K. Sreenivasa Rao

1

In the Court of the XIII Addl. District Judge: Narasaraopet,

Present:-Sri K. Sreenivasa Rao, XIII Addl. District Judge, Narasaraopet,

Wednesday, this the 28th day of April, 2021,

Original Suit No.43 of 2015

Between:

1.Ila Yamuna Roy, w/o Pendyala Naga Suresh, Hindu, aged 20 years, R/o D.No.6/28,(present D.No.13-4-63/12) Pedakakani Village and Mandal, Guntur District.

2.Ila Dhanalakshmi(died on 10.11.19) (Amended as per orders dt.7.2.2020 in IA.No.1262/2019) …Plaintiff AND

1.Ila Subbamma, w/o late Brahmaiah, aged 68 years, R/o D.No.13-4-63/12, Vengalareddynagar, Kotappakonda Road, Narasaraopet.

2.Ila Bhulakshmi, w/o not known, aged 45 years, Hindu, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

3.Ravuri Govardhani, w/o Balakrishna, Hindu, aged 23 years, R/o Uppalapadu Village, Narasaraopet Mandal, Guntur District.

4.Ila Venkata Satyanarayana, s/o late Siva Rama Krishna @ Siva Rama Krishnaiah, Hindu, aged 24 years, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

5.Ila Bhavannarayana, s/o late Siva Rama Krishna @ Siva Rama Krishnaiah, Hindu, aged 12 years, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

6.Ila Ramanjaneyulu, s/o late Siva Rama Krishna @ Siva Rama Krishnaiah, Hindu, aged 22 years, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

7.Ravuri Bala Krishna, s/o Veeranjaneyulu, Hindu, R/o Uppalapadu Village, Narasaraopet Mandal.

8.Koppula Lakshmi, w/o Nageswara Rao, Hindu, aged 47 years, Milk Business, R/o 20-5-24, Ila Bazaar, Narasaraopet.

9.Alla Eswaramma, w/o Venkata Rao, Hindu, aged 45 years, Housewife, R/o 3-70/A, Yarraguntlapadu Village, Phirangipuram Mandal.

10.Thota Krishna Kumari, w/o Mallikharjuna Rao, Hindu, aged 35 years, Housewife, R/o D.No.20-5-22, Ila Bazaar, Narasaraopet. (defendants 8,9 and 10 are added as per orders in I.A.363 of 2017)

...Defendants

2

This suit is coming on 16.04.2021 before me for arguments in the presence of Sri B.M.N.Murthy, Advocate for the Plaintiffs and of Sri

G.L.V.Ramana Murthy, Advocate for the defendants 2 to 7 and of defendants 1 and 8 to 10 having remained exparte, upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This suit is originally filed for partition of the suit schedule properties into 2 equal shares and for allotment of half share to the plaintiffs. Later the 2nd plaintiff Ila Dhana Lakshmi, minor represented by the mother died. The plaint was amended seeking partition of the suit schedule properties into two equal shares and for allotment of half share to the 1st plaintiff. The plaintiffs also want half share in the future profits.

The suit is also filed for cancellation of gift deed No.1496/2012, dt.06.02.2012 before SRO, Narasaraopet executed by D2 in favour of D3 and D7 and sale deed No.15097/2006 dt.30.12.2006 before SRO,

Narasaraopet in favour of D2 from the vendor of Ila Brahmaiah as they are null and void.

02.Originally, the suit was filed against the defendants 1 to 7.

Later D8 to D10 who are the daughters of Braihmaiah were added by way of amendment.

03.It is the plaintiffs' case that they are the daughters of Ila Siva

Rama Krishna @ Siva Rama Krishnaiah and Ila Venkatravamma. The marriage between Ila Siva Rama Krishna and Ila Venkatravamma took place in the year 1997 at Pedakakani, Guntur District. The plaintiffs' mother Ila

Venkatravamma is the legitimate wife of Ila Siva Rama Krishnaiah, who is 3 no more now. 1st defendant is mother of Ila Siva Rama Krishna and the plaintiff's paternal grand mother. Ila Siva Rama Krishna had a kept mistress who is D2 by name Bhulakshmi and she is unfortunately called as Ila

Bhulakshmi. D3 to D6 are the children of Ila siva Rama Krishna through

Bhulakshmi. D7 is husband of D3.

04.Suit schedule properties are the properties of Hindu undivided joint family of Ila Brahmaiah who is the father of Ila Siva Rama Krishna.

The plaintiffs are the legitimate children of Ila Siva Rama Krishna and Ila

Venkatravamma. Therefore, the plaintiffs are the joint family members of

Ila Brahmaiah being the coparceners. D2 taking advantage of her position, used to take undue advantage over D1, who is mother of Siva Rama

Krishnaiah. The plaintiffs' mother being not supported by any assistance could not come to know of the correct picture of properties of her family and she made her attempts for her children for partition of the suit schedule properties without descriptive particulars of the same and so she could not succeed in her attempts and she was advised to seek for partition of the properties with correct description of the properties. D2 is trying to snatch away the properties of Ila Brahmaiah and therefore, the plaintiffs mother requested D2 not to do so and to effect the partition of the properties among the children of Siva Rama krishnaiah. But D2 with an evil thought brought into existence a fictitious document i.e. gift deed dt.06.02.2012 in favour of her daughter D3 and D7 in respect of Ac.0.50 cents without any legal sanctity.

05.Ila Brahmaiah acquired item No.1 of schedule property under sale deed dt.11.07.1991, Item No.2 by sale deed dt.02.05.1991 and item 4

No.3 by sale deed dt.02.05.1991. He acquired item No.4 also but did not obtain proper sale deed till his death. Later D2 influenced the vendor and black-mailed him and obtained the sale deed dt.30.12.2006 which is not creating any right over the 2nd defendant. Therefore, the said gift deed and sale deed are to be cancelled. After the demise of 2nd plaintiff on 10.11.2019, the sole 1st plaintiff and D3 to D6 are in joint possession and enjoyment of the suit schedule properties after the demise of Ila Siva

Rama Krishna. As the defendants contended in the written statement that the daughters of Peda Brahmam were not added, they are added as D8 to

D10 as per orders in IA.No.363/2017. After the demise of 2nd plaintiff, the 1st plaintiff is in joint and peaceful possession of the suit schedule properties. Hence, the suit.

06.The 1st defendant remained exparte.

07.Written statement was filed by the defendants 2 to 7 stating that Venkatravamma is not a legally wedded wife of Siva Rama Krishnaiah and the plaintiffs are not legitimate children born through

Venkatravamma. Therefore, the plaintiffs are not entitled for any moiety, much less, half share in the estate of Siva Rama Krishnaiah. The 2nd defendant Venkata Bhulakshmi is the daughter of Yellamanda of Peta

Sannigandla Village. Siva Rama Krishnaiah married 2nd defendant

Bhulakshmi as per Hindu Dharma Sastras and customs of the family at

Narasaraopet in front of their residential house and the same was witnessed by relatives and neighbours. The said marriage is legitimate and legal. D3 to D6 are born through Siva Rama Krishnaiah and D2 and they are the legal heirs to the estate of Siva Rama Krishnaiah along with D1 mother 5 and D2 being the wife of Siva Rama Krishnaiah under the Hindu Succession

Act. Peda Brahmaiah @ Brahmaiah was commission agent in Lal Bahadur

Vegetable Market, Narasaraopet where Siva Rama Krishnaiah used to attend and assist his father. After the death of Peda Brahmaiah, Siva Rama

Krishnaiah continued the said business. Venkatravamma used to sell lime fruits at the said market.

08.Plaintiffs' herein along with Venkatravamma filed OS.No.23 of 2013 on the file of this Court for partition including the daughters of

Brahmaiah and his wife as defendants omitting the defendants 3 to 7. In the said suit the plaintiffs sought for partition of 6 items of the properties which are not reflected in the present suit. On the other hand, this suit is bad for partial partition of the estate of the family properties and therefore, liable to be dismissed with costs. Moreover, when the plaintiffs filed OS.No.23 of 2013 impleading the daughters of Brahmam and omitting them in this suit results this suit in bad for non joinder of necessary parties and the suit is liable to be dismissed. D2 obtained registered sale deed in her name for Item No.4. D2 gifted Ac.0.50 cents of land out of item No.4 in favour of D3 and D7 in the year 2012 and the suit is not maintainable without seeking the cancellation of the said documents. For the cancellation of the gift deed dt.06.02.2012, no court fee was paid separately and therefore, frame of the suit is bad. The prayer for declaration of the document is nominal and not maintainable under law.

