APKR0400002220241/68 O.S.No.8 of 2024
Presented on: 02-01-2024 Registered on : 11-01-2024 Decided on: 27-02-2026 Duration: 2 Yrs, 1 months, 25 days
IN THE COURT OF THE VI ADDITIONAL CIVIL JUDGE
(SENIOR DIVISION), VIJAYAWADA.
Present: K.P. Sai Ram,
VI Additional Civil Judge(Senior Division), Vijayawada.
Friday, this the 27th (Twenty Seventh) day of February, 2026.
O.S.No. 08 of 202 4
Between:
Damarla Devi @ Jakka Devi, W/o Damarla Venkata Ratnam, D/o Late Jakka Surya Appa Rao, & Late Jakka Parvathi, Hindu, aged about 44 years, Rep by her GPA Holder i.e., Damarla Venkata Ratnam, S/o Late Rama Swamy, Hindu, aged about 48 years, Both are R/o D.No.5-111/1, Tadigadapa, YSR Tadigadapa Municipality, NTR District. …Plaintiff. And:
1. Jakka Venkata Naga Kumar, S/o Late J. Surya Appa Rao, Hindu, aged about 47 years, C/o Vijaya Durga Iron Electricals & Jute Merchants, Opp Autonagar gate, Patamata, Vijayawada 520 010.
2. Jakka Durga Prasad, S/o Late J. Surya Appa Rao, Hindu, aged about 42 years, R/o D.No.70-2-42/3, Kisan road, Thotavari street, Patamata, Vijayawada 520 010.
3. Jakka Vijaya Kumar @ Vijay, S/o Late J. Surya Appa Rao, Hindu, aged about 41 years, R/o D.No.70-2-42/3, Kisan road, Thotavari street, Patamata, Vijayawada 520 010.
4. The Branch Manager, Union Bank of India (Formerly Andhra Bank), Patamata Branch, Vijayawada 520 010. …Defendants
This suit is coming on 21/01/2026 before me for final hearing in the presence of Sri.
Ch. Jagadeesh, Advocate for plaintiff and of Sri D.P. Ramakrishna, Sri B. Rama Rao,
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Advocates for defendants 1 to 3, Sri A. Yedukondala Rao, Sri Ch. Ramakrishna Prabhu,
Advocates for 4th defendant and upon perusing the entire material papers available on record and having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1.This is a suit for partition.
2.The averments of the plaint, in brief, are as follows:
(a)The plaintiff and defendants 1 to 3 are sister and brothers and they are children of one Jakka Surya Appa Rao and Jakka Parvathi. Jakka Surya Appa Rao died on 23/08/2010. Jakka Parvathi died intestate on 11/05/2021 leaving behind the plaintiff and defendants 1 to 3 as her sole legal heirs to succeed her estate. During her lifetime,
Jakka Parvathi used to do real estate and finance business. Jakka Parvathi purchased item No.1 of suit schedule property which is an extent of 193.38 sq. yards out of 314.38 sq. yards in R.S.No.190/1 of Patamata, Vijayawada from Koneru Omkaram under a registered sale deed bearing document No.2212/2004 on the file of SRO, Patamata.
Thereafter, she got constructed a RCC house consisting of ground, first and second floors with plinth area of 1,167 sq. feet for each floor. Jakka Parvathi purchased Item
No.2 of suit schedule property which is an extent of 165 sq. yards in R.S.No.423/1 of
Poranki Village from S. Radhika under a registered sale deed bearing document
No.3959/2001 dated 05/12/2001 on the file of SRO, Kankipadu. Jakka Parvathi also purchased item No.3 of suit schedule property which is in two bits viz., 103.33 Sq.yards and 96.66 Sq.yards in R.S.No.131/5 of Yanmalakuduru Grampanchayat, Poranki Mandal
APKR0400002220243/68 O.S.No.8 of 2024 under two registered sale deeds bearing document No.800 and 802 of 2018 dated 24/01/2018 from Shaik Aminabi and Shaik Akbar respectively.
(b)Jakka Parvathi has deposited a sum of Rs.3,50,000/- in 4th defendant- bank and also kept a sum of Rs.4,50,000/- in her savings bank account lying with 4th defendant-bank.
(c)The plaintiff who is dumb by birth cannot speak and therefore, her husband used to take care of her in all issues. Therefore, the plaintiff has appointed her husband as GPA holder to conduct the suit proceedings and to give evidence. In view of intestate death of Jakka Parvathi, the plaintiff is having 1/4th share in item Nos.1 to 4 of suit schedule properties. The 1st defendant is proclaiming that he will withdraw the amounts from 4th defendant-bank without the knowledge and consent of plaintiff and with the active assistance of defendants 2 to 4. Therefore, if any such attempt is made by the defendants, they are not binding on the plaintiff. It is further contended that Jakka Parvathi has also deposited a sum of Rs.10,00,000/- in the account of 1st defendant lying with 4th defendant-bank about 8 years back for the use of common family expenses. The plaintiff came to know that the 1st defendant has utilized the said amount without the knowledge and consent of Jakka Parvathi, the plaintiff and defendants 2 and 3. After the death of Jakka Parvathi, the defendants 1 to 3 have been collecting the amounts from the debtors without the knowledge and consent of plaintiff and therefore, they are liable to account for the same. Though the plaintiff has been requesting the defendants 1 to 3 for amicable partition of suit schedule
APKR0400002220244/68 O.S.No.8 of 2024 properties, they have been postponing the same on some pretext or the other and further threatened her husband with dire consequences. The defendants 1 to 3 are trying to alienate items 1 to 3 of suit schedule property and trying to create some sham and nominal documents. The defendants are also trying to withdraw the amounts lying with the 4th defendant-bank without the knowledge and consent of plaintiff. Since the defendants 1 to 3 are acting detrimental to the interests of plaintiff, she thought that it is not advisable to continue as joint family properties and therefore, she got issued a legal notice to the defendants 1 to 3 on 25/10/2023 for amicable partition. Though the defendants have received the said notice, they kept quiet without complying the demand. Hence, the suit.
3.The defendants 1 to 3 filed written statement admitting the relationship with the plaintiff and denied the rest of the allegations levelled in the plaint as ‘false’.
(a)It is contended that the plaintiff is not completely dumb and she can able to speak few words and hear through one ear. The plaintiff is having worldly knowledge and can judge things and that she is literate and knows to read Telugu. The plaintiff’s husband is brain behind this frivolous litigation and he filed the present suit through the plaintiff to harass the defendants. Jakka Parvathi did not die intestate and during her lifetime, she executed a will on 25/09/2019 in a sound and disposing state of mind in respect of suit schedule properties and also with regard to her amounts kept as fixed deposit and lying in her savings bank account. The plaintiff and her
APKR0400002220245/68 O.S.No.8 of 2024 husband are having knowledge about the execution of will by Jakka Parvathi and by suppressing the said fact, they filed the present suit.
(b)Insofar as the item No.1 of suit schedule property is concerned, Jakka
Parvathi has purchased a vacant site in an extent of 193.38 sq. yards and thereafter, she got constructed a RCC building with ground, first and second floors by obtaining approved plan with the financial support of defendants 1 to 3. As per the recitals of will
dated 25/09/2019, Jakka Parvathi has bequeathed second floor of item No.1 of suit
schedule property to the 1st defendant along with undivided share of 64.46 sq. yards, first floor to the 2nd defendant along with undivided share of 64.46 sq. yards and ground floor to the 3rd defendant along with undivided share of 64.46 sq. yards.
(c)Insofar as item No.2 of suit schedule property is concerned, Jakka
Parvathi has purchased the said property along with a shed therein under a registered sale deed dated 05/12/2001 and delivered the same to the plaintiff to enjoy the said property with absolute rights keeping in view of her mental condition that she is not fluent in her speech and cannot hear properly. The plaintiff has not obtained any registered document from Jakka Parvathi. Therefore, in order to avoid any future litigation/disputes, Jakka Parvathi mentioned in the above referred will that item No.2 of suit schedule property was given to the plaintiff and also confirmed delivery of possession of the said property to her. Therefore, the plaintiff is in possession and enjoyment of item No.2 of suit schedule property even prior to execution of will and she has been collecting rents from the tenants but she intentionally suppressed the
APKR0400002220246/68 O.S.No.8 of 2024 said facts. The defendants 1 to 3 and Jakka Parvathi have taken care of the children of plaintiff and have rendered financial assistance for completion of their studies. Even after the demise of Jakka Parvathi, the defendants 1 to 3 have been rendering financial assistance to the plaintiff to perform the marriage of her daughter namely Durgamba and thereby the defendants 1 to 3 discharged their moral obligation. Forgetting all the help, the plaintiff in collusion with her husband, has filed the present suit without semblance of truth.
(d)Insofar as item No.3 of suit schedule property is concerned, Jakka
Parvathi has bequeathed southern portion in an extent of 66.66 sq. yards to the 1st defendant, middle portion in an extent of 66.66 sq. yards to the 2nd defendant and northern portion in an extent of 66.66 sq. yards to the 3rd defendant with absolute rights.
(e)During her lifetime, Jakka Parvathi made a fixed deposit in 4th defendant- bank nominating the 3rd defendant as her nominee to receive the amount and therefore, the 3rd defendant is entitled to receive the said amount. Even in the will,
Jakka Parvathi bequeathed the said amount to be payable to the 3rd defendant as he is suffering with various ailments. Jakka Parvathi also kept some amounts in her savings bank account lying with 4th defendant-bank and as per the recitals of Will dated 25/09/2019, she bequeathed the said amount to the defendants 1 to 3 wherein she clearly recited that the said amount has to be spent to perform her obsequies and to share the remaining amount among the defendants 1 to 3 equally. Thereafter, Jakka
APKR0400002220247/68 O.S.No.8 of 2024
Parvathi died on 11/05/2021 without canceling the will and therefore, the will dated 25/09/2019 came into force and the defendants 1 to 3 became the absolute owners of item Nos.1 to 3 of suit schedule properties and also for the amounts lying in savings bank account. Jakka Parvathi did not deposit a sum of Rs.10,00,000/- in the account of 1st defendant. The defendants 1 to 3 never tried to alienate item Nos.1 to 3 of suit schedule properties in favour of any third parties and never tried to bring any sham and nominal documents. After receipt of legal notice from the plaintiff, the defendants 1 to 3 questioned her and her husband and placed the matter before the elders by name Jakka Vishnu Murthy and Mummaneni Prasad who gone through the will dated 25/09/2019 and stated to the plaintiff’s husband that the plaintiff was given item No.2 of suit schedule property and further directed him not to indulge in any frivolous litigation. The elders also directed the defendants 1 to 3 to execute any registered document in favour of the plaintiff in respect of item No.2 of suit schedule property and deliver original sale deed to her. The defendants 1 to 3 agreed for the same. The plaintiff’s husband also agreed that he would not claim any share in Items 1 and 3 of suit schedule properties. Therefore, the defendants 1 to 3 did not give any reply.
