said Kotha Sambasiva Rao executed Ex.B1 will in respect of his 1/5th share undivided share in Item NO.1 of the plaint schedule property and another Ac.0-04 cents of land situated in 14 Sangamjagaralamudi Village,therefore the plaintif is not entitled for 1/4th share in the suit schedule property.
17.For that the evidence of PW1 when she filed chief examination affidavit is the alleged will dated 10-8-1995 is a forged and fabricated document and the said Kotha Sambasiva Rao never executed any will in respect of his 1/5th share in Item NO.1 of the suit schedule property along with some other property.
18.In this case the relationship between the parties is an admitted one as one Kotha Butchi Kotaiah Chowdary and Kankavalli Tayyaru are theparents of Kotha Narasimha Rao , Kotha Radha Krishna Muthy, Kotha
Samabasiva Rao, second defendant and Kotha Dasaradha Ramaiah and according to the plaintif, the plaint schedule properties are the ancestral , coparcener and joint family properties. The same is not denying by the defendants at any where i.e., either in the written statement or in the evidence of D6. Therefore Item NO.1 and 2 of the plaint scheudle properties are the ancestral ,coparcener and joint family properties of late Kotha Butchi Kotaiah
Chowdary.
19.It is also not denied by the defendants that the said Kotha
Butchi Kotaiah Chowdary and his wife Kankavalli Tayaru were died intestate ,therefore Kotha Butchi Kotaiah Chowdary who is the father of Kotha Narasimha
Rao ,Kotha Radha Krishna Murthy, Kotha Sambasiva Rao ,D2 and Kotha
Dasaradha Ramaiah died intestate without executing any document in respect of Item Nos. 1 and 2 of the suit scheudle property and other properties.
20.It is the case of the plaintif that after the death of Kotha
Butchi Kotaiah Chowdary and his wife Kanakavalli Tayaru their properties devolved upon the sons of Kotha Butchi Kotaiah Chowdary equally. As discussed above the defendants are also not denying the same. It is not the contest of the defendants that Item Nos. 1 and 2 of the suit schedule properties were also equally partitioned by the sons of Kotha Butchi Kotaiah Chowdary ,therefore it is an admitted fact that after the death of Kotha Butchi Kotaiah Chowdary and his 15 wife Kanakavalli Tayaru all their properties except the plaint schedule Item Nos.
1 and 2 were partitioned by the sons of Kotha Butchi Kotaiah Chowdary equally by leaving the paint schedule properties for their joint use and occupation whenever the sons of Kotha Butchi Kotaiah Chowdary came to
Sangamjagaralamudi to attend functions occasionally to that efect there is no dispute as it is the contest of D6 that Kotha Sambasiva Rao executed a Will i.e.,
Ex.B1 in favour of D2 by bequeathing his undivided 1/5thshare in Item No.1 of the suit schedule property along with four cents i.e., another property in the name of D2 that itself discloses that the plaint schedule properties were not partitioned between the sons of Kotha Butchi Kotaiah Chowdary.
21.Coming to the alleged will executed by Kotha Sambasiva Rao through D6 who was examined as DW1 the said will dated 10-8-1995 was marked as Ex.B1 and in order to prove the execution of Ex.B1 will the 6th defendant got examined DW2 who is one of the attestor of Ex.B1 will for that the learned counsel for the plaintif filed written arguments by mentioning that
DW1 admitted in her cross-examination that she do not know when and where
Ex.B1 was executed , but prior to one year of the death of D2 he handed over
Ex.B1 to D6, therefore,the alleged will did not see the light of the day till 2019 and the alleged will was not filed along with the chief examination affidavit of
DW1 and it was filed along with IA.NO.387/2019 and in order to prove the will
D6 got examined DW2, but he clearly admitted in his cross-examination that he do not know the age of Kotha Sambasiva Rao by the date of his death and in the year 1995 Ex.B1 was executed and he was called by Kotha Sambasiva Rao to his house at Sangajagaralamudi Village and DW2 and one Seshagiri Rao were only present at the time of execution of Ex.B1 and the said Seshagiri Rao putting his signature when DW2 entered into that place and subsequently
DW2 signed n Ex.B1 after they have signed on the same Kotha Sambasiva Rao put his signature on Ex.B1,therefore it clearly discloses that Ex.B1 was created one and the mandatory provision laid down u/s.68 of Indian Evidence Act not complied and it is not proved that both the attesting witness either attested 16 the will in the presence of each other or the testator had acknowledged his signature in the presence of other witnesses, therefore it is quite unnatural that the attestors put their signature before the attestor put his signature and statutory requirement laid down in Section 68 of Indian Evidence Act is not complied and for that he relied on the decision reported in 2009 (2) ALD 19 (SC) in between Lalitaben Jayanthilal Popat v. Pragnaben Jamnadas kataria and others wherein their lordship held that:
“Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record ,the Court may take aid of the presumptive evidences also.