The plaintiffs are not in joint possession of the suit schedule properties and therefore , the Court fee paid under Sec.34(2) of APCF and SV Act is not correct.

6

09.Item No.1 was purchased by Peda Brahmaiah under sale deed, dt.11.07.1997. Item No.2 was purchased originally by K.Bhulakshmi from

Chintha Venkateswarlu by sale deed dt.09.10.1967. From K.Bhulakshmi it was purchased by Peda Brahmaiah. Item No.3 was purchased by Peda

Brahmamam from Chinta Punnaiah under sale deed dt.02.05.1991.

Brahmam in his life time purchased item No.4 from Kotha Pandurangarao but not obtained sale deed. On the request of D2, son of Kotha

Satyanarayana executed the registered sale deed dt.30.12.2006 in favour of D2. Thus, they are the self-acquired and separate properties of

Brahmam.

10.Ila Brahmaiah, in his life time, executed the last Will and testament on 06.07.1996 in a sound and disposing state of mind and later he died on 06.07.1996. The Will came into operation. As per the said testament, D1 has obtained the registered sale deed from him and enjoyed the said property without power of alienation and after her death it should devolve upon the defendants 4 to 6. Thus, item No.4 of plaint schedule property, though standing in the name of D2, belongs to D4 to D6 and therefore, it is not the property of Siva Rama Krishnaiah and thus, the plaintiffs have no right in the said property. In the plaint, 1st defendant was not given any share. She, being the mother of Siva Rama Krishnaiah and wife of Peda Brahmam, is entitled for a legal share in the properties.

Further, D2 is also entitled for a share being the wife of Siva Rama

Krishnaiah.

11.Rejoinder was filed by plaintiff stating that necessary Court fee was paid. Further the alleged Will dt.06.07.1996 said to be executed 7 by Brahmam is not true, correct and valid and not binding upon the plaintiffs. The defendants got filed the written statement on the basis of concocted Will dt.06.07.1996.

12.Basing on the above pleadings, the following issues are settled for trial:

1.Whether the Will dt.06.07.1996 propounded by the defendants is true and correct and binding on the plaintiff?

2.Whether the plaintiff is entitled to the partition of the schedule property as prayed for?

3.To what relief?

13.On behalf of the plaintiff, P.W.1 to P.W.4 were examined and

Ex.A1 to Ex.A21 were marked. On behalf of the defendants, DW1 to D.W.3 were examined and Ex.B1 to Ex.B3 were marked.

14.Heard the arguments.

15.ISSUES 1 AND 2:

There is serious contest between the parties regarding the marriage of Ila Siva Rama Krishna with PW1 Ila Venkataravamma or 2nd defendant Bhulakshmi. Consequently, the legitimacy of the plaintiffs is questioned by the defendants. There is no dispute that Ila Brahmaiah has a son Ila Siva Rama Krishna and 3 daughters, who are subsequently shown as

D8 to D10 by way of amendment in IA.No.363/2017 dt.15.2.2018. It is said by PW1 that Ila Siva Rama Krishna married her in the year 1987 at Peda

Kakani Village, Guntur District and Ex.A1 is the marriage certificate dt.07.04.2013 issued by Hereditary Trustee of Sri Vuyyuru Veeramma

Perantallu temple, Pedakakani Village, Guntur District stating that their marriage took place at 10.00 am on 09.08.1987 at the temple and it is a love marriage. This marriage has been disputed by the 2nd defendant 8 stating that she only is the legally wedded wife of Siva Rama Krishna. In support of the contention of Bhulakshmi(D2), she filed Ex.B2/ Five photos and Ex.B3/Video cassette along with CD. Therefore, the burden lies upon both parties to establish that either of them is the legally wedded wife of

Siva Rama Krishnaiah, who is no more now. First, let us see about the marriage of PW1 with Siva Rama Krishna. It is contended by PW1 that Ila

Siva Rama Krishnaiah had a kept mistress, who is no other than 2nd defendant Bhulakshmi andtherefore, D3 to D6 born through them are not legitimate children. There is no dispute that D7 is the husband of D3.

16.On the other hand, it is contended by the defendants that PW1 is not the legally wedded wife of Siva Rama Krishna and D2 alone is his legitimate wife. It is mentioned in the first page of PW1 evidence affidavit that in the neat copy of plaint filed, they have mistakenly mentioned that the marriage took place in the year 1997. In the original plaint, it is mentioned that the marriage between PW1 and Siva Rama Krishna took place in the year 1987. It is true that the neat copy of plaint dt.01.03.2018 shows that marriage between Ila Siva Rama Krishna and Venkataravamma took place in the year 1997 at ---- and there was a space left, admitted by

PW1.As per PW1, Ex.A1 is the only document to show her marriage with

Siva Rama Krishna,dt. 09.08.1987. Their marriage is love marriage but not arranged marriage, said by PW1. There is no dispute that the father of Siva

Rama Krishna, by name Brahmaiah was carrying on vegetables business in the market, Narasaraopet where also PW1’s mother used to sell the limes.

As PW1’s mother was staying at that time PW1 stayed with her and as such, she got acquaintance with Siva Rama Krishna. Siva Rama Krishna sits in the 9 vegetable market as his father was having commission shop in the market.

PW1 used to assist her mother who used to sell the lemon fruits and in that course of event, PW1 got acquaintance with Siva Rama Krishna. At the time of marriage PW1 was 18 years old. One year after her acquaintance with Siva Rama Krishna she married him. PW1 does not know whether the temple where they were married was included in the Endowments

Department. No witness attested Ex.A1 document at that time. In fact,

Ex.A1 is marriage certificate issued by the temple authorities and it does not require attestation under law. There are no photographs or videograph showing her marriage with Siva Rama Krishna. Through Siva Rama Krishna,

PW1 came to know about his family details.

17.PW1 does not have birth certificate of 1st plaintiff. She is having birth certificate of 2nd plaintiff but it is in the school. She got marked Ex.A5 Study Certificate of 2nd plaintiff issued by Head Master,

Municipal Girls High school dt.22.12.2014, Ex.A18 Study cum Conduct certificate of 1st plaintiff issued by Hird Junior College for Women,

Narasaraopet dt.19.12.2018 and Ex.A19 Study cum Conduct certificate of 2nd plaintiff issued by Head Mistress, Municipal Girls High school,

Narasaraopet dt.18.12.18 wherein they are shown as daughters of Ila Siva

Rama Krishna/ Venkataravamma. It is true that nobody was examined to prove these exhibits, as contended by the learned defendants' counsel.

PW1 went to Pedakakani for delivery purpose where her sister was there.

There is no substance in the contention of the learned defendants' counsel that Ex.A5, Ex.A18 and Ex.A19 were created at Pedakakani, as such.

10

18.The learned defendants counsel cited in C.Doddanarayana

Reddy(dead) by LRs and others Vs. C. Jayarama Reddy(dead) by LRs and

others (2020(2) ALT 36(SC) that there is no evidence to show that the entry of the date of birth was made by the official in-charge, which alone would make it admissible as evidence under Section 35 of the Indian

Evidence Act, 1872.

19.PW2 is 2nd plaintiff, aged 18 years and she was alive as on the date of evidence on 26.03.2019. Later she died. Originally she was represented by mother being minor in the suit. According to PW2, she studied at Guntur and she depended upon her mother because she is her care taker. As per her, PW1 knows everything regarding the properties and the rights of the plaintiffs in the properties. Whatever her mother PW1 says in this suit is her case and her evidence and she has no further say in the matter.

20.PW3 said that she knew Ila Venkataravamma and Siva Rama

Krishna and they are the parents of the plaintiffs. The said couple were his tenants since 1990 till the year 2000 as she let out some portion of his house to them. However, it is seen from the cross examination of PW3 that

PW1 did not tell him that herself and Siva Rama Krishna were living as wife and husband. It is seen from PW3 that there is no lease deed between him and PW1. His house is daba house consisting of two rooms. He knew the family matters of plaintiffs even before they came to his house. It is said by PW3 also that Siva Rama Krishna was doing wholesale vegetable business in the market.