Suddenly, the plaintiff’s husband turned hostile towards the defendants and filed the above suit with all false and frivolous allegations suppressing the real facts. The defendants 1 to 3 have no objection to execute any registered document in favour of the plaintiff in respect of item No.2 of suit schedule property. Insofar as item Nos.1 and 3 of suit schedule properties are concerned, after the death of Jakka Parvathi, the
APKR0400002220248/68 O.S.No.8 of 2024 defendants 1 to 3 are enjoying the said properties as per the terms of the will. There is no cause of action for the plaintiff to file the suit and the court fee under Section 34(2) of APCF and SV Act is not correct and the plaintiff ought to have paid ad valorem court fee under Section 34(1) of the Act. Hence, it is prayed to pass a decree and Judgment in terms of the will dated 25/09/2019 allotting Item No.2 of suit schedule property to the plaintiff, Items 1 and 3 of suit schedule properties to the defendants 1 to 3.
4.The 4th defendant-bank filed written statement denying the averments of the plaint as ‘false’ and further contended that Jakka Parvathi was having fixed deposit bearing No.042420100213601 and there was credit balance of Rs.6,67,644/-. To the said fixed deposit, Jakka Parvathi appointed 2nd defendant as nominee and the said amount was settled to the 2nd defendant on 17/04/2023. As a consequence, the above referred FDR was closed. It is further contended that Jakka Parvathi was also having another fixed deposit bearing No.042420100073207 and the matured amount is
Rs.3,48,686/- as on 31/03/2024. To the said fixed deposit, Jakka Parvathi nominated 3rd defendant as nominee and he is entitled to receive the proceeds from the bank. It is further contended that Jakka Parvathi was having savings bank account in 4th defendant-bank bearing No.042410011007680 and there is a credit balance of
Rs.4,18,859.72 Ps. Jakka Parvathi has appointed 3rd defendant as nominee to her savings bank account and the same was settled on 24/09/2021. As a sequence, the above referred savings bank account was closed. There is no cause of action for the
APKR0400002220249/68 O.S.No.8 of 2024 plaintiff to file the suit against the 4th defendant. Hence, it is prayed to dismiss the suit with costs.
5.After filing written statement by the defendants 1 to 3, the plaintiff has filed I.A.No.9 of 2025 seeking permission to file rejoinder and the same was allowed on 10/03/2025. The plaintiff contended in the rejoinder that her husband namely Damerla
Venkata Ratnam is a Tapi mastri having experience in the said field from his childhood (from the age of 11 years). The plaintiff’s husband is maintaining about 20 persons under him for construction activities. The plaintiff’s husband has constructed item No.1 of suit schedule property with his labour without taking any amount from Jakka
Parvathi. The plaintiff’s mother has spent money only for the purpose of purchasing building material and paid the same through the plaintiff’s husband namely Electrical wires, sanitary pipes and water line pipes etc., The 1st defendant did not contribute any amount for construction of building. The 3rd defendant worked under the 1st defendant who is running a shop under the name and style of M/s.Vijaya Durga Iron and Electrical
Jute Merchants. The plaintiff’s husband used to assist her father to perform the marriages of defendants 1 and 2. The plaintiff's husband also spent a sum of
Rs.3,50,000/- for establishing a shop by the 1st defendant under the name and style of
M/s. Vijaya Durga Iron and Electrical Jute Merchants and he repaid the same in installments within a span of 10 years. The parents of the plaintiff returned the amount spent by the plaintiff's husband at the time of marriages of defendants 1 and 2 in installments upto 2010. At the time of construction of building in item No.1 of suit
APKR04000022202410/68 O.S.No.8 of 2024 schedule property, the the parents of plaintiff promised to give first floor in item No.1 of suit schedule property since the plaintiff's husband has contributed huge amount for construction of the said building. Almost 1/3 rd value of the construction was borne by the plaintiff's husband by engaging masons and coolies. The plaintiff's husband also contributed a sum of Rs.4,00,000/- to start a new business by 2nd defendant who did not concentrate and work hard in the business and therefore, he sustained huge loss.
The 2nd defendant used to borrow money from third parties without the knowledge of his parents and plaintiff's husband and therefore, they used to settle the said amounts to the debtors. Initially the plaintiff’s husband and her parents have supported the 2nd defendant to run a business in electrical lighting works and thereafter, the 2nd defendant started a cell point at Yadavula Bazar, Patamata and closed the same within a period of 1½ years. Again the 2nd defendant opened another cell shop near Rythu
Bazar, Patamata and the same was closed within a period of 1½ or 2 years. Since the 2nd defendant could not run the business and on the other hand he is sustaining huge loss due to his vices. The plaintiff's husband convinced Jakka Parvathi and purchased an
Auto to him. Therefore, the 2nd defendant also could not contribute any amount either for the maintenance of the family or for construction of building in item No.1 of suit schedule property and he was being looked after by his wife. Even the said business also did run properly and sustained loss. With the active assistance of plaintiff’s husband, the 1st defendant could able to bear the 3rd defendant to work in his shop till the demise of Jakka Parvathi. The 3rd defendant never worked properly under the 1st
APKR04000022202411/68 O.S.No.8 of 2024 defendant and he was irregular in attending the duties and addicted to bad vices. Due to which he sustained serious ill-health and was taking treatment upto his last breath.
The plaintiff's husband assisted the 3rd defendant to purchase a passenger auto. Since the income derived from Auto is not sufficient for the maintenance and medical expenses of his family, the plaintiff's husband convinced Jakka Parvathi and allowed them to stay in Item No.1 of suit schedule property without rent. The defendants 1 and 2 are paying rents to Jakka Parvathi @ Rs.4,500/- per month. During Covid-19 pandemic conditions, Jakka Parvathi affected with Covid-19 and she could not recover and ultimately died. Due to unfortunate death of Jakka Parvathi, she could not execute any document in favour of the plaintiff in respect of 1st floor of Item No.1 of suit schedule property. After the death of Jakka Parvathi, the plaintiff and the defendants 1 to 3 came to understand that the rent of Rs. 6,000/- being derived from Item No. 2 of suit schedule property to be taken by the plaintiff, the rent for ground floor of item
No.1 of suit schedule property to a tune of Rs.12,000/- shall be taken by the 1st defendant and the rent for one portion of 1st floor and one portion of 2nd floor in Item
No.1 of suit schedule property to be taken by the 2nd and 3rd defendants till proper partition is effected. Jakka Parvathi never executed any will on 25/09/2019 and it was fabricated by the defendants by forging her signature. Jakka Parvathi was hale and healthy in the year 2019 and therefore, the alleged will never acted upon. The dispute between the parties was never placed before any elders. The parents of the plaintiff did not give any amount to her either at the time of her marriage or subsequently. On the
APKR04000022202412/68 O.S.No.8 of 2024 other hand it is the plaintiff's husband who spent huge amounts on different occasions and for construction of building in item No.1 of suit schedule property and also for commencement of new businesses by the defendants 1 to 3. The services rendered by the plaintiff's husband cannot be compensated in any manner. Hence, the rejoinder.
6.After filing rejoinder, the 1st defendant filed additional written statement which was adopted by the defendants 2 and 3 denying the averments in the rejoinder and further contended that the averments of the rejoinder are developed case. During her lifetime, Jakka Parvathi used to do finance and Chit business along with her husband. The plaintiff’s husband is not a Tapi mastri and he is a coolie and therefore, the contention of plaintiff that 20 people used to work under the plaintiff’s husband is false. The plaintiff's husband never assisted the family of defendants and it is Jakka
Parvathi and her sons who used to look after the welfare of the plaintiff and her family.
Considering the fact that the plaintiff is a dumb and her husband is a coolie, whenever any financial assistance is needed, it is Jakka Parvathi and defendants 1 to 3 who used to assist her. The defendants 1 to 3 extended financial assistance to the plaintiff to educate her children and thereafter, they have discharged their moral obligation by performing the marriage of plaintiff’s daughter. The plaintiff’s husband never contributed any amount to the 1st defendant for commencing his business. Originally, the 1st defendant worked in the shop of New Venkateswara Iron & Electrical Jute
Merchants, Opposite to J.D. Towers, Auto Nagar Gate, Vijayawada and with the salary received by him and the amounts given by his in-laws, he started the business. There is
APKR04000022202413/68 O.S.No.8 of 2024 no documentary proof to show that the plaintiff’s husband has rendered any financial support or assistance to the 1st defendant in doing the business. Originally, the 2nd defendant worked in Chakravarthi Engineering, near Benz Circle, Vijayawada and later he used to assist the 1st defendant in his business till his marriage and thereafter, established his own business with his own earnings. Though the 2nd defendant established cell point, he could not run the said business properly since he had no technical knowledge in repairing the cell phones and therefore, the cell point established by him at Yadavula Bazaar and Rythu Bazaar were closed. Originally the 3rd defendant worked in Meena Steels and later he used to assist the 1st defendant in his business. Jakka Parvathi has constructed a building in item No.1 of suit schedule property by availing housing loan from Andhra Bank, Patamata Branch and after her death, the defendants 1 and 2 have been paying loan installments. The plaintiff has created a false story with regard to construction of building in item No.1 of suit schedule property. Earlier the 1st defendant used to reside in the ground floor of item
No.1 of suit schedule property and at that time, his son passed away and on the advise of Astrologers, he vacated the ground floor portion and let out the same to the tenants. The rent derived from ground floor portions are used for payment of property tax to Vijayawada Municipal Corporation. In the first floor, the defendants 2 and 3 are residing separately. The second floor portion is kept vacant and not let out to any tenants. The contentions raised by the plaintiff in the rejoinder were not originally pleaded by the plaintiff in the plaint. The plaintiff’s husband has no financial capacity to
APKR04000022202414/68 O.S.No.8 of 2024 render financial assistance to the defendants family. Jakka Parvathi has executed a will on 25/05/2019 in a sound and disposing state of mind to the knowledge of one and all including the plaintiff’s husband but now the defendants 1 to 3 are intentionally speaking falsehood. Hence, it is prayed to dismiss the suit with costs.
7.On the basis of above pleadings, the following issues have been settled for trial:
(1)Whether the plaintiff is entitled for partition of items 1 to 3 of
suit schedule properties into four equal shares and allotment of
one such share each?
(2)Whether the 4 th defendant is a proper and necessary party to the suit?
(3)To what relief?