As per Section 63 (c) of Indian Succession Act will is required to be attested by two or more witnesses and further more although in terms of Section 68 of Indian Evidence Act it is permissible to examine one witness who must testify to prove valid execution and attestation of the will i.e., both the witnesses have signed in the presence of the testator or the testator has either signed in the presence of one or acknowledged his signature before the other”
22.Herein this case the evidence of DW2 shows that one Kotha
Sambasiva Rao during his lifetime executed Ex.B1 will in favour of Kotha
Satyanarayana (D2) in a sound and disposing state of mind by bequeathing
Ac.0-04 cents of land and 1/5thshare in Item NO.1 of the plaint schedule property and the said Kotha Sambaisva Rao got typed the said will and the contents of the will were read over to the attestors i.e., DW2 and K.Seshagiri
Rao by said Sambasiva Rao and in the presence of attestors executant by name
Kotha Sambasiva Rao signed on Ex.b1 ,thereafter K.Seshagiri Rao and DW2 signed as attestors. But during the course of cross-examination of DW2 he 17 stated that he acted as Ward Member in Sangamjagaralamudi in the year 1995 and D2 elected as Surpanch during his tenure in Sangamjagaralamudi ,but he does not belongs to the group of D2 and Kotha Sambasiva Rao and his wife are not having any children and he do not know whether Kotha Sambasiva Rao blessed with a male child and unfortunately the child was died at the age of one year and in the year 1995 Ex.B1 was executed and he was called by Kotha
Sambasiva Rao to his house at Sangamjagaralamudi Village and DW2 and
K.Seshagiri Rao acted as attestors on Ex.B1 and Kotha Sambasiva Rao informed to them that he was bequeathing his property in the name of his younger brother by that time wife of Kotha Sambasiva Rao and D2 were not present and the said K.Seshagiri Rao acted as first attestor and putting his signature when DW2 entered into that place, subsequently DW2 put signature on Ex.B1 and after DW2 and K.Sehsagiri Rao signed as attestors , Kotha
Sambasiva Rao put his signature on Ex.B1. Except that nothing was elicited form the cross-examination of DW2 that after Seshagiri Rao and DW2 signed as attestors Kotha Sambasiva Rao put his signature on Ex.b1, but his entire evidence cannot be brushed aside only on the ground that he said Kotha
Sambasiva Rao put his signature after the attestors put their signatures on
Ex.B1 when PW1 herself admitted in her cross-examination dated 28-2-2019 by stating that as per her knowledge Kotha Sambasiva Rao executed a Will on 10- 8-1995 in favour of D2 in respect of his 1/5th share and the said Kotha
Sambasiva Rao died in the year 1995 after execution of Will and the said Kotha
Sambasiva Rao died issue less and his wife Saraswathi also died , therefore the share of Kotha Sambasiva Rao transferred to deceased d2 under the will in respect of Item NO.1 of the suit schedule property. Therefore the admission on the part of PW1 who is the plaintif in this case clearly discloses that the said
Kotha Sambasiva Rao executed a Will i.e., Ex.b1 in fvour of D2 on 10-8-1995 in respect of his 1/5th share and after execution of the will the said Kotha
Sambasiva Rao was died and the share of Kotha Sambasiva Rao transferred to
D2 under the will in respect of Item NO.1 of the suit schedule property. Therefore 18 by examining one of the attestor of Ex.B1 will and by eliciting in the cross- examination of PW1 it was proved byD6 that Ex.B1 will was executed by Kotha
Sambasiva Rao in respect ofhis 1/5th share in Item No.1 of the suit schedule property along with other Ac.0-04 cents of land in favour of D2 and as per the decision relied by the learned defence counsel reported in 2019(1) ALT 41 SC in between Radhamma and others v. H.N.Muddukrishna and others wherein his lordship held that:
“ Section 30 of the Hindu Succession Act permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property.