11

21.PW4 stated that the marriage between Ila Siva Rama Krishna and PW1 is love marriage. The husband of PW4 and PW4 herself were tenants of PW3, said by PW4 in the chief examination. But in the cross examination PW4 stated that parents of plaintiffs came as tenants in the house opposite to their house. Admittedly, there is no rental agreement between PW4 and her owners. Thus, the plaintiffs examined PW3 and PW4, in order to prove that there is a marriage between Ila Siva Rama Krishna and PW1.

22.It is seriously contested by DW1 Ila Venkata Satyanarayana, s/o

Siva Rama Krishnaiah(D4) stating that there was no marriage between Siva

Rama Krishna and PW1. However, DW1 admitted that Ex.A1 is the marriage certificate filed by plaintiff to show that Venkataravamma and Siva Rama

Krishna are married. He admitted that Venkataravamma and Siva Rama

Krishna did the business in the Lalbahadur vegetable market,

Narasaraopet. He is aware that the Conduct certificates and Study certificates of plaintiffs have been filed by the plaintiffs in this Court. He does not know which school issued those certificates.

23.While, there is a specific date of marriage between PW1 and

Siva Rama Krishna under Ex.A1 as 09.08.1987 at 10.00 am at the given temple and also the same was mentioned in the original plaint itself, there was no such mention in the written statement of the defendants. It was

simply averred in the written statement that Siva Rama Krishna married

2 nd defendant as per Hindu Dharma Sastras and customs in front of their

residence and the same was witnessed by relatives. No date, month,

year or time of marriage between Siva Rama Krishna and D2 was

12 pleaded in the written statement. On the other hand, they were specifically mentioned both in original plaint and Ex.A1 marriage certificate, on behalf of the plaintiffs. Here, DW1 knows that in Ex.A11 legal notice got issued to him on behalf of the plaintiffs, there is mention that the husband name of 2nd defendant is not known. In fact, in the plaint also it is mentioned that the husband of 2nd defendant is not known. DW1 however denied that the marriage of 2nd defendant was held after the marriage of Venkataravamma with Siva Rama Krishna and therefore, the second marriage of Siva Rama Krishna with D2 herein is not valid marriage.

24. It is said by DW2 that D2 is his sister and she was given in marriage to Siva Rama Krishna on 02.07.1988 at 8.20 pm at Narasaraopet in Ila Bazar. However, there is no pleading by the defendants that D2 was married to Siva Rama Krishna on 02.07.1988 at 8.20 pm. The settled law is that no evidence can be looked into without any pleading. Here in the instant case, the omission by the defendants that the marriage took place on 02.07.1988 at 8.20 pm is very much fatal on the part of the defendants.

Hence, any amount of oral evidence on behalf of the defendants that the marriage took place on 02.07.1988 at 8.20 p.m., is of no avail. PW1 also filed Ex.A20 widow pension scheme book issued by the government of

Andhra Pradesh showing the name of Siva Rama Krishna as her husband, whereas such document is missing on the part of the defendants.

25.In this context, the learned plaintiffs' counsel cited in M.

Yogendra and others Vs. leelamma N. and others (2009(6) ALT 8(SC)) of

Hon'ble Supreme Court, to the following effect:-

13 “The question which now survives for our consideration is the provisions of Sections 6 and 8 of the Hindu Succession Act. The said

Act was enacted to amend and codify the law to inherent succession among Hindus. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between K. Doddananjundaiah and Yashodamma as noticed from the findings arrived at by the courts below took place sometime in April 1960. If that be so, the said marriage was clearly hit by section 5 of the Hindu Marriage Act.

Dinesh, therefore, would inherit the properties not as a coparcener.

----------------------------------------------------------------------------------- -----------------------------------------------------------------------------------

As on the date of death of K Doddananjundaiah through all his daughters as also Dinesh they will take in equal shares being the relatives specified in Clause (i) of the Scheduled appended to the

Act. Dinesh was admittedly born after the coming into force of the

Hindu Succession Act, 1956.”

26.He also cited in Tulsa & Ors., Vs. Durghatiya & Ors(2008(1)

L.S. 77(S.C) of Hon’ble Supreme Court that Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.

27.On the contrary, the learned defendants' counsel cited in J.

Sukanya Vs. J.P.Nirmala & Ors(2014(1) CIVIL COURT CASES 532) of

Hon'ble A.P High court that “in para 4 of the plaint, it was stated that

Girishchandra brought the 1st defendant to his house at Secunderabad.

Timing thereof is not mentioned. If, in fact PW1 was legally wedded wife of Girishchandra, and later on brought any other woman to their house, 14 any sensible woman would have protested and submitted a complaint to the police as well as to the department in which he was employed. No such steps have taken place. On the other hand, it was mentioned that she left the house in protest. It was not even mentioned as to when she left the house and how long she stayed outside.”

But in the instant case, there is clear mention of marriage between

PW1 and Siva Rama Krishna dt.09.08.1987 at Sri Vuyyuru Veeramma

Perantallu temple, Pedakakani Village, Guntur District in the plaint.

Further Ex.A1 marriage certificate was also filed on behalf of the plaintiffs.

28.The learned defendants counsel also cited in Karthi Pankaj

Akshy Vs. Lalitha Sujatha (1990 STPL 497 Kerala) of Hon’ble Kerala High court that even assuming that the statements in Exts.A3 and A4 are capable of a presumption that Bhaskaran married the 8th respondent, there can be no presumption that, the solemnization of the marriage was on a particular day, much less after the commencement of the Hindu Marriage

Act. Since, there is total lack of pleading and the proof to the effect that solemnization of the marriage between Bhaskaran and the 8th respondent was after the commencement of the Hindu Marriage Act, respondents 1, 9 and 10 cannot claim the benefit of Section 16(1) of the said Act. Since

Bhaskaran died after the commencement of the Hindu Succession Act.

Illegitimate children are not entitled to inherit as per the Hindu Succession

Act, unless they fall under Section 16 of the Hindu Marriage Act.

Respondents 1,9 and 10 are not proved to be entitled to the benefit of 15

Section 16(1). Their claim for share in the estate of deceased Bhaskaran cannot be sustained.

Here, Ex.B2 photographs do not disclose about the marriage date etc., pertaining to D2 and Siva Rama Krishna. Moreover, D2 herself was not examined to speak that there was valid marriage between her and Siva

Rama Krishna whereas PW1 was examined to speak that there was valid marriage between her and Siva Rama Krishna. Ex.B3 CD however shows as if marriage date is 2.7.1988 at 8.20 p.m. While so, first marriage of Siva

Rama Krishna with PW1 was held on 9.8.1987. Thus, first marriage of Siva

Rama Krishna with PW1 on 9.8.1987 prevails over his second marriage, if any, with 2nd defendant on 2.7.1988. Therefore, the marriage, if any, of

D2 with Ila Siva Rama Krishna cannot be recognized in the eye of law, as second marriage during the subsistence of first marrige is not only an offence under Indian Penal Code, but also illegal and invalid.

29.In view of the above mentioned discussion, this Court concludes that PW1 is legally wedded wife of Siva Rama Krishna.