Initially, the defendants 1 to 3 remained ex parte and thereafter, the ex parte order passed against them was set aside on petition. After filing written statement by the defendants 1 to 3, the following additional issues were settled:
(1)Whether the will dated 25/09/2019 is true, valid and binding on
the plaintiff and if so whether the defendants 1 to 3 are the
absolute owners of items 1 and 3 of suit schedule properties?
(2)Whether Jakka Parvathi originally purchased item No.2 of suit
schedule property under a registered sale deed dated 05/12/2001
and later bequeathed the same to the plaintiff under the will
dated 25/09/2019?
(3)Whether the court fee paid is correct?
After filing rejoinder by the plaintiff and additional written statement by the defendants 1 to 3, the following additional issues are framed:
(1)Whether item No.1 of suit schedule property is the self-acquired
property of deceased Jakka Parvathi and if so whether she got
APKR04000022202415/68 O.S.No.8 of 2024
constructed a building in the said property by availing a house
loan?
(2)Whether the deceased Jakka Parvathi executed a will dated 25/09/2019 in a sound and disposing state of mind?
(3)Whether item No.2 of suit schedule property is also a self-
acquired property of deceased Jakka Parvathi and if so whether
she gave the property to the plaintiff as she was dumb?
8.On behalf of plaintiff, Pw.1 was examined and Exs.A1 to A22 were got marked. On behalf of defendants 1 to 3, Dws.1 and 2 were examined and Exs.B1 to B4 were got marked. On behalf of 4th defendant, Dw.3 was examined and no documents are marked.
9.ADDITIONAL ISSUES 1 AND 2 framed on 27/11/2024 AND
ADDITIONAL ISSUES 1 to 3 FRAMED on 26/03/2025: These five issues are clubbed
together as the facts and legal points involved in these five issues are interlinked with each other. Admittedly, the plaintiff has filed the present suit for a comprehensive relief of partition and separate possession. In the written statement and additional written statement, the defendants 1 to 3 are contending that Jakka Parvathi did not die intestate and she executed a will on 25/09/2019 in a sound and disposing state of mind bequeathing items 1 to 4 of suit schedule properties in favour of plaintiff and the defendants 1 to 3 and therefore, the suit for partition of the same properties covered under the will is not maintainable. It is a settled proposition of law that in a suit for partition, the initial burden lies upon the plaintiff to prove that there exists a Hindu
Undivided Joint Family and joint family properties as on the date of filing the suit and all the joint family properties were brought for partition.
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10.To discharge the initial burden, the husband of plaintiff who is the GPA holder himself entered into witness box as Pw.1 and his evidence in the chief- examination affidavit is nothing but replica of contents of the plaint and rejoinder.
Through Pw.1, Exs.A1 to A22 were got marked. Ex.A1 is the certified copy of registered sale deed bearing document No.4796/2004 executed by Koneru Omkaram in favour of
Jakka Parvathi (item No.1 of suit schedule property) dated 22/12/2004. Ex.A2 is the certified copy of registered sale deed bearing document No.3959/2001 executed by
S.Radhika in favour of Jakka Parvathi (item No.2 of suit schedule property) dated 05/12/2001. Ex.A3 is the certified copy of registered sale deed bearing document
No.800/2018 executed by Shaik Ameenabi in favour of Jakka Parvathi (part of item No.3 of suit schedule property) dated 24/01/2018. Ex.A4 is the certified copy of registered sale deed bearing document No.802/2018 executed by Shaik Akbar in favour of Jakka
Parvathi (part of item No.3 of suit schedule property) dated 24/01/2018. Ex.A5 is the copy of death certificate of Jakka Surya Appa Rao issued by Vijayawada Municipal
Corporation dated 17/09/2010. Ex.A6 is the receipt dated 21/04/2023 issued by
Vijayawada Municipal Corporation for payment of property tax to the house bearing assessment No.1073132470 issued in favour of Jakka Parvathi. Ex.A7 is the receipt
dated 01/05/2023 issued by Vijayawada Municipal Corporation for payment of property
tax to the house bearing assessment No.1192009130 issued in favour of Jakka
Parvathi. Ex.A8 is the office copy of legal notice dated 25/10/2023 issued by the plaintiff to the defendants 1 to 4. Ex.A9 is the served postal acknowledgment of 1st defendant
APKR04000022202417/68 O.S.No.8 of 2024
dated 27/10/2023. Ex.A10 is the served postal acknowledgment of 2nd defendant dated
27/10/2023. Ex.A11 is the served postal acknowledgment of 3rd defendant dated 27/10/2023. Ex.A12 is the served postal acknowledgment of 4th defendant dated 26/10/2023. Ex.A13 is the market value certificate issued by SRO, Patmata for item No.1 of suit schedule property dated 26/10/2023. Ex.A14 is the market value certificate issued by SRO, Kankipadu for item No.2 of suit schedule property dated 31/10/2023.
Ex.A15 is the market value certificate issued by SRO, Patmata for item No.3 of suit schedule property dated 26/10/2023. Ex.A16 is the General Power of Attorney executed by the plaintiff in favour of plaintiff dated 06/11/2023. Ex.A17 is the requisition dated 24/02/2025 submitted by plaintiff’s counsel to the 4th defendant under RTI Act. Ex.A18 is the reply notice dated 05/03/2025 issued by regional manager, Union Bank of India,
Vijayawada to the plaintiff’s counsel. Ex.A19 is the requisition dated 01/04/2025 submitted by plaintiff’s counsel to the 4th defendant under RTI Act. Ex.A20 is the office copy of legal notice dated 01/04/2025 issued by the plaintiff to the Regional Manager,
Union Bank of India, Vijayawada marking copies of the same to the higher official of 4th defendant. Ex.A21 is the letter dated 19/04/2025 received from Regional office of 4th defendant-bank in reply to application of Pw.1 under RTI Act along with enclosures (Xerox copy of application of claimant, claim form, check list of document, application for account opening form for term deposit, nomination form, front page of bank passbook, copy of Aadhar card, copy of death certificate of Jakka Parvathi and her
Aadhar card and copy of Aadhar card of Jakka Durga Prasad).
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11.To disprove the case of plaintiff, the 1st defendant himself entered into witness box as Dw.1 and his evidence in the chief-examination affidavit is nothing but replica of contents of his written statement and additional written statement. Through
Dw.1, Ex.B1 was got marked. Ex.B1 is the original unregistered will dated 25/09/2019 executed by Jakka Parvathi in favour of the plaintiff. During cross-examination of Dw.1,
Ex.A22 xerox copy of family member certificate dated 19/07/2021 obtained through
Mee-seva was got marked.
12.One of the attestors of Ex.B1 Will by name Devabhaktuni Srinivasa Rao was examined as Dw.2 and he deposed that the deceased Jakka Parvathi has executed
Ex.B1 will in a sound and disposing state of mind and he signed on the said will as first attestor. Dw.2 further deposed that one A. Rama Rao is the second attestor. According to Dw.2, on 25/09/2019 Jakka Parvathi has signed on the will in their presence and they have seen Jakka Parvathi signing the will and thereafter, they both signed on the will as attestors in her presence and she has seen the attestors signing the will as witnesses.
13.The Chief Manager of 4th defendant was examined as Dw.3 and his evidence in the chief-examination affidavit is nothing but replica of contents of their written statement. Through Dw.3, Exs.B2 to B4 were got marked. Ex.B2 is the attested copy of transaction enquiry relating to FDR No.042420100213601 of Jakka Parvathi which was settled to 2nd defendant who is shown as nominee dated 10/04/2024 and the settled amount is Rs.6,67,644/-. Ex.B3 is the attested copy of bank statement of
Jakka Parvathi being maintained by 4th defendant-bank for FDR No.042420100073207
APKR04000022202419/68 O.S.No.8 of 2024 covering the period from 01/01/2021 to 10/04/2024 along with nomination form issued in favour of 3rd defendant dated 12/04/2024. Ex.B4 is the attested copy of bank statement of Jakka Parvathi being maintained by 4th defendant for the savings bank account bearing No.0424100011007680 covering the period from 01/01/2021 to 24/09/2021 along with nomination form standing in the name of 3rd defendant dated 12/04/2024.