The significant fact which was may be noticed is that while the legislature was aware of the strict rule against alienation by way of gift,it only relaxed the rule in favour of the disposition by way of a will of a male Hindu in a Mitakshara coparcenary property.
Therefore , the law insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005,when a male Hindu dies after the commencement of the
Hindu Succession Act, 1956 leaving at the time of his death an interest in Mitakshara Coparcenary property his interest in the in the property will devolve by survivorship upon the surviving members of the coparcenary . An exception is contained in the explanation to Section 30 of the Act making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by Will or any other testamentary disposition, therefore the testator was indeed qualified to execute a will bequeathing his undivided share in the joint family properties by way of Will”.
24.Here in the present case on hand it is not in dispute that the suit schedule Item NO.s 1 and 2 properties were kept as joint family property by partitioning the other properties of Kotha Butchi Kotaiah Chowdary by his children for their stay whenever they visited Sangamjagaralamudi Village.
19 Therefore, Item Nos. 1 and 2 of the suit schedule properties were not partitioned between the sons of Kotha Butchi Kotaiah Chowdary subsequent to the intestate death of Kotha Butchi Kotaiah Chowdary and his wife Kankavalli Tayaru , therefore prior to the death of one of the son of Kotha Butchi Kotaiah Chowdary by name Kotha Sambasiva Rao he executed Ex.B1 will in favour of D2 by bequeathing his undivided 1/5th share in Item NO.1of the suit schedule property along with some other properties and as per the above discussion PW1 also admitted in her cross-examination that the said Kotha Sambaiva Rao executed Ex.B1 will in favour of D2 by bequeathing his 1/5th share in Item
NO.1 of the suit schedule property.
25.As rightly argued by the learned counsel for the defendants 6 to 8 ,the admission on the part of the plaintif shall be considered by the court and as per the decision reported in 2012 (1) ALD 766 in between Devarapalli
Malla Reddy (Died) and others v. Gadiyam Hanumayamma and others wherein his lordship held that:
“ There cannot be a better proof than the admission of a fact in issue by the defendant in a suit “.
26.In this case the plaintif admitting the contest of D6 about execution of Will by Kotha Sambasiva Rao by bequeathing his 1/5th undivided share in Item No.1 of the suit schedule property in favour of D2 , therefore the admission on the part of the plaintif is better proof than the evidence adduced by the defendant.
27.As per Section 68 of Indian Evidence Act the will shall be proved by examining at least one of the attesting witness there might be some minor discrepancies in the evidence of DW2 about putting signature before the signature of the executant of the Will. But, when once the plaintif is admitting about execution of Will by Kotha Sambasiva Rao and the plaintif even though taken a plea in the plaint that the avermrnets of the notice I.e, reply notice issued by D6 dated 26-2-2013 are false and Ex.B1 will is fabricated and forged document she did not take any steps for onward sending Ex.B1 will for 20 handwriting expert opinion for comparing the signatures of Kotha Sambasiva
Rao and moreover in her cross-examination she clearly admitted that Kotha
Sambaiva Rao executed a will in favour of D2 and admitted the contests of
Ex.B1 Will. Therefore, when D6 examined herself as DW1 and got examined
DW2 i.e.,one of the attestor of Exb1 will for proving Ex.B1 will it can be safely concluded by the Court that Ex.B1 will was executed by Kotha Sambasiva Rao on 10-8-1995 by bequeathing his 1/5th undivided share in Item NO.1 of the suit schedule property along with Ac.0-04 cents of land in favour of D2. Might be
DW1 stated that she do not know when and where Ex.B1 was executed. But,as discussed above the admission on the part of the plaintif is the better proof in respect of execution of the will,therefore even though the plaintif is having knowledge about execution of the will i.e., Ex.B1 by late Kotha Sambasiva Rao she suppressed the same in the plaint. Therefore by examining DW2 and by eliciting from the cross-examination of PW1, D6 proved that the said Kotha
Sambasiva Rao who is the brother of D2 executed a Will dated 10-8-1995 by bequeathing his undivided 1/5th share and Ac.0-04 cents of land in D.No.193/1 situated in Sangamjagaralamudi Village in favour of D2, therefore when once
Item Nos. 1 and 2 of the suit schedule properties were not partitioned by the son of Kotha Butchi Kotaiah Chowdary as per Section 30 of Hindu Succession Act the said Kotha Sambasiva Rao is entitled to execute a Will in respect of his undivided share in the joint family property during his lifetime,hence Ex.B1 will is true, valid and binding on the plaintif. Accordingly, Additional Issue No.1is answered.