30.It is seen from para-6 of the plaint that Ila Brahmaiah acquired item No.1 of schedule property under Ex.A6 sale deed, dt.11.7.1991. He acquired item No.2 under Ex.A7 sale deed dt.02.05.1991. He acquired Item

No.3 of schedule property under Ex.A8 sale deed dt.02.05.1991 from the respective vendors. It is, however, the plaintiffs case that he also acquired item No.4 of the schedule property from Kotha Panduranga Rao in the year 1986 but he died without obtaining the sale deed. It is the plaintiffs case that later D2 impressed upon Panduranga Rao, caused undue influence upon him, blackmailed him and obtained the sale deed under Ex.A9 16 dt.30.12.2006 in her favour in respect of item No.4 of the suit schedule properties. The recitals of Ex.A9 clearly show that the vendor has received the total sale consideration of Rs.1,10,000/- as bill contract from

Brahmaiah and therefore, the vendor delivered the possession to said

Brahmaiah and now as Brahmaiah and Siva Rama Krishna have died, on the request of D2, Ex.A9 registered sale deed has been executed. Thus, it is evidently clear under Ex.A9 sale deed itself that the sale consideration was paid by Brahmaiah himself but not by D2. Therefore, no rights vest with 2nd defendant in respect of Ex.A9 except to late Brahmaiah. In fact, it is admitted in the written statement that Brahmaiah himself in his life time purchased item No.4 of plaint schedule property. DW1 gone through Ex.A9 and A10. He also admitted that his grandfather Ila Brahmaiah paid consideration for the property covered by Ex.A10 gift deed at the time of link document under Ex.A9. Hence on the basis of Ex.A9 registered sale deed, it is not open to D2 to execute Ex.A10 gift deed dt.6.02.2012 for part of item No.4 of schedule property in respect of D3 and her husband who is D7. The plaintiffs in fact wanted to cancel the Ex.A9 sale deed dt.13.12.2006 and Ex.A10 gift deed dt.06.02.2012. In the given facts and circumstances of the case, there is no need of cancelling Ex.A9 sale deed dt.30.12.2006. If Ex.A9 sale deed dt.30.12.2006 is annulled, there is no possibility of partition of said item No.4. Here DW1 admitted that his mother/D2 cannot execute Ex.A10 gift deed dt.06.02.2012 in favour of D3 and D7 for Ac.0.50 cents out of item No.4. Due to this evidence, Ex.A10 gift deed dt.06.02.2012 is liable to be anulled.

17

31.It is also the defendants case that Ila Brahamaiah in his life time executed Ex.B1 Will deed dt.06.07.0996 in a sound and disposing state of mind and the said Will came into force. As per the said testament, 1st defendant has to obtain the registered sale deed from him and should enjoy the said property without power of alienation and after her death it should devolve upon the defendants 4 to 6. Admittedly, Ila Brahmaiah died on the date of Ex.B1 Will itself I.e,, on 06.07.1996. Therefore, the question of 1st defendant obtaining registered sale deed from him does not arise. Consequently, after the death of D1, the property covered by the

Will devolving upon the defendants 4 to 6 does not arise. Hence, the contention of the defendants that item No.4 of the plaint schedule property though standing in the name of D2, belongs to D4 to D6, does not have legs to stand. However, the burden lies upon the defendants to prove

Ex.B1 Will dt. 06.07.1996. Rejoinder was filed by the plaintiffs contending that the said Will is not true, valid and binding upon the plaintiffs and it is a concocted Will.

32.DW1 does not know by which name out of Brahmam, Peda

Brahmam and Brahmaiah, it is mentioned as “Nisani” in the Ex.B1 Will. He could not say what happened to the Ac.0.10 cents referred in page No.3,

B-schedule of Ex.B1 Will. DW1 does not know whether Ac.0.10 cents referred in the Will is a part of plaint schedule property.

33.DW2 was examined who spoke that Brahmaiah executed the contents of Will and put his thumb mark in the Will and they have attested the Will in his presence. It is said by DW2 that Brahmaiah saw when they 18 are signing the Will and they (attestors) saw Brahmaiah putting his thumb mark on the Will. On the contrary, the evidence of DW3 is that they saw

Brahmaiah signing the Will. But as seen from Ex.B1 Will, there is no signature of testator Brahmaiah except the thumb mark. Even this thumb mark also is questionable. Because it is the contention of the plaintiffs that the wording “జవత కలము అనుభవంచ ఆమ అనంతరం“ were inserted after preparation of the Will at the last lines of second page of the Will.

Admittedly, the last line of second page has been inserted congestively in the Will. Similarly, the first two lines of second page were also inserted congestively. In order to dispel these suspicions, the scribe of the Will was not examined though DW1 to DW3 admitted that the scribe is very much alive.

34.In this connection, the learned plaintiffs' counsel cited the following judgments:-

1)In Purna Bai and others Vs. Ranchhoddas and others (AIR 1992 AP 270) of Hon’ble A.P High Court that in view of this conduct of the defendants in not adducing required evidence, it has to be held that the properties covered by the plaint ‘B’ schedule and by plaint 'C' schedule land at Ramananthapur are the joint family properties.

2)In Mathangi Devasahayam Vs. Jetty Manikyamma and

Ors., (2014(2) L.S.421) of Hon'ble A.P High Court that examination of attestors would only bring about compliance with the requirement under

Sec.68 of the Act, beyond that it does not add finality to the genuinity of the Will.

19

35.On the contrary, the learned defendants' counsel cited in

Jagdish Chand Sharma Vs. Narain Singh Saini (dead) through his LRs &

Others (AIR 2015 SC 2149) of Hon’ble Supreme Court, to the effect that :- “This Court in H. Venkatachala Iyengar (supra) while dilating on the statutory requisites of valid execution of a Will, observed that unlike other documents this testamentary instrument speaks from the death of the testator and by the time when it is produced before a Court, the testator had departed from his temporal state and is not available to own or disown the same. It was thus emphasised that this does introduce an element of solemnity in the decision on the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. In this context, it was emphasised that the propounder would be required to prove by satisfactory evidence that (i) the Will was signed by the testator, (ii) he at the relevant time was in a sound and disposing state of mind, (iii) he understood the nature and effect of the dispositions, and that (iv) he put his signature to the document of his own free will. It was observed that ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, the court would be justified in making a finding in favour of the propounder signifying that he/she had been able to discharge his/her onus to prove the essential facts. The necessity of removal of the suspicious circumstances attendant on the execution of the

Will, however, was underlined as well. That no hard and fast or inflexible rule can be laid down for the appreciation of the evidence to this effect was acknowledged.

That a propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had 20 signed it in presence of two witnesses who had attested it in presence and in the presence of each other, in order to discharge his onus to prove due execution of the said document was reiterated by this Court amongst others in Surendra Pal and Ors.

(supra) It was held as well that though on the proof of the above facts, the onus of the propounder gets discharged, there could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests indicative of lack of testator’s free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances. It was propounded further that where the caveator alleges undue influence, fraud and coercion, the onus, however, would be on him to prove the same, and on his failure, probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.”

36.The learned defendants counsel also cited in Dhanpat Vs.

Sheo Ram (deceased) through LRs. and others (2020(2) ALT 209(SC)) of

Hon’ble Supreme Court to the following effect:

“Now, coming to the question as to whether the defendants have proved the due execution of the Will, reference will be made to a judgment reported as H. Venkatachala Iyengar

Vs. B.N. Thimmajamma and others (9) AIR 1959 SC 443. This Court while considering Section 63 of the Act and Section 68 of the

Evidence Act laid down the test as to whether the testator signed the Will and whether he understood the nature and effect of the dispositions in the Will. The Court held as under:

21

Thus the question as to 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 these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the 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. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.”

This Court in a judgment reported as Seth Beni Chand (since dead) now by LRs. v. Smt. Kamla Kunwar & Ors(10) (1976) 4 SCC 554 held that onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The Court held as under:

The question which now arises for consideration, on which the

Letters Patent Court differed from the learned Single Judge of the

High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily. It is well- settled that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. [ See

Jarman on Wills (8th Edn., p. 50) and H. Venkatachala Iyengar Vs.

B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR 426] By “free and capable testator” is generally meant that the testator at the time when he made the will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if the propounder leads evidence 22 to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act….”

37.It is mentioned in the Ex.B1 Will that the plots mentioned in page-2 of the Will devolve upon him “after the death of his father.”

Therefore, they become the ancestral property of the testator. It is not open to him as such to bequeath the plots in favour of anyone or in the manner in which he likes. By the time the last line of second page of the

Will was incorporated, already thumb mark was taken said to belong to the testator. When there are suspicious circumstances surrounding the Ex.B1

Will, it is incumbent upon the defendants to prove the Will beyond all suspicions.

38.It is seen from Para-7 of the written statement that Siva Rama

Krishna used to attend and assist his father in the vegetable market business. DW2 does not know the name of the business firm conducted by

Brahmaiah and his son Siva Rama Krishna. DW2 also stated that the Will got mentioned the properties of the father of Brahmaiah. However, DW2 did not advise Brahmaiah as to he cannot execute the Will for the properties of his father. DW3 also did not advise Brahmaiah that he cannot execute the Will for the properties of his father. Admittedly, Brahmaiah got one male child and three female children. When Siva Rama Krishnaiah assisted his father Brahmaiah, the properties acquired by Brahmaiah shall be treated as the joint efforts by father and son. Therefore, the father 23

Brahmaiah alone is not entitled to execute the Will as he wish. In this context, the learned plaintiffs' counsel cited in Purna Bai & Ors., Vs.