14.The learned counsel for the plaintiff argued that the plaintiff by examining her husband who is her GPA holder and by producing Exs.A1 to A22 clearly and clinchingly proved that she is suffering with deaf and dumb, could not hear and speak freely and therefore she appointed her husband who is well-versed with the facts of this suit and who has got personal knowledge about the same, as her Power of
Attorney and executed Ex.A16 GPA and therefore, the plaintiff's husband is a competent witness to represent the suit and to give evidence on the facts which are within his personal knowledge. He argued that the defendants 1 to 3 who are brothers, are having knowledge about the condition of plaintiff and even in the written statement, they have categorically contended the impairment of the plaintiff that she is not in a position to hear and speak freely and therefore, the defendants are estopped from contending that non-examination of plaintiff is fatal to the case. He further argued that even at the time of filing the suit, the plaintiff has filed I.A.No.62 of 2024 under Rule 32 of Civil Rules of Practice seeking permission to represent her through her husband and the same was allowed. Merely because the plaintiff has not filed any
APKR04000022202420/68 O.S.No.8 of 2024 medical record to show her impairment, her physical condition about partial deaf and dumb cannot be disputed in view of the admissions made by defendants 1 to 3 in the written statement and therefore, Ex.A16 GPA is a legally acceptable document. He further argued that in view of Ex.A16 GPA, Pw.1 is a competent person to represent the plaintiff in the suit and to give evidence. He further argued that the relationship between the parties as sister and brothers is not in dispute and it is also not in dispute that items 1 to 3 of suit schedule properties are the self-acquired properties of the deceased Jakka Parvathi who is their mother and the same is proved by the plaintiff by producing Exs.A1 to A4 sale deeds. According to learned counsel, during lifetime of
Jakka Parvathi, she herself got constructed a RCC building in item No.1 of suit schedule property consisting of ground, first and second floors with her hard-earned money and by availing bank loan and absolutely there is no contribution from anyone of the defendants. He argued that though the defendants have contended in the written statement about their contribution for construction of building in item No.1 of suit schedule property, the same remained as an allegation without any proof. He pointed out that the admissions made by Dw.1 during cross-examination clearly go to show that he has not filed any documentary proof to show that he made any financial assistance to his mother Jakka Parvathi for construction of building in item No.1 of suit schedule property. According to learned counsel, it is an undisputed fact that during her lifetime, Jakka Parvathi was doing real estate and finance business and she was in a sound financial position and could able to purchase properties, construct buildings and
APKR04000022202421/68 O.S.No.8 of 2024 maintain the family and therefore, she need not depend upon anybody for any financial assistance. He further argued that Pw.1 who is the son-in-law of Jakka
Parvathi was a తాపిమేస్త్రీ� and he got constructed a building in item No.1 of suit schedule property with his men (coolies) and did not receive any amount from his mother-in-law and taking into consideration the services rendered by Pw.1 in construction of building in item No.1 of suit schedule property, Jakka Parvathi assured to give first floor of the building to the plaintiff on humanitarian consideration and taking into consideration the health condition of the plaintiff. He further argued that Jakka Parvathi has deposited some fixed deposits in 4th defendant-bank and also kept some amount in her savings bank account lying in the same bankand she also deposited a sum of
Rs.10,00,000/- in the account of 1st defendant lying with 4th defendant-bank about eight years back for the purpose of meeting the common family expenses but the 1st defendant has utilized the said amount for his personal use without the knowledge and consent of Jakka Parvathi and other family members. According to learned counsel, during lifetime of Jakka Parvathi, she never executed any document in favour of any of the family members and she died intestate on 11/05/2021 leaving behind the plaintiff and the defendants 1 to 3 as her sole legal representatives to succeed her estate. After the death of Jakka Parvati, though the plaintiff has been demanding the defendants 1 to 3 for amicable partition, they have been postponing the same on some pretext or the other and acting detrimental to the interests of the plaintiff by withdrawing cash from the savings bank account of Jakka Parvati and shared
APKR04000022202422/68 O.S.No.8 of 2024 themselves. He further argued that the plaintiff by cross-examining Dw.3 proved the above said facts. He further argued that when the defendants 1 to 3 did not come forward for amicable partition, the plaintiff got issued Ex.A8 legal notice demanding partition and though the defendants have received the said legal notice, they did not come forward for amicable partition nor given any reply. He further argued that the defendants have raised false allegations in the written statement and propounded
Ex.B1 will which is a forged and fabricated document, brought into existence after institution of the suit and after receiving summons from the court. He argued that during lifetime of Jakka Parvati, she did not execute Ex.B1 will bequeathing her properties in favour of any of the family members. He further argued that when Jakka
Parvathi was hale and healthy, there is no necessity for her to execute a will on 25/09/2019. He pointed out that whenever any will is propounded, the party who produced the said will is required to prove the same in accordance with Section 63 of
Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872. He argued that the evidence of Dw.2 who is one of the attestors of Ex.B1 will, is as suspicious as it could be and does not inspire confidence of the court. According to learned counsel, there are suspicious circumstances surrounding Ex.B1 will and the burden lies upon the defendants 1 to 3 to remove the same but in the present case on hand, the defendants 1 to 3 except producing Ex.B1 and examining Dw.2, failed to remove any of the suspicious circumstances surrounding the will. He argued that a perusal of Ex.B1 will prima facie go to show that it was prepared on a conquest paper consisting of nine
APKR04000022202423/68 O.S.No.8 of 2024 (9) pages through a computer. A bare look of the said document does not show that it was prepared in the year 2019 and if really a will was prepared in the year 2019, by the time of production of the said document before the court, there would be some traces of old document viz., 6 years old document, but a perusal of Ex.B1 will clearly go to show that it was as new as it could be. He further argued that the recitals of Ex.B1 clearly go to show that the testator has mentioned the amalgamation of Andhra Bank into Union Bank in page No.9 of the document. The above recital itself clearly falsifies the document because Andhra Bank was amalgamated with Union Bank in April, 2020 and therefore, an inference can safely be drawn that the said document (Ex.B1) might be created by the defendants 1 to 3 after institution of the suit in collusion with the alleged attestors. He further argued that though Ex.B1 will was prepared in the office of document writer by name Gopi, his signature is conspicuously absent on the last page of the document which raises any amount of suspicion as to whether the said document was really prepared by the document writer Gopi or not. On the other hand, it gives rise to a suspicion that in all probabilities, the 1st defendant who is managing the properties after the death of Jakka Parvathi might have played active role in creating the document. Even otherwise, non-examination of document writer Gopi is fatal to the case of defendants. According to learned counsel, there is active collusion between the defendants 1 to 3 and 4th defendant-bank in withdrawing fixed deposits and the amounts lying in savings bank account of Jakka Parvathi which fact is proved by the plaintiff during cross-examination of Dw.1 wherein he admitted that paras 19 to
APKR04000022202424/68 O.S.No.8 of 2024 21 of his chief-examination affidavit are not originally pleaded in the written statement and after filing written statement by the 4th defendant, he has incorporated the same in the chief affidavit. When the defendants failed to prove Ex.B1 will and failed to remove all suspicious circumstances surrounding the will, the fact remains that the items 1 to 4 of suit schedule properties are the self-acquired properties of Jakka
Parvathi and the plaintiff being the daughter is entitled to claim 1/4th share. He further argued that merely because the defendants 2 and 3 were shown as nominees for fixed deposits and savings bank account, they cannot claim the said amount as their own on the death of principal and after receiving the amount from the bank, the same has to be shared among other family members. He further argued that the 4th defendant- bank without insisting the production of succession certificate, has settled one fixed deposit in the name of 2nd defendant without following the procedure contemplated under banking rules. He further argued that the plaintiff by cross-examining Dw.1 clearly and clinchingly disproved the contentions raised by them in their written statement and also disproved Ex.B1 as forged and fabricated document. According to learned counsel, when the plaintiff is denying the execution of Ex.B1 will by Jakka
Parvathi and has taken a plea of forgery, the burden lies upon the defendants to prove that the signatures appearing on Ex.B1 will is that of Jakka Parvathi by sending the document along with some admitted signatures to the handwriting expert for comparison and opinion but in this suit, the defendants have not taken any steps to send Ex.B1 will to the handwriting expert for comparison and opinion. He further
APKR04000022202425/68 O.S.No.8 of 2024 argued that the evidence of Dw.1 in the cross-examination clearly disproves the contention raised by them in the written statement with regard to mediation that alleged to have been taken place after receipt of Ex.A8 legal notice. He pointed out that no mediation took place between the parties either before issuance of Ex.A8 legal notice or after issuing the same and on the other hand, they have created Ex.B1 will only after receiving suit summons to deny share to the plaintiff. Since the suit schedule properties are the self-acquired properties of Jakka Parvathi, the plaintiff being the daughter, is entitled to claim 1/4th share as per the provisions of Hindu Succession Act, 1956. Hence, he prayed to pass a preliminary decree and judgment ordering partition of items 1 to 4 of suit schedule property into four equal shares and to allot one such share to the plaintiff by taking into consideration good and bad qualities.
15.Per contra, the learned counsel for the defendants 1 to 4 by filing written arguments contended that the relationship between the parties as sister and brothers is not in dispute and it is also not in dispute that items 1 to 3 of suit schedule properties are the self-acquired properties of Jakka Parvathi. According to learned counsel, the deceased Jakka Parvathi and the defendants 1 to 3 who are earning members, contributed funds for construction of building in item No.1 of suit schedule property. He argued that the main issue involved in the suit is whether the plaintiff has proved that she is completely deaf and dumb and she cannot speak or hear and in the absence of any medical evidence in spite of giving suggestions to Pw.1, no documentary evidence is produced before the court to prove her condition and
APKR04000022202426/68 O.S.No.8 of 2024 therefore, the suit itself is not maintainable. He argued that Pw.1 is instrumental in filing this frivolous suit. He further pointed out that Pw.1 and his mother coerced the plaintiff to file the suit and intentionally made her not to appear before the court and give evidence and therefore, an adverse inference can be drawn against the plaintiff under Section 114 of Indian Evidence Act, 1872. He further argued that the defendants 1 to 3 who are claiming the suit schedule properties on the basis of Ex.B1 will dated 25/09/2019 has proved the said document by examining one of the attestors as Dw.2 and therefore, the ingredients of Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 are complied by the propounders and therefore, it has to be held that Ex.B1 will is legally proved and as per the recitals of Ex.B1 will, the 1st defendant was allotted second floor, the 2nd defendant was allotted first floor and the 3rd defendant was allotted ground floor of the building in item No.1 of suit schedule property along with undivided share of 64.46 square yards and similarly the defendants 1 to 3 got 66.66 square yards each in item No.3 of suit schedule property with absolute rights. He further argued that as per the recitals of Ex.B1 will, though the deceased Jakka Parvathi has purchased item No.2 of suit schedule property under
Ex.A2 sale deed, she allotted the said property to the plaintiff with absolute rights keeping in view of her condition that she was not fluent in her speech and cannot hear properly. He contended that even though no registered document was executed in favour of the plaintiff, Jakka Parvathi has delivered possession of said property to her and the same was also mentioned in Ex.B1 will confirming delivery of possession of
APKR04000022202427/68 O.S.No.8 of 2024 item No.2 of suit schedule property to the plaintiff. According to learned counsel, the defendants 1 to 3 and their mother were taken care of the children of plaintiff by rendering financial assistance to complete their education and to settle in their life and also rendered financial assistance to perform the marriages of plaintiff's daughter
Durgamba. He argued that with regard to fixed deposits and amounts lying in the savings bank account of Jakka Parvathi, as per the recitals of Ex.B1 Will she already nominated the defendants 2 and 3 to receive the fixed deposit amounts and to share the amount lying in savings bank account after spending amount to perform her obsequies and therefore, the defendants 1 to 3 have fulfilled the obligation casted upon them as per Ex.B1 will and therefore, the plaintiff is not entitled to claim any share in item Nos.1, 3 and 4 of the suit schedule properties. He further argued that when Jakka Parvathi has executed Ex.B1 will dated 25/09/2019 bequeathing her properties and after her death on 11/05/2019, the said will came into force and the defendants 1 to 3 have became the absolute owners of items 1 and 3 of suit schedule properties and also the amounts lying in the savings bank account which was already been withdrawn and spent for her obsequies and shared the balance amount among the defendants 1 to 3 and therefore, nothing is left over for partition and therefore, it is clear that there is no cause of action for the plaintiff to file the suit and in fact, the plaintiff is not in joint possession and enjoyment of items 1 and 3 of suit schedule properties and therefore, the court fee paid under Section 34(1) of APCF & SV Act is not correct. He further argued that after filing written statement by the defendants, the
APKR04000022202428/68 O.S.No.8 of 2024 plaintiff by taking leave of the court, filed rejoinder and took new pleas which were not originally pleaded in Ex.A8 legal notice or in the plaint. Even otherwise, the plaintiff or
Pw.1 failed to prove the allegations leveled in the rejoinder by adducing concrete oral and documentary evidence and therefore, the contentions raised by the plaintiff in the rejoinder are nothing but deviation from the original pleadings. However, the said contentions remained unproved and no oral and documentary evidence is adduced in respect of the said allegations. According to learned counsel, the answers elicited during cross-examination of Pw.1 clearly go to show that he played pivotal role in issuing Ex.A8 legal notice, filing the present suit and he gave evidence detrimental to the interests of the plaintiff. He pointed out that Ex.A16 GPA is not a legally valid document and notarization of the said document is not proved in accordance with law.