28.ADDITIONAL ISSUE NO.2: It is the contest of the defendants that the plaintif and D4 jointly sold away their 2/5thshare in item NO.1 of the plaint schedule property of D2 by executing a sale agreement on 9-6-1985 by receiving sale consideration of Rs.60,000/- and delivered the possession of their 2/5th undivided share in Item No.1 of the suit schedule property with an assurance that they will execute a registered sale deed in favour of D2 as and when required, but,during the lifetime of D2 , plaintif and D3 toD5 not 21 executed a regular registered sale deed in favour of D2, therefore subsequent to the death of D2, D6 and her children demanded plaintif and D3 to D5 to execute a regular registered sale deed for undivided 2/5th share of plaintif and
D4 over Item No.1 of the suit schedule property ,but they paid deaf ear and did not execute a registered sale deed inspite of executing a registered sale deed in favour of D2 or his legal heirs the plaintif got issued a legal notice i.e., Ex.A1 by demanding the defendants to come for partition of the suit schedule properties, therefore on 5-2-2015 D6 along with her children got issued a registered legal notice to the plaintif and D3 to D5 for execution of regular registered sale deed in respect of their 2/5thshare in Item NO.1 of the plaint schedule property, but they have received the notice and kept quiet without executing any regular registered sale deed in favour of D6 and her children, therefore D6 along with
D7 and D10 herein filed OS.NO.108/2015 on the file of I Addl.Junior Civil Judge,
Tenali against the present plaintif and D3 to D5 for specific performance of the contract of sale and the said suit is pending . But, the same was denying by plaintif by stating that she never executed any sale agreement in favour of D2 along with D4. In this case in order to prove the contest of D6 about execution of agreement of sale by plaintif and D4,she did not file the said sale agreement dated9-6-1985 nor filed office copy of the legal notice dated 5-2-2015 before this Court for that the learned counsel for the defendant argued that in the cross-examination of PW1 she admitted that plaintif and 4th defendant sold away 2/5th share in Item NO.1 of the suit schedule property to D2 on 9-6-1985 for consideration of Rs.60,000/- and handedover possession to D2 that itself discloses that plaintif and 4th defendant executed an agreement of sale in favour of D2 by selling away their 2/5th share in item No.1 of the suit schedule property, therefore, admitted facts need not be proved.
29.For that he relied on the decision reported in 2018(6) ALT 566 in between Andhra Pradesh Industrial Infrastructure Corporation Ltd., rep.by its
Law Officer, Hyderabad , and another v. M/s.Rama Tubes Co., rep.by its Sri
Maniklal Gulab Rai, Secunderabad and others wherein his lordship held that:
22 “ The Court shall consider the admissions in the written statement and in the oral evidence.” and he relied on the decision reported in 2015(1) ALT 42 in between
K.Chengalarya Chetty (died) per L.Rs v. Gomatheeswari wherein his lordship held that:
“ The evidence Act places admission in the province of relevance, presumably on the ground that they being declarations against the interest of the person making them,they are in all probability true.
Just like any other piece of evidence , admissions can be admitted in evidence for drawing an inference of truth.”
He further relied on the decision reported in 2019 (2) ALT 77 (TS &
AP) in between Seeram Tirupathamma and others v. Nekkanti Nageswara Rao and others wherein his lordship held that:
“ The admissions are the best form of proof on which the plaintif can rely to successfully contend that exhibit A1 is true, valid and binding on the defendants”.