Ranchhoodas(died) and others (1992(2) AP Law Summery 21) of Hon’ble

AP High Court that when the father and sons acquired properties by their joint effort in the family business, they constitute the joint family properties amenable for partition by the sons and their sons as coparceners. Therefore, it is concluded that Ex.B1 Will is not proved. Due to the above mentioned discussion, issue No.1 is held against the defendants and in favour of the plaintiffs.

39.It is true that initially OS.No.23 of 2013 was filed for partition of six items which were not shown in the present suit. Therefore it is contended by the defendants that the suit is bad for partial partition.

However, it is clearly mentioned in the plaint itself that the plaintiffs mother (PW1) being not supported by any assistance could not come to know of the correct picture of the properties of her family and she made her attempts for her children for partition of the family properties without knowing the descriptive particulars of the same and so could not succeed in her attempts and so she was advised to seek for partition of the properties with correct descriptive particulars against the concerned.

Under IA.No.106 of 2015, suit in OS.No.23 of 2013 was withdrawn.

Thereafter, the present suit was numbered. It is the contention of the plaintiff that the particulars of properties mentioned in OS.No.23 of 2013 are not known fully and as such, it was got withdrawn. It is also submitted on behalf of the plaintiffs that six items of the properties covered by

OS.No.23 of 2013 are not the properties of this family and those

24 descriptive particulars are not known to them and hence the said suit was got withdrawn. On the other hand, there is no description of the “other properties” which were allegedly not reflected in the present suit in order to contend that the suit for partial partition is not maintainable, or not given by the defendants also either in the written statement or in the evidence. In the given evidence, the suit is not bad on the ground that it is not maintainable for partial partition.

40.The daughters of Brahmaiah were added as D8 to D10 by virtue of orders in IA.No.363 of 2017, dt.15.02.2018 under Order 1 Rule 10 CPC.

In that IA, counter was filed by 9th respondent who is D9 herein stating that the daughters of Brahmaiah are not claiming any share in the suit schedule properties herein and they are not necessary parties to the suit. They again reiterated in the counter stating that the daughters are not claiming any share in the suit schedule properties. Therefore, while allotting shares in this suit, D8 to D10 can be omitted.

41.It is mentioned in the plaint that the prayer for cancellation of the documents need not be valued for the purpose of court fees because the plaintiffs are not made parties to the said documents i.e., Ex.A9 sale deed and Ex.A10 gift deed. However, ultimately a court fee of Rs.7626/- was paid i.e., Rs.200/- under Sec.34(2) of APCF and SV Act and balance amount under Sec.37 of APCF and SV Act for the cancellation of the documents. Hence, it is not correct that the plaintiffs are liable to pay some more Court fees. In the instant case, while Ex.A10 gift deed is being cancelled, Ex.A9 sale deed is not being cancelled for the reasons mentioned above.

25

42.General rules of succession in the case of male [here in the case of Ila Brahmaiah] are dealt with in Sec.8 of the Hindu Succession Act as follows:-

Sec.8 of Hindu Succession Act, General rules of succession in the case of male:-

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

a)firstly, upon the heirs being the relatives specified in class I of the Schedule;

b)secondly, if there is no heir of Class I, then upon the heirs being the relatives specified in Class II of the Schedule;

c)thirdly, if there is no heir of the two classes, then upon the agnates of the deceased; and

d)lastly, if there is no agnate, then upon the cognates of the deceased.

43.Sec.15 of the Hindu Succession Act deals with General rules of succession in the case of female Hindus— (1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a)firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs 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 26 sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b)any property inherited by a female Hindus 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 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 husband.

44.Sec.16 of the Hindu Succession Act deals with Order of succession and manner of distribution among heirs or female Hindu—

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:-

Rule 1:- Among the heirs specified in sub-section(1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

Rule 2.—If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.

Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 115 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.

27

45.It is submitted on behalf of the plaintiffs that the daughters are also entitled for share under Sec.6 of the Hindu Succession Act, 1956.

By virtue of amendment in the year 2005, to Sec.6 of the Act, a daughter of a coparcener shall become a coparcener by birth like a son for the share in the property. Here, the learned plaintiffs counsel cited in Rayani

Appaiah Vs. Spl Tahsildar L.R. Addanki (1981(2) SHORT NOTES OF

RECENT CASES) of Hon'ble AP High Court (Full bench) to the following effect:- “The interest in the coparcenery property of a deceased is also made subject to general rules of Succession(intestate and testamentary – vide proviso to Secs 6, 30, 7 & 17) except to the extent provided in Sec.6. The exception is in case of those governed by Mitakshara and do not have a female relative in class I, in which case the principle of survivorship will continue to apply.

The principle of survivorship does not make any distinction to various sub schools of Mithakshara. There is no specific provision for ascertainment of the interest of a deceased governed by

Mitakshara in a coparcenery property. According to Sec.14(1) any property possessed by a female Hindu shall be held by her as a full owner. The explanation to the said sub section defines “property” widely and includes property acquired by a female at a partition.

This implies that a female is also entitled to a share in a partition of coparcenary,as otherwise, the words “property acquired at a partition” would became unnecessary because the Explanation also uses the words “property acquired by inheritance or devise”. Such a partition can refer only to a Mitakshara coparcenary which is also evident from the fact that proviso to Sec.6 also makes a reference to the same.”

46.In this connection, the learned defendants counsel cited in

Vineeta Sharma Vs. Rakesh Sharma and others (2020(5) ALD 49 (SC) of 28

Hon'ble Supreme Court that Sec.6 of Hindu Succession Act, 1956 as

substituted by Amendment Act of 2005 is applicable to a daughter even if the father of a coparcenary died before 2005 amendment.

47.There is no dispute that all the suit schedule properties originally owned by late Ila Brahmaiah, father of Ila Siva Rama Krishna. On the death of Ila Brahmaiah, succession opens. On such open, D1 widow and deceased son Siva Rama Krishnaiah have succeeded to the property equally under Sec.8 of the Hindu Succession Act, being the Class-I heirs of late

Brahmaiah. Subsequently, the son Siva Rama Krishnaiah also died leaving behind him the plaintiffs, D1 and D3 to D6. Later 2nd plaintiff also died.

Therefore, first of all, the entire schedule properties should be divided in two equal shares i.e. one for 1st defendant and the other share for Siva

Rama Krishnaiah notionally (widow and son). Out of the half share of Siva

Rama Krishnaiah, the 1st plaintiff, D1 and D3 to D6 are entitled for equal shares. In the circumstances, 1st defendant is entitled for 1/2 share + 1/6th share out of the half share of late Siva Rama Krishanaiah [ 1/2 x 1/6 = 1/12]. Therefore, D1 is entitled for 1/2 + 1/12 share. The 1st plaintiff and D3 to D6 are entitled for 1/12 share each in the suit schedule properties. D2 is not entitled for share. There is no evidence regarding future profits. Therefore, the plaintiffs are not entitled for future profits.

Issue No.2 is partly held in favour of the plaintiffs.

48.ISSUE NO.3:

In the result, preliminary decree is partly passed with costs that the entire schedule properties should be divided into two equal shares 29 i.e., one for 1st defendant and the other share for Siva Rama Krishnaiah notionally. Out of the half share of Siva Rama Krishnaiah, the 1st plaintiff,

D1 and D3 to D6 are entitled for equal shares. The suit is decreed that 1st defendant is entitled for 1/2 share + 1/6th share out of the half share of late Siva Rama Krishanaiah in entire schedule properties. The suit is decreed that D1 is entitled for 1/2 + 1/12 shares [ 1/2 x 1/6 = 1/12].

49.The suit is decreed that 1st plaintiff and D3 to D6 are entitled for 1/12 share each in the suit schedule properties.

50.The suit is decreed that Ex.A10 gift deed dt.06.10.2012 executed by

D2 in favour of D3 and D7 is hereby cancelled.