He argued that as regards item No.4 of suit schedule property viz., fixed deposits and amount lying in the savings bank account, are concerned, the 4th defendant-bank acted as per the banking rules and after the death of account holder, the amounts were settled as per the nomination and since the defendants 2 and 3 are the nominees for the fixed deposit and savings bank account, they are entitled to claim the said amount from the 4th defendant-bank. He further argued that the plaintiff failed to adduce any oral and documentary evidence to prove that in the year 2008 itself, Jakka Parvathi has deposited a sum of Rs.10,0,000/- to meet common necessities. With regard to amalgamation of Andhra Bank with Union Bank is concerned, he argued that merging of said banks was already published in daily newspaper and even the bank authorities
APKR04000022202429/68 O.S.No.8 of 2024 have informed about the merger to the testator Jakka Parvathi and therefore, she might have informed to the document writer about the transferee bank and on that ground the genuineness of Ex.B1 will cannot be viewed suspiciously. When the defendants 1 to 3 have proved Ex.B1 will in accordance with law, the burden shifts on to the plaintiff to prove that the signatures on Ex.B1 will does not belong to Jakka
Parvathi. The plaintiff has not produced any independentsignatures of Jakka Parvathi to disprove her signature on Ex.B1 will by sending the said document to the handwriting expert for comparison and opinion. It is further pointed out that Pw.1 failed to produce any documentary proof to show that he is working as తాపిమేస్రి� for the past 30 years and he got constructed the building in item No.1 of suit schedule property at free of cost and also failed to prove that Jakka Parvathi promised to give first floor in item No.1 of suit schedule property. According to learned counsel, the plaintiff or Pw.1 failed to adduce any documentary evidence to show that Pw.1 has rendered any financial assistance to the defendants 1 to 3 either for establishing shop by 1st defendant or for purchasing autosby defendants 2 and 3 and also for performing the marriages of defendants 1 and 2. In the absence of any proof, the contentions raised by the plaintiff in the rejoinder remained as an allegation without any proof. He further argued that when Ex.B1 will is proved in accordance with law and and after the death of Jakka Parvathi on 11/05/2021, the will came into force and therefore, the plaintiff and defendants have to adhere to the recitals of said will. He pointed out that in view of Ex.B1 will, the defendants 1 to 3 have no objection to
APKR04000022202430/68 O.S.No.8 of 2024 execute any registered document in favour of the plaintiff in respect of item No.2 of suit schedule property and at the same time the plaintiff is not entitled to claim any share in items 1, 3 and 4 of the suit schedule properties. Hence, he prayed to dismiss the suit with costs.
16.Keeping in view of rival contentions of both parties, it is now relevant to examine whether the plaintiff could able to prove that there exist Hindu Undivided
Joint family as on the date of filing the suit and joint family properties without division.
It is a well-settled principle of law that in a suit filed by a co-sharer, coparcener, co- owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenary property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly, whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharers, coparceners, co-
APKR04000022202431/68 O.S.No.8 of 2024 owners or joint owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. Keeping in view of the above legal principles, it is relevant to examine the facts of the present case on hand.
17.As already referred above, the plaintiff and defendants 1 to 3 are own sister and brothers. It is also not in dispute that one Jakka Parvathi who is the mother of plaintiff and the defendants 1 to 3, has purchased items 1 to 3 of suit schedule properties from original owners under Exs.A1 to A4 sale deeds. During lifetime of Jakka
Parvathi, she herself got constructed a building in item No.1 of suit schedule property consisting of ground, first and second floors. Though the defendants contended in the written statement so also claimed in the evidence that they being the earning members, contributed funds for construction of building in item No.1 of suit schedule property, they failed to adduce any legally acceptable oral and documentary evidence to prove the said fact. However, the pleadings and evidence adduced by both parties clearly go to show that Jakka Parvathi got constructed a building in Item No.1 of suit schedule property with her own hard-earned money and by availing bank loan. It is an undisputed fact that Jakka Parvathi did real estate and finance business. Therefore, it can be inferred that Jakka Parvathi might be having sufficient financial resources to purchase properties and to construct a building. In the rejoinder, the plaintiff contended that her husband being a తాపిమేస్రి� has constructed a building in item No.1 of
APKR04000022202432/68 O.S.No.8 of 2024 suit schedule property by engaging coolies (20 in number). To prove the said fact, except examining her husband as Pw.1, she did not adduce any other legally acceptable oral and documentary evidence. Even during cross-examination, the plaintiff's husband as Pw.1 categorically deposed that Jakka Parvathi has availed housing loan in Andhra Bank, Patamata Branch for constructing building in item No.1 of suit schedule property. At another stage of cross examination, Pw.1 admitted that he has no documentary proof to show that he supported the family of defendants 1 to 3 financially or supported his parents-in-law financially at the time of performing marriages or construction of building in item No.1 of suit schedule property or at the time of discharge of debts of 2nd defendant and further admitted that he has not obtained any documentary proof. During cross-examination of Dw.1, she admitted that
Pw.1 got constructed building in item No.1 of suit schedule property by engaging coolies. Therefore, it is clear that Jakka Parvathi got constructed a building in item No.1 of suit schedule property through Pw.1. However, the plaintiff failed to adduce any convincing evidence to show that recognizing the services rendered by Pw.1 in making construction and considering plaintiff’s health condition Jakka Parvathi assured her to give first floor in item No.1 of suit schedule property. Be that as it may, a building consisting of ground, first and second floors was constructed in item No.1 of suit schedule property. The evidence of Pw.1 clearly go to show that initially the 1st defendant resided in the ground floor of the said building while the defendants 2 and 3 resided in first floor portion. Whatever is said and done, there is a building in item No.1
APKR04000022202433/68 O.S.No.8 of 2024 of suit schedule property consisting of ground, first and second floor being constructed by Jakka Parvathi. It is also not in dispute that Jakka Parvathi purchased item No.2 of suit schedule property under Ex.A2 sale deed in the year 2001 with her own funds and the plaintiff is enjoying the said property by receiving the rents @
Rs.6,000/- per month. It is also not in dispute that item No.3 of suit schedule property was also purchased by Jakka Parvathi under Exs.A3 and A4 sale deeds. The plaintiff claims that after the death of Jakka Parvathi on 11/05/2021, she demanded the defendants for amicable partition and they have been postponing the same on some pretext or the other and when they are acting detrimental to her interest, she got issued Ex.A8 legal notice and filed the present suit. The defendants 1 to 3 propounded
Ex.B1 will dated 25/09/2019 and claiming that by virtue of Ex.B1 will, they became the absolute owners of items 1, 3 and 4 of suit schedule property and they have no objection to execute any registered document in favour of the plaintiff in respect of item No.2 of suit schedule property and therefore, the suit for partition is not maintainable.
18.It is a settled proposition of law that whenever any will is propounded, the burden lies upon the propounder to prove the same as per Section 63 of Indian
Succession Act, 1925 and Section 68 of Indian Evidence Act 1872. A Will is a solemn document and it speaks only after the death of the testator who will not be available in this world to speak about the circumstances under which he/she made the bequest. It is a compulsorily attestable document as could be seen from the provisions of Sec.63(c)
APKR04000022202434/68 O.S.No.8 of 2024 of the Indian Succession Act, 1925. The rules governing execution of Wills as per 63 of
Indian Succession Act, 1925 are (a) the testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction; (b)
The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will; (c) the will shall be attested by two or more witnesses, each of whom has seen the will or has seen some other person signing the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Therefore, to say a will has been duly executed, the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the
Succession Act, 1925 are to be complied with. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
19.Section 68 of the Evidence Act, 1872 speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable
APKR04000022202435/68 O.S.No.8 of 2024 of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding a will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act.
Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined but at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the
Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness
APKR04000022202436/68 O.S.No.8 of 2024 can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive.
This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to
APKR04000022202437/68 O.S.No.8 of 2024 recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under Clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witnesses examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances.
But Section 68 is not merely on enabling Section. It lays down the necessary requirements, which the Court has to observe before holding that a document is
APKR04000022202438/68 O.S.No.8 of 2024 proved. Therefore, Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will.
20.Keeping in view of the above legal principles for proof of will, it is now relevant to examine the facts of this suit. The record clearly go to show that before filing the suit, the plaintiff got issued Ex.A8 legal notice to the defendants but they did not give any reply. For the first time, in the written statement, the defendants 1 to 3 contented that about execution of Ex.B1 will by Jakka Parvathi on 25/09/2019 and further claimed that after receiving Ex.A8 legal notice, they placed the matter before the elders viz., one Vishnu Murthy and Mummaneni Prasad for mediation wherein the plaintiff and her husband attended and that the elders on seeing the recitals of Ex.B1 will informed Pw.1 that the plaintiff was given a valuable property and not to indulge in any frivolous litigation and further directed the defendants 1 to 3 to execute any registered document in respect of item No.2 of suit schedule property and to deliver original sale deed to the plaintiff and the plaintiff's husband agreed that he would not
APKR04000022202439/68 O.S.No.8 of 2024 press the issue any more in future and therefore, they did not give any reply. Coming to the evidence of Dw.1, he deposed in the cross-examination that before filing the suit, the plaintiff got issued Ex.A8 legal notice and before receiving Ex.A8 legal notice, they placed the matter before elders for settlement and after receipt of Ex.A8 legal notice, they have no connection whatsoever with the plaintiff and they did not place the matter before any elders for settlement. In view of the above evidence of Dw.1, the contentions raised by the defendants 1 to 3 in the written statement became falsified meaning thereby no mediation took place between the parties in the presence of
Vishnu Murthy and Mummaneni Prasad. Therefore, the suggestion hurled to Pw.1 with regard to the said mediation is proved as false.
21.For the first time in the written statement when the defendants 1 to 3 came up with the plea of execution of Ex.B1 will by Jakka Parvathi on 25/09/2019, the plaintiff by seeking the leave of the court, filed rejoinder denying the execution of
Ex.B1 will by Jakka Parvathi and claimed that the said document is forged and fabricated one and might have been created after filing of the suit. The learned counsel for the plaintiff pointed out several suspicious circumstances surrounding
Ex.B1 will. It is a settled proposition of law that if there are suspicious circumstances surrounding the will, the burden lies upon the propounder to remove the same by adducing sufficient oral and documentary evidence. In a decision between Daulat Ram and others Vs. Sodha and others1 our Hon’ble Supreme Court held as follows:
1 AIR 2005 SC 233
APKR04000022202440/68 O.S.No.8 of 2024 “Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.”