30.By relying on the above decisions the learned counsel for the defendants argued that the admission on the part of the plaintif clearly shows that herself and 4th defendant sold away their 2/5thshare in Item NO.1 of the suit schedule property to D2 on 9-6-1985 for valid consideration of Rs.60,000/- and handed over possession to D2, therefore the plaintif is not entitled for any share in Item No.1 of the suit schedule property.
31.On perusing the record it discloses that a suit for specific performance of contract under the alleged sale agreement dated 9-6-1985 was filed before the I Addl.Junior Civil Judge Court, Tenali in OS.NO.108/2015 and the same is pending. Therefore this court cannot decide that issue in this case whether that sale agreement is true, valid and binding on the present plaintif and d3 toD5 ,unless the registered sale deed executed by the plaintif and D4 on behalf of D3 and D5 also in respect of their undivided 2/5th share in Item
NO.1 of the plaint schedule property the title cannot be transferred in the name 23 of D2. Therefore it is the point to be determined in OS.NO.108/2015 whether
D6 to D10 are entitled for specific performance of the contract in respect of 2/5th undivided share of plaintif and D3 to D5 in item No.1 of the suit schedule property or not and that question cannot be decided in this case in view of the pendency of OS.No.108/2015. Therefore, in this case this Court cannot decide whether the plaintif and D4 jointly sold away their undivided 2/5th share in Item No.1 of the plaint schedule property to D2 on 9-6-1985 even if PW1 admitted the same in the cross-examination. Accordingly, Additional
Issue NO.2 is answered.
32.ADDITIONAL ISSUE NO.3: In view of the discussion in
Additional issue NO.2,this Court cannot decide whether the plaintif sold away
her 2/5th undivided share along with D4 in Item No.1 of the plaint schedule property to D2 on 9-6-1985 , but the evidence on record and the pleadings of both the parties clearly discloses that the plaintif is none other than the wife of the second son of Kotha Butchi Kotaiah Chowdary by name Kotha Radha
Krishna Murthy and except the plaintif there are no other legal heirs to late
Kotha Radhakrishna Murthy who is the second son of Kotha Butchi Kotaiah
Chowdary. When, Kotha Sambasiva Rao is having 1/5th share in Item NO.1 of the suit schedule property being the legal heir of Kotha Radha Krishna Murhty who is the second son of kotha Butchi Kotaiah Chowdary, the plaintif is also entitled for 1/5th share in Item NO.1 of the suit schedule properties and unless she is having share in Item No.1 of plaint schedule property she cannot sell away her 1/5th undivided share to D2 as alleged by defendants and it is an admitted fact that Item Nos. 1 and 2 of the suit schedule proprieties were not partitioned after the intestate death of Kotha Butchi Kotaiah Chowdary between his sons therefore the plaintif is having every right to seek share in Item NO.1 of the plaint schedule property . Accordingly, Additional Issue No.3 is answered against the defendants and in favour of the plaintif.
33.ISSUE NO.1 : As per the discussion in Additional Issue Nos. 1 to 3, the suit schedule properties are the ancestral, coparcener and joint family 24 properties of Kotha Butchi Kotaiah Chowdary and subsequent to the death of
Kotha Butchi Kotaiah Chowdary andhis wfie Kankavalli Tayaru the properties of
Kotha Butchi Kotaiah Chowdary and Kankavalli Tayaru , except the plaint schedule properties were equally partitioned by their sons by leaving item nos.