51.The suit is dismissed negativing the relief of cancellation of Ex.A9 sale deed dt.30.12.2006.

52. The suit is dismissed in respect of future profits.

53. D2 is not entitled for share.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me through electronic media, this the 28th day of

April, 2021.

Sd/- K. Sreenivasa Rao

XIII Addl. District Judge, Narasaraopet.

Appendix of Evidence

Witnes ses Examined

For Plaintiffs:

P.W.1-Ila Venkataravamma P.W.2- Ila Dhanalakshmi P.W.3- Shaik Mahaboob Subhani P.W.4-Shaik Fathima For Defendants: D.W.1-Ila Venkata Satyanarayana D.W.2-Vennapoosala China Venkateswarlu D.W.3- Ila Satyanarayana 30

Exhibits Marked

For Plaintiffs: Ex.A1-Marriage certificate issued by Sri Vuyyuru Veeramma Perantalamma Temple, Pedakakani. Ex.A2-Death certificate of my husband Sivaramakrishnaiah. Ex.A3-Residential certificate issued by MRO, Narasaraopet, dt.15.4.2005. Ex.A4-Election identity card. Ex.A5-Study certificate of the 2nd plaintiff issued by Head Master, Municipal Girls High School, dt.22.12.2014. Ex.A6- C.C of registered sale deed dt.11.7.1991 in respect of item No.1 of schedule property. Ex.A7- C.C of registered sale deed dt.2.5.1991 in respect of item No.2 of schedule property. Ex.A8- C.C of registered sale deed dt.2.5.1991 in respect of item No.3 of schedule property. Ex.A9- C.C of registered sale deed dt.30.12.2006 in respect of item No.4 of schedule property. Ex.A10- C.C of gift deed dt.16.2.2012 executed by D2/Bhulakshmi in favour of her daughter D3/Govardini and her husband Balakrishna/D7. Ex.A11- Office copy of the legal notice dt.30.12.2014 with postal receipts(6). Ex.A12- Unserved RP cover addressed to D1. Ex.A13- Postal acknowledgment of D2. Ex.A14- Postal acknowledgment of D3. Ex.A15- Postal acknowledgment of D4. Ex.A16- Postal acknowledgment of D5. Ex.A17- Postal acknowledgment of D6. Ex.A18-Study cum conduct certificate of 1st daughter of plaintiff Yamuna Roy, issued by Principal, Hird Junior College for woman, Narasaraopet, dt.19.12.2018. Ex.A19- Study cum conduct certificate of Dhanalakshmi, issued by Head Mistresses, Municipal Girls High School, Narasaraopet, dt.18.12.2018. Ex.A20- Attested copy of Widow pension scheme book issued to plaintiff by government of Andhra Pradesh. Ex.A21- Information by State House Construction concern, Guntur Dt.25.1.2019.

For Defendants: Ex. B1- Original Will. Ex.B2-Five Photographs. Ex.B3- Video Cassette along with CD

ILD/- K. S. Rao

XIII ADJ., NRT.,

//True copy//

XIII ADJ., NRT.,

31

In the Court of the XIII Addl. District Judge: Narasaraopet,

Present:-Sri K. Sreenivasa Rao, XIII Addl. District Judge, Narasaraopet,

Wednesday, this the 28th day of April, 2021,

Original Suit No.43 of 2015

Between:

1.Ila Yamuna Roy, w/o Pendyala Naga Suresh, Hindu, aged 20 years, R/o D.No.6/28,(present D.No.13-4-63/12) Pedakakani Village and Mandal, Guntur District.

2.Ila Dhanalakshmi(died on 10.11.19) (Amended as per orders dt.7.2.2020 in IA.No.1262/2019) …Plaintiff AND

1.Ila Subbamma, w/o late Brahmaiah, aged 68 years, R/o D.No.13-4-63/12, Vengalareddynagar, Kotappakonda Road, Narasaraopet.

2.Ila Bhulakshmi, w/o not known, aged 45 years, Hindu, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

3.Ravuri Govardhani, w/o Balakrishna, Hindu, aged 23 years, R/o Uppalapadu Village, Narasaraopet Mandal, Guntur District.

4.Ila Venkata Satyanarayana, s/o late Siva Rama Krishna @ Siva Rama Krishnaiah, Hindu, aged 24 years, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

5.Ila Bhavannarayana, s/o late Siva Rama Krishna @ Siva Rama Krishnaiah, Hindu, aged 12 years, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

6.Ila Ramanjaneyulu, s/o late Siva Rama Krishna @ Siva Rama Krishnaiah, Hindu, aged 22 years, R/o D.No.20-5-24, Ila Bazaar, Narasaraopet.

7.Ravuri Bala Krishna, s/o Veeranjaneyulu, Hindu, R/o Uppalapadu Village, Narasaraopet Mandal.

8.Koppula Lakshmi, w/o Nageswara Rao, Hindu, aged 47 years, Milk Business, R/o 20-5-24, Ila Bazaar, Narasaraopet.

9.Alla Eswaramma, w/o Venkata Rao, Hindu, aged 45 years, Housewife, R/o 3-70/A, Yarraguntlapadu Village, Phirangipuram Mandal.

10.Thota Krishna Kumari, w/o Mallikharjuna Rao, Hindu, aged 35 years, Housewife, R/o D.No.20-5-22, Ila Bazaar, Narasaraopet. (defendants 8,9 and 10 are added as per orders in I.A.363 of 2017)

...Defendants

This suit is originally filed for partition of the suit schedule properties into 2 equal shares and for allotment of half share to the plaintiffs.

Later the 2nd plaintiff Ila Dhana Lakshmi, minor represented by the mother died.

32

The plaint was amended seeking partition of the suit schedule properties into two equal shares and for allotment of half share to the 1st plaintiff. The plaintiffs also want half share in the future profits. The suit is also filed for cancellation of gift deed No.1496/2012, dt.06.02.2012 before SRO, Narasaraopet executed by D2 in favour of D3 and D7 and sale deed No.15097/2006 dt.30.12.2006 before SRO, Narasaraopet in favour of D2 from the vendor of Ila

Brahmaiah as they are null and void.

Plaint Presented on:18.02.2015

Plaint filed on:08.06.2015

Cause of action for the suit arose when Ila Brahmaiah got acquired the schedule properties and when the suit properties have been the joint undivided Hindu family properties of him land when he passed away without any arrangements and when his son Ila Siva Rama Krishna and his wife namely mother of plaintiffs and wife of Ilal Brahmaiah besides D1 in the suit became LRs of said Brahmaiah and when mother of plaintiffs being legitimate wife of said Ila

Siva Rama Krishna and when D2 being kept mistress of said Siva Rama Krishna and when he begot children through his wife namely 1st and 2nd plaintiffs and through his kept mistress who is D2 in this suit by name Bhulakshmi whereas D2 to D6 are children and when his children have been in joint possession and enjoyment of the schedule properties and when D2 inl the suit has been trying to snatch away the family properties as she pleases and when her attempts could not be understood by the mother of plaintiffs for herself and for her children and when mother of plaintiffs could not be allowed to know the correct descriptive particulars of the family properties and when she failed to understand the bad attempts of D2 and when the defendants failed for partition and when the suit properties are in joint possession of plaintiffs 1 and 2 and when 2nd plaintiff died on 10.11.2019 pending suit and as a result when the sole 1st plaintiff as well as

D3 to D6 and where the properties as well as parties situated and residing within the jurisdiction of this court amended a per orders dt.7.2.2020 in

IA.No.1262/2019.

Valuation of this being a suit filed for partition, the market value of property covered under schedules

Total market value Rs.1,33,88,600/-

Value of plaintiff ½ share is Rs. 66,94,300/- 3/4th of the same is Rs. 50,20,725/-

On which a Court fee of Rs.200/- is herewith paid U/s.34(2) of APCF & SV

Act; and 33

The value of cancellation of gift deed is Rs.5,00,000/-; On which a Court fee of Rs.7,426/- is payable U/s.37 of APCF & SV Act.

The total value of the suit is Rs.50,20,725 + Rs.5,00,000 = Rs.55,20,725.

Total court fee paid is Rs.200+Rs.7426 = Rs.7626-00.