In another decision between Pinnaka Hanumantha Rao and others Vs. Garlapati
Dhanalakshmi 2 our Hon’ble High Court while referring various decisions of Hon’ble
Apex Court and High Courts held as follows:
“30. From the various precedents cited by the learned Counsel referred to above, the following principles broadly emerge.
1. Whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of Sections 67, 68, 45 and 47 of the Evidence Act and Sections 59 and 63 of the Indian Succession Act.
2. A Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act.
2 2007(2) ALD 435
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3. Proof with mathematical certainty is not expected and the test to be applied would be the usual test of the satisfaction of the prudent mind.
4. The propounder would be called upon to show by disinterested, satisfactory and sufficient evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind free from all extraneous influences, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will and that he had signed it in the presence of two witnesses who attested in his presence and the presence of each other.
5. The onus on the propounder to prove the due and valid execution of the Will can be taken to be discharged on proof of the essential facts.
6. The execution of the Will may be surrounded by suspicious circumstances like, --
(a) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(b) The condition of the testator's mind may be very feeble and debilitated.
(c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons.
(d) The dispositions may not appear to be the result of the testator's free Will and mind.
(e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him.
(f) The testator used to sign blank papers.
(g) The Will did not see the light of the day for long.
(h) Incorrect recitals of essential facts.
(i) The unregistered Will challenged as forged comes from the custody of major beneficiary.
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7. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated and that inevitably would be a question of fact in each case.
8. Each and every circumstance is not a suspicious circumstance and a circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
9. All such legitimate suspicions should be completely removed by the propounder before accepting the document as the last Will of the testator and satisfactory discharge of such initial onus is very heavy and the test of satisfaction of judicial conscience is pivotal in deciding the solemn question.
10. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will.
11. A testator has the freedom to give his property to whomsoever he likes and once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to its own standard.
12. No hard and fast or inflexible rules can be laid down for the appreciation of the evidence and application of general and broad principles would always depend on the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.
13. Allegations of exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded have to be proved by the person making such allegations.
14. Circumstantial evidence to prove the signature of the testator can lead to a legitimate conclusion only if it leads irresistibly to the inference that the person must have signed the document in question, but the presumption of execution of the Will by the testator on proof of the signature may be rebutted by proof of suspicious and unnatural circumstances.
15. The registration of the Will by the testator will be a strong circumstance to support the genuineness of the Will, but will not
APKR04000022202443/68 O.S.No.8 of 2024 by itself be sufficient to dispel all suspicions without subjecting the evidence of registration to a close scrutiny.
16. Onus as a determining factor of a case can only arise if the evidence pro and con is so evenly balanced that no conclusion can be derived therefrom, but not when a determinate conclusion can be arrived at after hearing and weighing the evidence.
17. The presumption under Section 90 of the Evidence Act in respect of a Will 30 years old and produced from proper custody, is one of due execution and attestation as well as of testamentary capacity of the testator, but does not extend to the truth of the contents of the Will.
18. To judge the credibility of the witnesses, the demeanour of the witnesses, surrounding circumstances and the probabilities arising out of the evidence and nature and contents of the document have to be looked into.
19. It is more usual to call a known and reliable person, a friend or a relation, to be a witness when a person is intending to execute a Will and advantage may be taken of the accidental presence of chance witnesses also in this connection.
20. It would be sufficient even if one attestor is examined, if he speaks about all the required elements.
21. The Court has the power to compare the disputed signature with the admitted signature, which power is available under Section 73 of the Evidence Act, but it should not normally take upon itself such responsibility and should leave the matter to the wisdom of experts in the event of slightest doubt.
22. If the Court is capable of forming an opinion on the strength of oral and documentary evidence by undertaking comparison under Section 73 of the Evidence Act, the necessity to send the document for expert's opinion may not arise and the opinion rendered by an expert being only a supporting material, the Court can come to its own independent conclusion.”
In a decision between Kavita Kanwar Vs. Mrs. Pamela Mehta 3 the Hon’ble Apex Court referred several decisions while appreciating the proof of will more particularly with 3 AIR 2020 SC 2614
APKR04000022202444/68 O.S.No.8 of 2024 regard to ‘Will’ said to have been surrounded with suspicious circumstances. The
Hon’ble Apex Court referring to proof of Will held as follows:
“It remains trite that a Will is the testamentary document that comes into operation after the death of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act makes the provision for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV) with which we are not concerned in this case.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator.It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
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21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether
In another decision between Rani Purnima Debi Vs. Kumar Khagendra Narayan Deb 4, the
Hon’ble Apex Court referred to the aforementioned decision in H. Venkatachala Iyengar
and further explained the principles which govern the proving of a Will as follows:
"5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443. It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, 4 AIR 1962 SC 567
APKR04000022202446/68 O.S.No.8 of 2024 what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind.
In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even when where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations."
In the case of Indu Bala Bose Vs. Manindra Chandra Bose 5, the Hon’ble Apex Court again observed as follows:
"7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court
before the court accepts the Will as genuine. Even where
circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the 5 AIR 1982 SC 133
APKR04000022202447/68 O.S.No.8 of 2024 dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
8. Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."
In another decision between Jaswant Kaur Vs. Smt. Amrit Kaur 6, the Hon’ble Apex Court while dealing with a Will shrouded in suspicion, held as follows:
"9.In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."
In a recent decision in Civil Appeal No. 6076 of 2009: Shivakumar and others v.
Sharanabasppa and others decided on 24.04.2020, the Hon’ble Apex Court, after traversing through the relevant decisions, summarized the principles governing the adjudicatory process concerning proof of a Will as follows:
6 AIR 1977 SC 74
APKR04000022202448/68 O.S.No.8 of 2024 "1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
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7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the defendants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
Keeping in view of the above principles, it is now relevant to examine what are the suspicious circumstances surrounding Ex.B1 will and whether the defendants 1 to 3 could able to remove the same. As already referred above, the defendants have propounded Ex.B1 will for the first time after receiving a notice under Order XII Rule 8
CPC and they have not filed the said document along with written statement. It is an undisputed fact that Ex.B1 will was said to have been executed by Jakka Parvathi long prior to her death i.e., on 25/09/2019 (Jakka Parvathi died on 11/05/2021). Dw.1
APKR04000022202450/68 O.S.No.8 of 2024 admitted in the cross-examination that Jakka Parvathi was hale and healthy and she died due to COVID-19. No material placed before the court to show what are the compelling circumstances that forced Jakka Parvathi to execute Ex.B1 will when she was hale and healthy. As rightly pointed out by the learned counsel for the plaintiff,
Ex.B1 will was prepared through a computer on a conquest paper and it consists of nine(9) pages. Before appreciating the evidence of Dw.1 on this aspect, it is relevant to scrutinize the evidence of Dw.2 who is one of the attestors. Dw.2 deposed in the cross- examination that Ex.B1 will does not contain any details as to who prepared the document like ‘scribed by’, ‘drafted by’. He deposed that he does not know on what basis Ex.B1 will was prepared. According to Dw.2, Ex.B1 will was prepared in the office of document writer by name Gopi, which is near to Sub-Registrar’s Office, Benz Circle,
Vijayawada. According to Dw.2, by the time he reached the office of Gopi, Ex.B1 will was already prepared and the document writer read over the contents of the will. It is quite common that whenever any document is prepared by a document writer, he would sign the document on the last page with the caption as ‘scribed by’ or ‘drafted by’.
In Ex.B1 will, the above column is conspicuously absent. When the plaintiff is seriously disputing the genuineness of Ex.B1 will, the defendants 1 to 3 ought to have taken steps to examine the document writer Gopi. If he is examined before the court the particulars as to who gave instructions for preparation of Ex.B1 will and on what basis the said document was prepared and who are all present at the time of execution of the said document, are all could be come to light because Ex.B1 will contains so many
APKR04000022202451/68 O.S.No.8 of 2024 details with regard to purchase of items 1 to 3 of suit schedule properties under registered sale deeds. It also contains the document numbers, details of properties,
Aadhar numbers, survey numbers and boundaries and therefore, without verification of relevant documents, it is quite difficult to prepare Ex.B1 will on just saying. All the above factors are silent and therefore, non-examination of scribe of Ex.B1 will is one of the circumstances to view the said document suspiciously.
22.Another important circumstance pointed out by the learned counsel for the plaintiff is that Ex.B1 at page No.9 it contains a recital about amalgamation of
Andhra Bank with Union Bank of India; with regard to fixed deposit made by Jakka
Parvathi and amount lying in savings bank account and also about nomination of defendants 2 and 3 for the said fixed deposits and savings bank account. He pointed out that as on the date of alleged execution of Ex.B1 will, there is no proposal to merge
Andhra Bank with Union Bank of India and therefore, it could be safely said that Ex.B1 will was created only after filing the present suit in collusion with the alleged attestor and scribe. The learned counsel for the defendants argued that even in the year 2019 itself there is wide publicity about amalgamation of Andhra Bank with Union Bank of
India and Jakka Parvathi was informed about the same and therefore, she got mentioned the name of Union Bank of India in Ex.B1 will. The above contention of the learned counsel for the defendants has no force since Andhra Bank and Corporation
Bank were amalgamated with Union Bank of India on 01/04/2020. The learned counsel for the plaintiff filed Wikipedia of amalgamation of Andhra Bank with Union Bank of
APKR04000022202452/68 O.S.No.8 of 2024
India wherein it was mentioned that the Union Finance Minister on 30/08/2019 announced that Andhra Bank and Corporation Bank will be merged with Union Bank of
India and the merger would come into effect from 04/03/2020 and completed by 01/04/2020. Since Andhra Bank was not merged with Union Bank as on the date of alleged execution of Ex.B1 will, it is not known how the testator has mentioned in Ex.B1 will that the Andhra Bank was already merged with Union Bank of India and the funds are lying with Union Bank of India under fixed deposit receipts and in savings bank account. Therefore, this suspicious circumstances could not be removed by the defendants 1 to 3.