1and 2 of the suit schedule properties jointly for the purpose of staying whenever the children of Kotha Butchi Kotaiah Chowdary came to
Sangamjagaralamudi Village. Therefore Item Nos. 1 and 2 of the suit schedule properties were not partitioned between the sons of Kotha Butchi Kotaiah
Chowdary. As far as the evidence of PW2 is concerned as rightly argued by the learned counsel for the defendants when D3 was set exparte without filing any petition for setting aside the exparte order passed against him or without filing any petition by seeking permission of the court to give evidence as a witness on behalf of the plaintif,he filed his chief examination affidavit by sailing with the plaintif. Therefore, as PW2 did not follow the procedure at the time of filing of the evidence, his evidence cannot be considered. But, the other evidence available before this Court and record clearly discloses that Kotha Butchi
Kotaiah Chowdary and his wife Kanakavalli Tayaru were died intestate in respect of their properties and subsequent to their death the children of Kotha
Butchi Kotaiah Chowdary by leaving Item Nos. 1 and 2 of the suit schedule properties jointly, partitioned other properties. Therefore Item Nos. 1 and 2 of the suit schedule properties were left for partition .but, as discussed above during the lifetime of one of the son of Kotha Butchi Kotiah Chowdary by name
Kotha Sambasiva Rao he executed a Will in respect of his 1/5th undivided share in Item No.1 of the suit schedule property. Therefore Item NO.1 of the plaint schedule property shall be partitioned into five equal shares as far as Item No.2 of the plaint schedule properties concerned prior to the death of Kotha
Sambasvia Rao there was no written document in respect of Item NO.2 of the suit schedule property. Therefore, the plaintif is entitled for 1/5thshare in Item
NO.1 of the suit schedule property and 1/4thshare in Item No.2 of the suit schedule property. , as the said Kotha Sambasiva Rao and his wife Saraswathi 25 died issue less. Accordingly, Issue No.1 is answered.
34.ADDITIONAL ISSUE NO.4: As per the evidence of PW1 Item
No. 1 of the plaint schedule property is a thatched house and Item NO.2 of the plaint schedule property is a brick wall thatched house located in the heart of
Sangamjagaralamudi Village and second defendant leased out Item Nos. 1 and 2 of the plaint schedule properties to others and getting rent of Rs.3,000/- per month,but he did not render the accounts to the plaintif,but except examining the plaintif herself as PW1 no other independent evidence i.e.,oral or documentary evidence adduced before this court to show that Item nos. 1 and 2 of the plaint schedule properties were leased out to others and second defendant got the rent of Rs.3000/- per month on Item Nos. 1 and 2 of the suit schedule properties and the chief examination affidavit of PW2 who is the 3rd defendant in the suit also not discloses about getting rent of Rs.3,000/- per month on Item Nos. 1 and 2 of the suit schedule property byD2 or his legal heirs. Therefore, except the oral evidence of the plaintif there is no other oral or documentary evidence to show that during the lifetime of D2 and subsequent tot he death of D2 , D6 toD10 are getting an mount of Rs.3,000/- per month on Item Nos. 1 and 2 of the suit schedule property and . No suggestion put to D6 that during the lifetime of D2 and subsequent to the death of D2, D6 to D10 are getting an income of Rs.3,000/- per month on Item Nos. 1 and 2 of the suit schedule properties . Therefore, the plaintif failed to prove about income deriving from item Nos. 1 an 2 of the suit schedule property.
Therefore she is not entitled for any mesne profits on Item nos.1 and 2 of the suit schedule properties. Accordingly, Additional Issue No.4 is answered.
35.ISSUE NO.2: in the result,the suit is preliminary decreed in favour of the plaintif and against the defendants with costs by partitioning
Item NO.1 of the suit schedule property into FIVE Equal shares and allot one such share to the plaintif and one such share to D1 and one such share of D2 along with 1/5th undivided share of Kotha Sambasiva Rao to D6 to D10 being the legal heirs of D2 and one such share to D3 to D5 who are the legal heirs of 26 Kotha Dasaradha Ramaiah and Item NO.2 of the suit schedule property is partitioned into FOUR equal shares and allot one such share to the plaintif and one such share tod1 and one such share to D6 to D10 being the legal heirs of
D2 and one such share to D3 to D5 being the legal heirs of Kotha Dasaradha
Ramaiah , as far as mesne profits are concerned the plaintif is not entitled for any mesne profits on the suit schedule properties and for division of Item Nos.
1and 2 properties and for separate possession an application shall be filed
Under Order 20 Rule 18 of CPC.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open court, this the 16th day of April, 2020.