Value of the suit for the purpose of jurisdiction is same as above.

This suit is coming on 16.04.2021 before me for arguments in the presence of Sri B.M.N.Murthy, Advocate for the Plaintiffs and of Sri G.L.V.Ramana

Murthy, Advocate for the defendants 2 to 7 and of defendants 1 and 8 to 10 having remained exparte and upon hearing and considering the material on record, having stood over for consideration till this day, this Court doth order and decree as follows:

1.That the suit be and the same is hereby preliminarily decreed partly that the entire schedule properties should be divided into two equal shares i.e., one for 1st defendant and the other share for Siva Rama Krishnaiah notionally; and

2.that out of the half share of Siva Rama Krishnaiah, the 1st plaintiff,

D1 and D3 to D6 are entitled for equal shares; and

3. that the suit is decreed that 1st defendant is entitled for 1/2 share + 1/6th share out of the half share of late Siva Rama Krishanaiah in entire schedule properties; and

4.that the suit is decreed that D1 is entitled for 1/2 + 1/12 shares [ 1/2 x 1/6 = 1/12]; and

5.that the suit is decreed that 1st plaintiff and D3 to D6 are entitled for 1/12 share each in the suit schedule properties; and

6.that the suit is decreed that Ex.A10 gift deed dt.06.10.2012 executed by D2 in favour of D3 and D7 is hereby cancelled; and

7.that the suit is dismissed negativing the relief of cancellation of

Ex.A9 sale deed dt.30.12.2006; and

8.that the suit is dismissed in respect of future profits; and

9. that D2 is not entitled for share; and 34

10.that the defendants do pay to the plaintiff a sum of Rs.7628-00 (cm&fc not filed by the plaintiff) and do bear their own costs of Rs.NILL (cm&fc not filed by the defendants).

Given under my hand and the seal of the Court, this the 28th day of April, 2021.

XIII Addl. District Judge, Narasaraopet.

TABLE OF COSTS

For Description For plaintiff For Defendants cm&fc not filed cm&fc not filed Vakalat2-00 Appeal fees7626-00 Process Pleaders Fee Writing Charges Typing Charges Total7628-00

NB:-Copy of plaint schedule hereto attached.

XIII ADJ., NRT.,

1

In the Court of the XIII Addl. District Judge: Narasaraopet,

Present:-Sri K. Sreenivasa Rao, XIII Addl. District Judge, Narasaraopet,

Thursday, this the 29th day of April, 2021,

Appeal Suit No.76 of 2016

( OS No.49/2010 on the file of P J C J,Chilakaluripet)

Between:

Sathuluri Satyavathi, w/o Rayappa, Hindu, aged 45 years, Coolie work, R/o d.No.11-77/2, East Malapalli, Chilakaluripet town And Mandal,Guntur District.

...Appellant/Plaintiff

And

1.Addanki Rajarao, s/o Kotaiah, Hindu, aged 55 years, R/o East Malapalli Chilakaluripet town and Mandal, Guntur District.

2.Addanki Pushpalatha, w/o Francis, Hindu, aged 45 years, Housewife, R/o D.No.11-302, East malapalli, Chilakaluripet Town & Mandal, Guntur District.

3.Gudipudi Joseph, s/o Bala Swamy, Hindu, aged 37 years,

4.Gudipudi Aruna, w/o Joseph, Hindu, aged 30 years, Housewife, Respondents 3 and 4 are residents of Vignanapuram, Phirangipuram Mandal.

...Respondents/ defendants

On appeal filed against the decree and order passed in OS

No.49/2010 on the file of Prl. Junior Civil Judge's Court, Chilakaluripet

dated 30.05.2015.

Between:

Sathuluri Satyavathi...Plaintiff

And

1.Addanki Rajarao 2.Addanki Pushpalatha 3.Gudipudi Joseph

4.Gudipudi Aruna...Defendants

This appeal is coming on 12.04.2021 before me for arguments in the presence of Sri Kodali Nageswara Rao, Advocate for the Appellant/ 2 plaintiff and of Sri S. Peter Paul, Advocate for the respondents/defendants and upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This appeal is preferred against the decree and judgment of the Prl. Junior Civil Judge's Court, Chilakaluripet in OS No.49 of 2010 dated 30.5.2015 dismissing the suit for declaration and permanent injunction.

02.The appellant is the plaintiff. It is the plaintiff's case that she is the absolute owner of the suit schedule property. The schedule property originally belongs to one late Addanki Somaiah. He had two marriages. He married one Karunamma as second wife after the death of first wife. The 4th defendant is the maternal grand daughter of Somaiah. After the death of mother of D4 by name Sujanamma and the first wife of Somaiah,

Karunamma and 4th defendant succeeded to the estate of Somaiah including the suit schedule property. Later Karunamma got the suit property exclusively in the family partition with D4. As there are disputes between Karunamma and D4, D4 executed a sham and nominal gift deed in favour of D2 in respect of schedule property to create troubles to the

Karunamma. The said gift deed dt.25.2.2003 did not create any right in favour of D2. D2 is not at all sister of D4 as mentioned in the gift deed.

Neither D2 nor D4 had ever possession of the schedule property. The elders intervened and pacified the matter between Karunamma and D4, in pursuance of which D2 and D4 agreed for the absolute title and possession of Karunamma and executed registered Revocation deed dt.15.03.2004.

3

03.The suit schedule property was sold to plaintiff on the same day i.e., 15.03.2004 by Karunamma for a valid consideration of Rs.39,000/- under registered sale deed and delivered possession to plaintiff and ever since then, the plaintiff is in possession and enjoyment of the same. D4 prompted the plaintiff to purchase the schedule property in the light of registered sale deed dt.15.03.2004. D4 is the wife of D3. D2 is in the pocket of D3, D4. D1 married sister of D2. All of them colluded and got filed OS.No.8 of 2006 on the foot of promissory note allegedly executed by

D3, D4 in favour of D2 wherein D3, D4 suffered a collusive decree exparte and brought the suit schedule property to sale. The plaintiff was kept in dark. In fact, the suit property was sold on 30.12.2009 in EP.No.37 of 2008 in OS.No.8 of 2006 and they managed 1st defendant as auction purchaser.

The plaintiff being illiterate came to know about the said facts recently.

As such, she enquired the matter but they gave evasive reply. They openly proclaimed that they will dispossess from the schedule property. Hence, the suit for declaration of the plaintiff's title to the plaint schedule property and that D3, D4 do not have title or possession over the same and for consequential permanent injunction restraining the defendants from ever interfering with the peaceful possession of the plaintiff over schedule property or by dispossessing her from the suit property either in execution of decree in EP.No.37 of 2008 in OS.No.8 of 2006 which is pending before this Hon'ble Court or otherwise.

04.Written statement was filed by the defendants denying the plaintiff's averments. Karunamma vendor of plaintiff originally resident of

Irukupalem Village of Sattenapalli mandal. Her parents are Turaka Devaiah 4 and Mariyamma. She was given in marriage to one Gummala John. Later

John died due to ill health thereafter Karunamma married one Tappeta

Showry, R/o 113 Talluru Village of Phirangipuram Mandal. After the death of Tappeta Showry, Karunamma received old age pension from Mandal

Development Office, Phirangipuram as wife of Tappeta Showry. Thus,

Karunamma is second wife of Tappeta Showry. It is absolutely false that

Karunamma is the second wife of Addanki Somaiah as alleged by the plaintiff.

05.The plaintiff is the wife of one Satuluru Rayappa. The said

Rayappa and his brother Chalapathy are rowdy sheeters and life convicted persons in murder case. The registered sale deed dt.15.03.2004 executed by Karunamma in favour of plaintiff came into existence when the plaintiff's husband came on parole. Thus the plaintiff's sale deed dt.15.03.2004 does not create any right in favour of plaintiff, as the vendor himself does not have any right over the schedule property. The 4th defendant never prompted for the registered sale deed dt.15.03.2004.

06.D3 and D4 used to borrow money from D2 and in that connection, D4 executed a gift deed in favour of D2 dt.25.02.2003. Later it was revoked by D4 on 15.03.2004 due to misunderstanding between them.