23.Admittedly, Jakka Parvathi died on 11/05/2021. According to Dw.1 (during cross-examination), he came to know about execution of Ex.B1 will on the same day through the attestors viz., Dw.2 and Rama Rao. When that being so, Dw.1 might be having knowledge about execution of Ex.B1 will by his mother Jakka Parvathi on 25/09/2019. With regard to tracing of Ex.B1 will after the death of Jakka Parvathi, Dw.1 deposed that he found Ex.B1 will in the room of his mother in a steel almyrah and at that time, he along with the defendants 2 and 3, the plaintiff, Pw.1, his uncle and aunt were also present. If really Dw.1 found Ex.B1 will either on the same day i.e., on the date of death of Jakka Parvathi or after performing the last rites (పెద్ద�కర్మ�), why the defendants 1 to 3 did not take any steps to mutate their names in the municipal records in respect of items 1 and 3 of suit schedule properties. From the date of death of Jakka Parvathi i.e., from 11/05/2021, no mediation took place. Dw.1 deposed in the
APKR04000022202453/68 O.S.No.8 of 2024 cross-examination that after the death of his mother, they have not shown Ex.B1 will to the plaintiff. He also deposed that even as on today, the terms of Ex.B1 will did not come into force. There is no reason why the defendants 1 to 3 did not take any steps for implementing the terms of Ex.B1 will i.e., to change their names in the municipal records in respect of items 1 and 3 of suit schedule properties. There is no reason why the defendants have to secret Ex.B1 will. If really Jakka Parvathi has given item No.2 of suit schedule property to the plaintiff with rights of enjoyment and it is well within the knowledge of everybody in the family and the same is reflected in Ex.B1 will, there is no reason why they hided Ex.B1 will from the knowledge of plaintiff. This is one of the circumstance to view Ex.B1 will suspiciously and the same was not removed by the defendants with any plausible explanation.
24.As rightly pointed out by the learned counsel for the plaintiff, if really
Ex.B1 will was executed by the testator on 25/09/2019 (about six years back), the appearance of the said document should look as if it is six (6) years old document but a perusal of Ex.B1 will even by a layman, he would say without any hesitation that this document was prepared very recently. The conquest papers on which Ex.B1 will was prepared looks fresh, throwing an impression that this document might have been prepared in recent past.
25.Keeping in view of the above facts and circumstances, it is now relevant to scrutinize the evidence of Dw.2 who is one of the attestors of Ex.B1. Dw.2 admitted in the cross-examination that he is a childhood friend of 1st defendant and classmate.
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According to Dw.2, he is one of the subscribers of the chit run by Jakka Parvathi. Except his self-serving statement, Dw.2 has not filed any other proof to prove the above said fact. Dw.2 also did not state anything about the particulars of chit value, the period of chit and his acquaintance with Jakka Parvathi. Dw.2 claimed that one day prior to execution of Ex.B1 will, Jakka Parvathi informed him that she is going to execute a will and requested him to attest the document. According to Dw.2, he went to the office of document writer Gopi in the afternoon at 12.00 or 01:00 PM. By the time he reached the office, Rama Rao was also present and the document was already prepared. The above evidence of Dw.2 does not inspire confidence of the court for the reason that
Jakka Parvathi is doing real estate and finance business and could have secured the presence of persons of her age in the same locality and there is no necessity to secure the presence of Dw.2 who is the childhood friend and classmate of Dw.1. On this aspect, the evidence of Dw.1(D1) is that Dw.2 is his friend and he used to meet him regularly. According to Dw.1, Dw.2 and Rama Rao informed him about the execution of
Ex.B1 will by his mother and he did not enquire where, when and with whom Ex.B1 will was prepared. The above evidence of Dw.1 is unbelievable since as a son, he would have naturally enquired his friends about the contents of the document which was executed by his mother with regard to her properties. Non-inquiring anything about the document and other particulars, raises any amount of suspicion. With regard to second attestor Rama Rao, Dw.1 claimed that he has got close acquaintance with him and used to meet him regularly in the same bazaar. In all probabilities, the 1st
APKR04000022202455/68 O.S.No.8 of 2024 defendant might have used Dw.2 and Rama Rao in creating Ex.B1 will. The attestation of Ex.B1 will by Dw.2 as spoken to by him in the evidence does not inspire confidence of the court for more than one reason viz., he is a close friend of Dw.1 and non- examination of document writer Gopi by the defendants. Considering the above facts and circumstances, this court holds that there are suspicious circumstances surrounding Ex.B1 will and the same could not be removed by the defendants 1 to 3 with any convincing explanation or evidence. The evidence of Dw.2 with regard to his attestation of Ex.B1 will is also doubtful and unbelievable. When the plaintiff is denying the execution of Ex.B1 will by Jakka Parvathi and also denying her signatures, the defendants ought to have taken steps to send Ex.B1 will to the handwriting expert for comparison and opinion. The initial burden lies upon the defendants who are the propounders to prove the document and then only the burden shifts upon to the plaintiffs to disprove Ex.B1 will. In the present case on hand, the defendants 1 to 3 have not taken any steps to send Ex.B1 will to the handwriting expert for comparison and opinion. Under Section 73 of Indian Evidence Act, when both parties did not take any steps to send the disputed document to the handwriting expert for comparison and opinion, the court can compare the same with available records. In a decision between Lalit Popli vs Canara Bank and Others7, the Hon’ble Supreme Court held as follows:
“13. Sections 45 and 73 of the Indian Evidence Act, 1872(in short 'the Evidence Act') deal with opinion of experts and comparison of signature, writing or seal with others admitted or proved. Section 45
7. AIR 2003 SUPREME COURT 1796
APKR04000022202456/68 O.S.No.8 of 2024 itself provides that the opinions are relevant facts. It is a general rule that the opinion of witnesses possessing peculiar skill is admissible. There was no challenge to the expertise of V.K. Sakhuja. He deposed to have testified in about ten thousand cases relating to disputed documents. Though the employee highlighted certain adverse remarks, it cannot be lost sight of that they were about four decades back. But we need not go into that aspect in detail as no infirmity in the report acted upon by the authority in the present case was noticed or could be pointed out.
14. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there, Court has power to compare the writings and signature and decide the matter.”
Applying the above principle to the facts of the present case on hand, let us examine whether the signatures appearing on disputed Ex.B1 Will belong to Jakka Parvathi or not. This court is having admitted signatures of Jakka Parvathi on Exs.A3 and A4 sale deeds (in the last pages i.e., on the Aadhaar card) and a comparison of the said signatures with the signatures appearing on Ex.B1 will, even a layman can say that the person whose signatures are found on Aadhar cards of Jakka Parvathi appearing on
Exs.A3 and A4 sale deeds did not sign on Ex.B1 will. There is lot of difference between
APKR04000022202457/68 O.S.No.8 of 2024 the admitted signatures of Jakka Parvathi appearing on Exs.A3 and A4 sale deeds with that of Ex.B1 will. Viewed from any angle, this court holds that the defendants failed to prove Ex.B1 will as a genuine document and failed to remove the suspicious circumstances surrounding the said document.
26. Ignoring Ex.B1 will, now it is relevant to examine whether the amounts claimed by the defendants 2 and 3 from 4th defendant-bank as nominee and also as a legatee under Ex.B1 will, is valid. According to 4th defendant-bank. Jakka Parvathi made fixed deposit under FDR No.042420100213601 and there was credit balance of
Rs.6,67,644/- and the same was settled in favour of 2nd defendant on 17/04/2023 as he is the nominee for the said amount. It is further contended that Jakka Parvathi is having another FDR No.042420100073207 and the current matured amount is
Rs.3,48,686/- as on 31/03/2024 and in view of nomination of 3rd defendant, he is entitled to receive the same as per banking norms. It is further contended that Jakka
Parvathi is having savings bank account No.042410011007680 with a credit balance of
Rs.4,18,859.72 paise and the same was settled in favour of 3rd defendant being a nominee on 24/09/2021. To the above said fact, they have produced Exs.B2 to B4.
During evidence, for the first time Dw.1 corroborated the contentions of 4th defendant.
However, the fact remains that one fixed deposit amount of Rs.6,67,644/- and savings bank account of Rs.4,18,859.72 paise was already settled in favour of defendants 2 and
3. Now, it is relevant to examine what is the role of nominee upon the death of account holder. The provisions with respect to nomination are found in Section 109(A) of
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Companies Act, 1959. As per the banking rules; nominee is entitled to be paid the sum to the exclusion of all other persons on the death of the person who is nominated.
Section 45(Z)(A) of Banking Regulation Act 1949 provides as follows:
Nomination for payment of depositors’ money:-
(1) Where a deposit is held by a banking company to the credit of one or more persons, the depositor or, as the case may be, all the depositors together, may nominate, in the prescribed manner, to whom in the event of the death of the sole depositor or the death of all the depositors, the amount of deposit may be returned by the banking company.
(2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount of deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.
(3) Where the nominee is a minor, it shall be lawful for the depositor making the nomination to appoint in the prescribed manner any person to receive the amount of deposit in the event of his death during the minority of the nominee.
(4) Payment by a banking company in accordance with the provisions of this section shall constitute a full discharge to the banking company of its liability in respect of the deposit:
Provided that nothing contained in this sub-section shall affect the right or claim which any person may have against the person to whom any payment is made under this section.
Therefore, it is clear from the above provisions that the provisions of nomination in the banking regulation act is clearly incorporated for the purpose of discharging the liability of the banking company. The nominee does not receive the sum to the
APKR04000022202459/68 O.S.No.8 of 2024 exclusion of all other heirs and the creditors, heirs, etc., and they would still be entitled to claim under the sum that the nominee has received. In a decision between Smt.
Sarabati Devi and Anr. Vs. Smt. Usha Devi8 the Hon’ble Supreme Court while dealing with
Section 39 of Insurance Act and the rights of a nominee under a Insurance Policy held as follows:
“Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauja Singh's case (supra) and in Mrs. Uma Sehgal's case (supra) do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of section 39 of the Act and hold that a mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy, The amount; however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. In view of the above conclusion, the judgments and decrees of the High Court, the first appellate court and the trial court are liable to be set aside. They are accordingly set aside. Since it is not disputed that the plaintiffs are under the law of succession governing them each entitled to 1/3 share in the estate of the deceased, it is hereby declared that each of the plaintiffs is entitled to 1/3rd share in the amount received under the insurance policies in question and the interest which may have
8. (1984) 1 SCR 992
APKR04000022202460/68 O.S.No.8 of 2024 been earned by its investment. The suit stands decreed accordingly.”
Applying the above principle to the facts of the present case on hand, this court is of the view that merely because the defendants 2 and 3 are nominated to receive the amounts kept as fixed deposit and amounts lying in the savings bank account, they cannot receive the same excluding the other legal heirs unless the same was deposited by any testamentary document. In the present case on hand, the defendants appear to have produced Ex.B1 will to claim the sums deposited with 4th defendant-bank as fixed deposit and kept in savings bank account. This court already held that Ex.B1 will is not proved as genuine document and the defendants could not remove suspicious circumstances surrounding the said document and therefore, basing on Ex.B1 will, the defendants 1 to 3 cannot share the amounts that were kept in 4th defendant-bank to the exclusion of plaintiff. The plaintiff is also entitled to get a share in the fixed deposits in the amounts kept in savings bank account as one of the sharer.