ADDL. SENIOR CIVIL JUDGE,
TENALI.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS: FOR DEFENDANTS PW1: Kotha RadhammaDW1: Kotha Lakshmi Sujatha PW2: Kotha Lakshmi AnnapurnaDW2: Paladugu Lakshmi Narasaiah
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1: Office copy of the legal notice got issued by the plaintif through her advocate to defendants 1 to 5 dated 2-2-2013.
Ex.A2: Returned Notice of the 1st defendant dated 5-2-2013
Ex.A3: Postal Acknowledgment of the 2nd defendant dated 4-2-2013
Ex.A4: Postal Acknowledgment of the 3rd defendant
Ex.A5: Postal Acknowledgment of the 4th defendant dated 6-2-2013
Ex.A6: Postal Acknowledgment of the 5th defendant dated 5-2-2013
Ex.A7: Reply Notice got issued by the 2nd defendant through his advocate to the advocate of her dated 26-2-2013.
FOR DEFENDANTS:
Ex.B1: Will dated 10-8-1995 executed by Kotha Sambasiva Rao in favour of
Kotha Satyanarayana .(Notarized)
ADDL. SENIOR CIVIL JUDGE,
TENALI.
27
IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE: TENALI
Present
SMT K.NAGAMANI
Addl. Senior Civil Judge, Tenali
Thursday, the 16th day of April, 2020
ORIGINAL SUIT No.244/2013
Between: Kotha Radhamma W/o.Late Radha Krishna Murthy, Hindu, Aged 77 years, Widow, Properties, R/o.Jagarlamudi, Now R/o.Door No.75-6-39, Manasa Hospital Road, Prakash Nagar, Rajahmundry. .. Plaintif
And
1. Tripuraneni Jyothsna Sri W/o.Ravi Kumar, Hindu, Aged 53 years, House-wife, Rep.by her General Power of Attorney, Kotha Satyanarayana Vara Prasada Rao S/o.Late Butchi Kotaiah Chowdary, R/o.Sangamjagarlamudi Tenali Mandal, Guntur District.
2. Kotha Satyanarayana Vara Prasada Rao (Died)
3. Kotha Lakshmi Annapurna W/o.Late Dasaradha Ramaiah, Hindu, Aged 73 years, Widow, R/o.Sangamjagarlamudi, Tenali Mandal, Guntur District.
4.Kotha Srinivasa Rao S/o.Late Dasaradha Ramaiah,Hindu, Aged 50 years, Business, R/o.Door No.1-4-752, LVS Nagar, Gosala Road, Bodhan Village, Bodhan Mandal, Nizambad District.
5. Kotha Sri Devi W/o.Movva Srinivasa Rao, Hindu, Aged 46 years, House-wife R/o.Moparru Village, Amarthalur Mandal, Guntur District.
6. Kotha Lakshmi Sujatha W/o.Late Kotha Satyanarayana Vara Prasada Rao, Hindu, Aged 72 years, R/o.Venkata Sai Enclave ,Over Bridge Down, Chenchupet, Tenali.
7. Kotha Butchi Koteswara Rao S/o.Late Kotha Satyanarayana Vara Prasada Rao Hindu, Aged 55 years, Business, R/o.Venkata Sai Enclave, Over Brdige Down, Chenchupet, Tenali.
8. Kotha Sridhar S/o.Late Kotha Satyanarayana Vara Prasada Rao, Hindu, Aged 51 years, Business, R/o.Venkata Sai Enclave, Over Bridge Down, Chenchupet, Tenali.
9. Ellinti Kiranmayi W/o.Late Madhav,Hindu, Aged 53 years, Widow, R/o.Venkata Sai Enclave, Over Bridge Down, Chenchupeta, Tenali.
10. Paruchuri Padmalatha W/o.Paruchuri Nageswara Rao, Hindu, Aged 49 years House-wife, R/o.Venkata Sai Enclave, Over Bridge Down, Chenchupet, Tenali. [Amended as per orders in IA.NO.3/2015 dated 21-12-2015
...Defendants
The plaintif filed this suit for partition of the plaint schedule properties into four equal shares in good and bad qualities and deliver one such share to plaintif by delivering possession and for future profits towards the rent in 28 respect of the 1/4th share of the plaint schedule properties from the date of suit till the date of possession and for costs.