27.Though the plaintiff and defendants have raised so many contentions with regard to financial assistance said to have been rendered by Pw.1 to Jakka
Parvathi at the time of construction of building in item No.1 of suit schedule property; at the time of establishment of shop by 1st defendant, purchase of autos by the defendants 2 and 3, the same remained as an allegation without any proof. In other words, either the plaintiff or Pw.1 failed to adduce any documentary evidence to prove the said facts. Coming to the case of the defendants, they contended that they also helped the plaintiff financially to educate her children; to perform the marriage of her
APKR04000022202461/68 O.S.No.8 of 2024 daughter Durgamba and it is their moral obligations caste upon them, no documentary evidence is produced to prove the above said facts. Even other wise the financial assistance rendered by both parties to one another for any family necessities, are no way relevant to the fact in issue involved in the suit and they would not come in the way either to deny share to the plaintiff or to consider any share to the defendants.
Considering the above facts and circumstances, when Ex.B1 will is disbelieved by the court, it is to be considered that items 1 to 4 of suit schedule properties are self- acquired properties of Jakka Parvathi who is a Hindu woman. Therefore, Sections 14 and 15 of Hindu Succession Act, 1956 comes into play. Sections 14 and 15 of the said
Act reads as follows:
14. Property of a female Hindu to be her absolute propert y :- (1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her
as full owner thereof and not as a limited owner. Explanation:- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or exertion, or by
purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
15. 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:
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a) firstly, upon the sons and daughters (including the children of any pre-deceased 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 pre-deceased 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 father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law 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.
Applying the above principles to the facts of the present case on hand, as the husband of Jakka Parvathi predeceased her and after the death of Jakka Parvathi, the plaintiff and the defendants 1 to 3 are the only legal heirs to succeed her estate and items 1 to 4 of suit schedule property devolves upon them. The plaintiff being the daughter and the defendants 1 to 3 being the sons are each entitled to 1/4th share.
28.The last penultimate aspect to be decided is with regard to legal status of Pw.1 to represent the plaintiff and to give evidence. The plaintiff claimed in the plaint that she is dumb and cannot speak and that her husband is looking after her all issues and he is having personal knowledge about the facts and therefore, she appointed him as her power of attorney to conduct suit proceedings and to give evidence. The defendants are denying the condition of the plaintiff as dumb and
APKR04000022202463/68 O.S.No.8 of 2024 contended that she could able to speak slowly and understand and therefore, there is no necessity for the plaintiff to appoint Pw.1 as her GPA holder and that it is Pw.1 and his mother who are instrumental in filing the present suit. On this aspect, Pw.1 was subjected to cross-examination wherein he categorically deposed that he knows all the facts of the suit personally. Merely because the plaintiff has appointed her husband as a GPA holder to conduct the proceedings and to give evidence, her suit cannot be non- suited on that ground. Under Order III Rule 5 any party to the suit can appoint a power of attorney to conduct the proceedings and to give evidence. In this suit, Pw.1 time and again deposed that he has got personal knowledge about all the facts of the suit and he accompanied the plaintiff to the counsel’s office at the time of issuing Ex.A8 legal notice and at the time of preparing the plaint. Merely because the plaintiff has not filed any Doctor certificate to show her dumbness, the GPA executed by her in favour of
Pw.1 cannot be thrown out or rejected. Along with the suit the plaintiff has filed
I.A.No.62 of 2024 under Rule 32 of Civil Rules of Practice seeking permission to represent the plaintiff through her husband and the same was allowed and the said order was not challenged by the defendants and became final. Now the defendants are estopped to question the same at the stage of trial when Pw.1 is giving evidence in his personal capacity on the facts which are within his personal knowledge. Therefore, it cannot be said that Pw.1 has stepped into the shoes of plaintiff and gave evidence on her behalf. Consequently, the contentions raised by the defendants 1 to 4 with regard to legal status of Pw.1 to represent the plaintiff and to give evidence, cannot be found
APKR04000022202464/68 O.S.No.8 of 2024 fault. Considering the above facts and circumstances, these issues are answered accordingly holding that Ex.B1 will is not a genuine document, not proved and it is surrounded by suspicious circumstances which were failed to remove. Hence, these issues are answered in favour of the plaintiff and against the defendants.
29.ADDITIONAL ISSUE No.3:- Since the plaintiff is one of the sharer along with defendants 1 to 3, till such time, the properties are legally divided between the family members by following the provisions of Hindu Succession Act, each sharer is presumed to be in joint possession and enjoyment of joint family properties and possession of one sharer amounts to possession of other sharers and therefore, the court fee paid by the plaintiff under Section 34(1) of the Act is correct. This issue is answered accordingly in favour of the plaintiff and against the defendants.
30.ISSUE No.2:- A perusal of pleadings and evidence adduced by both parties, it is quite clear that item No.4 of suit schedule property being fixed deposits and amounts lying in the savings bank account were deposited in 4th defendant-bank and the plaintiff is seeking share in the said fixed deposit and the amount lying in the savings bank account. Therefore, it cannot be said that the 4th defendant is not a necessary and proper party to the suit. Even though no relief is claimed against 4th defendant-bank, in view of nature of relief sought for by the plaintiff seeking partition of amounts lying in 4th defendant-bank, it is a necessary and proper party to the suit.
This issue is answered accordingly in favour of the plaintiff and against the defendants.
APKR04000022202465/68 O.S.No.8 of 2024
31.I SSUE No.1:- In view of my findings on additional issues 1, 2 dated 27/11/2024, additional issues 1 to 3 dated 26/03/2025, the plaintiff is entitled for partition of items 1 to 4 of suit schedule properties into four equal shares and allotment of one such share to her. This issue is answered accordingly.
32.I SSUE No.3:- In view of my findings on issue Nos.1 and 2, additional issue Nos.1 to 3 dated 27/11/2024 and additional issue Nos.1 to 3 dated 26/03/2025, the suit of the plaintiff is to be decreed preliminarily.
33.In the result, the suit is preliminarily decreed with costs ordering partition of item Nos.1 to 4 of suit schedule properties into four equal shares and the plaintiff, defendants 1 to 3 hereby are allotted 1/4th share each by taking into consideration of good and bad qualities.
Dictated to the Stenographer, after transcription, corrected and pronounced by me in the
Open Court, on this the 27 th day of February, 2026.
SD/- K.P. SAIRAM,
VI ADDL. CIVIL JUDGE(SENIOR DIVISION),
VIJAYAWADA.
APPENDIX OF EVIDENCE
Witness examined on behalf of
Plaintiff:Defendant s : Pw.1: Damarla VenkataratnamDw.1: Jakka Venkata Naga Kumar Dw.2: Devabhaktuni Srinivasa Rao Dw.3: Vikas Kumar Singh
DOCUMENTS MARKED ON BEHALF OF
Plaintiff:- Ex.A122/12/2004Certified copy of registered sale deed bearing document No.4796/2004 executed by Koneru Omkaram in favour of Jakka Parvathi (item No.1 of suit schedule property).
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Ex.A205/12/2001Certified copy of registered sale deed bearing document No.3959/2001 executed by S. Radhika in favour of Jakka Parvathi (item No.2 of suit schedule property).
Ex.A324/01/2018Certified copy of registered sale deed bearing document No.800/2018 executed by Sk. Aminabi in favour of Jakka Parvathi (part of item No.3 of suit schedule property).
Ex.A424/01/2018Certified copy of registered sale deed bearing document No.802/2018 executed by Shaik Akbar in favour of Jakka Parvathi (part of item No.3 of suit schedule property).
Ex.A517/09/2010Copy of death certificate of Jakka Surya Appa Rao issued by Vijayawada Municipal Corporation.
Ex.A621/04/2023Receipt issued by Vijayawada Municipal Corporation for payment of property tax to the house bearing assessment No.1073132470 issued in favour of Jakka Parvathi.
Ex.A701/05/2023Receipt issued by Vijayawada Municipal Corporation for payment of property tax to the house bearing assessment No.1192009130 issued in favour of Jakka Parvathi.
Ex.A825/10/2023Office copy of legal notice issued by the plaintiff to the defendants 1 to 4.
Ex.A927/10/2023Served postal acknowledgment of 1st defendant.
Ex.A1027/10/2023Served postal acknowledgment of 2nd defendant.
Ex.A1127/10/2023Served postal acknowledgment of 3rd defendant.
Ex.A1226/10/2023Served postal acknowledgment of 4th defendant.
Ex.A1326/10/2023Market value certificate issued by SRO, Patmata for item No.1 of suit schedule property.
Ex.A1431/10/2023Market value certificate issued by SRO, Kankipadu for item No.2 of suit schedule property.
Ex.A1526/10/2023Market value certificate issued by SRO, Patmata for item No.3 of suit schedule property.
APKR04000022202467/68 O.S.No.8 of 2024
Ex.A1606/11/2023General Power of Attorney executed by the plaintiff in favour of plaintiff.
Ex.A1724/02/2025Requisition submitted by plaintiff’s counsel to the 4th defendant under RTI Act.
Ex.A1805/03/2025Reply notice issued by regional manager, Union Bank of India, Vijayawada to the plaintiff’s counsel.
Ex.A1901/04/2025Requisition submitted by plaintiff’s counsel to the 4th defendant under RTI Act.
Ex.A2001/04/2025Office copy of legal notice issued by the plaintiff to the regional Manager, Union Bank of India, Vijayawada marking copies of the same to the other official of 4th defendant.
Ex.A2119/04/2025Copy of letter received from Regional office of 4th defendant-bank in reply to application of Pw.1 under RTI Act along with enclosures (Xerox copy of application of claimant, claim form, check list of document, application for account opening form for term deposit, nomination form, front page of bank passbook, copy of aadhar card, copy of death certificate of Jakka Parvathi and her Aadhar card and copy of Aadhar card of Jakka Durga Prasad).
Ex.A2219/07/2021Xerox copy of family member certificate obtained through meeseva.
Defendants:-
Ex.B125/09/2019Original unregistered will executed by Jakka Parvathi in favour of the plaintiff.
Ex.B210/04/2024Attested copy of transaction namely relating to FDR No.042420100213601 of Jakka Parvathi which was settled to 2nd defendant who is shown as nominee and the settled amount is Rs.6,67,644/-.
Ex.B312/04/2024Attested copy of bank statement of Jakka Parvathi being maintained by 4th defendant-bank for FDR No.042420100073207 covering the period from 01/01/2021 to 10/04/2024 along with nomination form issued in favour of 3rd defendant.
Ex.B412/04/2024Attested copy of bank statement of Jakka Parvathi being maintained by
APKR04000022202468/68 O.S.No.8 of 2024 4thdefendant for the savings bank account bearing No.0424100011007680 covering the period from 01/01/2021 to 24/09/2021 along with nomination form standing in the name of 3rd defendant.
SD/- K.P. SAIRAM,
VI ADDL. CIVIL JUDGE(SENIOR DIVISION),
VIJAYAWADA.