Plaint presented on : 03-04-2013
Plaint filed on : 21-11-2013
CAUSE OF ACTION:
Cause of action for the suit arose when Kotha Butchi Kotaiah Chowdary and his wife Kanakavalli Tayaru died intestate leaving behind the plaint schedule properties and other properties to their sons late Kotha Narasimha Rao, Kotha
Radha Krishna Murthy, Kotha Sambasiva Rao, defendant and Kotha Dasaradha
Ramaiah as their legal representatives , that the sons of Butchi Kotaiah
Chowdary orally partitioned their landed joint family properties by leaving the plaint schedule properties and their joint family property as the other four sons except the 2nd defendant used to reside some other laces and occasionally used came their native place, that the 1st son Narasimha Rao died intestate leaving behind 1st defendant as his sole legal representative,2nd son died intestate leaving behind his wife i.e., plaintif as legal representative,the 3rd son Kotha
Sambasiva Rao and his wife Saraswathi died issueless and intesate that 5th son
Dasaradha Ramaiah died intesatte leaving behind defendants 3 to 5 as his legal representatives and that on 2-2-2013 plaintif got issued a legal notice through her advocate to the defendants calling upon them to cooperate for partition of the plaint schedule properties into four equal shares and allot one such share and that all the defendants received the said notice except the 1st defendant , that on 26-2-2013 the 2nd defendant got issued a reply notice through his advocate to the advocate of plaintif with false avermetns and the defendants failed to cooperate for partition of the plaint schedule property and at Sangamjagaralamudi Village where the plaint schedule properties are located within the jurisdiction of this Hon’ble Court.
VALUATION :
This being a suit for partition,the value of the Item NO.1 of plaint schedule property as per valuation certificate is Rs.15,00,000/- on which 1/4th 29 plaintif’s share Rs.3,75,000/- on which 3/4th of it is Rs.2,81,250/-; and Value of
Item No.2 of plaint schedule property as per valuation certificate is
Rs.3,61,500/- on which 1/4th plaintif’s share is Rs.90,3756/- on which 3/4th of it is Rs.67,781/- ; Value of the suit for the purpose of jurisdiction is Rs.3,49,031/- on which a fixed Court Fee of Rs.200/- is paid u/s.34(2) of APCF and SV Act.
This suit coming on for final hearing before on 14-02-2020 in the presence of Sri CH.Venkateswara Rao, Advocate for the plaintif and of
Sri T.Srinivasa Rao, Advocate for Defendant Nos. 6 to 8; and D1,D3 to D5 and
D9 were set exparte and D2 was died; and having stood over to this day for consideration, the court doth order and decree as follows:
1. That the suit be and the same is hereby preliminary decreed in favour of the plaintif and against the defendants with costs by partitioning Item
NO.1 of the suit schedule property into FIVE Equal shares and allot one such share to the plaintif and one such share to D1 and one such share of
D2 along with 1/5th undivided share of Kotha Sambasiva Rao to D6 to
D10 being the legal heirs of D2 and one such share to D3 to D5 who are the legal heirs of Kotha Dasaradha Ramaiah and Item NO.2 of the suit schedule property is partitioned into FOUR equal shares and allot one such share to the plaintif and one such share tod1 and one such share to D6 to
D10 being the legal heirs of D2 and one such share to D3 to D5 being the legal heirs of Kotha Dasaradha Ramaiah;
2.That as far as mesne profits are concerned the plaintif is not entitled for any mesne profits on the suit schedule properties; and
3.That for division of Item Nos. 1 and 2 properties and for separate possession an application shall be filed Under Order 20 Rule 18 of
CPC.
4.That the defendants do pay a sum of Rs. 202/- to the plaintif towards institutional costs of the suit and that the defendants do bear their own costs of Rs.NIL. [ CM & FC not filed]
Given under my hand and seal of this Court this the 16th day of April, 2020.
ADDL. SENIOR CIVIL JUDGE,
TENALI.
30
TABLE OF COSTS
S.NoFor PlaintifFor Defendants . 1Vakalat2-00-- 2Court fee 200-00 3Advocate fee----- 4Process ----- Total202-00---
ADDL. SENIOR CIVIL JUDGE,
TENALI 31