Neither D2 nor D4 had knowledge about the existence of registered sale deed dt.15.3.2004. D3, D4 borrowed money from D2 and jointly executed a promissory note in favour of D2 and as they failed to repay the amount,

D2 filed OS.No.8 of 2006 and the same was decreed. D2 filed EP.No.37 of 2008 and brought the suit schedule property for sale and the same was 5 auctioned on 30.12.2009 wherein 1st defendant became the auction purchaser and the EP is coming for issuing sale certificate to D1 who is the auction purchaser. The present suit is filed in order to create unnecessary litigation to grab the suit schedule property threatening D1 and D2. In fact, the plaintiff has no right over the suit schedule property and she is not in possession and enjoyment of the suit property.

07.On the basis of pleadings, the trial Court settled the following issues for trial:

1.Whether the registered gift deed dt.25.02.2003 is true and valid?

2.Whether the registered revocation deed dt.15.03.2004 is true, valid and binding on the defendant?

3.Whether the consideration is passed and possession is delivered under registered sale deed dt.15.03.2004?

4.Whether the plaintiff is in peaceful possession and enjoyment of the suit schedule property?

5.Whether the plaintiff is entitled for declaration of title?

6.Whether the plaintiff is entitled for permanent injunction restraining the defendants from ever interfering with peaceful possession and enjoyment of the suit schedule property?

7.To what relief?

08.During the course of trial, on behalf of the plaintiff P.W.1 to

P.W.3 were examined and Ex.A1 to Ex.A4 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and no documents were marked. Ultimately the suit was dismissed, aggrieved by which the plaintiff preferred the present appeal.

09.Heard the arguments. Written arguments are filed on behalf of the respondents/defendants.

10.The points for consideration are:

1. Whether the appellant/ plaintiff is entitled for declaration?

6

2. Whether the appellant/plaintiff is entitled for consequential permanent injunction as prayed?

11.POINTS NO.1 AND 2:

The burden lies upon the appellant/plaintiff to establish that she is entitled for declaration and for consequential permanent injunction as prayed for. The burden is not normal but it is heavy upon the appellant/ plaintiff. It is the plaintiffs case that she is the absolute owner of the suit schedule property. The schedule property originally belongs to one late

Addanki Somaiah. He had two marriages. He married one Karunamma as second wife after the death of first wife. The 4th defendant is the maternal grand daughter of Somaiah. After the death of mother of D4 by name Sujanamma and the first wife of Somaiah, Karunamma and 4th defendant succeeded to the estate of Somaiah including the suit schedule property. Later Karunamma got the suit property exclusively in the family partition with D4. As there are disputes between Karunamma and D4, D4 executed a sham and nominal gift deed in favour of D2 in respect of schedule property to create troubles to the Karunamma. The said gift deed dt.25.2.2003 did not create any right in favour of D2. D2 is not at all sister of D4 as mentioned in the gift deed. Neither D2 nor D4 had ever possession of the schedule property. The elders intervened and pacified the matter between Karunamma and D4, in pursuance of which D2 and D4 agreed for the absolute title and possession of Karunamma and executed registered

Revocation deed dt.15.03.2004. Ex.A3 is gift deed dt.28.03.2003.

According to PW1, it does not create any right in favour of D2.

7

12.It is said by PW1 that she purchased the suit schedule property from Karunamma for a valid consideration of Rs.39,000/- on 15.03.2004 under Ex.A1 sale deed and ever since then, she is in possession and enjoyment of the same. She filed Ex.A2 tax receipt dt.16.02.2010 i.e., after six years. However, the trial court also noticed that the door number is not tallying on Ex.A2 Tax Receipt to the schedule property. It is, however, submitted by the learned appellant's counsel that after purchasing the schedule property, asbestos sheet was raised and therefore, new door number was allotted to the plaintiff and the same was reflected on Ex.A2 tax receipt. But no revenue official was examined on behalf of the appellant/plaintiff to prove the said fact.

13. It is, however, admitted by PW1 that her brother-in-law acts as an elder to the petty disputes in the village. In this connection, the case of the defendants is that the plaintiff is wife of one Sathuluru Rayappa and

Rayappa, his brother Chalapathi are rowdy sheeters and life convicts in the murder case. The same is not denied by way of any rejoinder by the plaintiff. PW1 further admitted that due to disputes between D4 and

Pushpalatha, they approached her brother-in-law. She admitted that her brother-in-law and Kristopher acted as elders to the disputes raised by D2 and D4 and it was resolved as Ex.A3 Gift deed dt.28.03.2003 executed by

D4 in favour of D2 is to be cancelled and the date was fixed for the cancellation of gift deed. PW1 also admitted that for the cancellation of gift deed under Ex.A3, D4 and her husband, her brother-in-law i.e. Raja

Rao and Kristopher went to Registrar office. The said Ex.A3 gift deed has been cancelled under Ex.A4 revocation deed dt.15.03.2004. It is significant 8 to note that Ex.A1 sale deed of plaintiff and Ex.A4 revocation deed emerge out of same date i.e., 15.03.2004. Admittedly, Raja Rao and Kristopher acted as attestors to both Ex.A1 sale deed and Ex.A4 revocation deed dt.15.03.2004. PW1 does not know whether the suit schedule property also belongs to 4th defendant. As the suit is one for declaration and for consequential permanent injunction, the evidence of PW1 must be absolute and certain. She cannot say that she does not know whether the suit schedule property also belongs to D4. It is not known why PW1 kept the Ex.A1 document in secret, after registration of the property in her favour. If the schedule property was genuinely purchased by plaintiff under

Ex.A1 it is not known what prompted her to keep it clandestinely.

14.Although PW2 evidence chief affidavit was filed, she was not cross examined. Therefore, her evidence affidavit is eschewed from consideration.

15.PW3 was examined in support of the plaintiff’s case. However,

PW3 does not know the exact year of the purchase of the schedule property by the plaintiff, but PW3 stated that plaintiff purchased it 9 or 10 years ago. The most important piece of evidence of PW3 is that he was present at the time of registration of the document by the plaintiff and no other registrations were made on that date. It is the plaintiff’s case that

PW3 Raja Rao was attestor not only to Ex.A1 sale deed dt.15.03.2004 but also to Ex.A4 revocation deed dt.15.03.2004. His signature as attestor is found in both the above documents. However, the evidence of PW3 is contrary to the contents of the documents, particularly attestation part.

Therefore, the question arises whether Ex.A1 was really executed validly 9 in favour of plaintiff on the given date. Thus the evidence let in by the plaintiff itself is feeble and weak. In a suit for declaration, the evidence must be specific and determined and decree cannot be passed based on the weak evidence.

16.However, the learned appellant's counsel cited in Iqbal Basith

Vs. N Subbalakshmi and others (Civil Appeal No.1725 of 2020,

dt.17.12.2020) that “the conclusion by the courts below that the appellants had failed to establish title and therefore could not be said to be in lawful possession is therefore held to be perverse and unsustainable. Similarly, the conclusion that the identity of the suit property was not established is also held to be perverse in view of letter

dated 16.04.1956 from the municipality, referred to herein above. The

contention of the respondents feebly seeking to question the title of the appellants was rejected holding that they had nothing to do with the schedule property and that their conduct was questionable. Yet the appellants were wrongly denied the relief of permanent injunction. In our considered opinion, the trial court and the High court both posed unto themselves the wrong question venturing to decide the title of the appellants, and arrived at an erroneous conclusion”. But the present case facts are different to the given citation. Moreover, it was observed in the citation that although 30 years old documents are produced before the trial court, they were rejected without any valid reason holding that there could be no presumption that the documents executed by a public authority has been issued in proper exercise of statutory powers. In the present case, the plaintiff's documents are not 30 years old documents.

10

Therefore, the presumption of law under Sec.90 of Evidence Act does not arise.

17.The learned appellant's counsel also cited in Syed Abdul

Khader Vs. Rami Reddy(LAWS(SC)-1978-11-41) of Hon'ble Supreme Court that “It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted would have led to a discovery of it.

In this case the father of the plaintiff throughout acted in relation to others as the owner of the property though the plaintiff was the real owner of the property. The father of the plaintiff executed agreement D-18 to sell the land to defendant 1.

The transaction was completed in the presence of the plaintiff and the consideration was put in the hands of the plaintiff. Plaintiff would certainly be estopped from contesting the validity of the sale on the ground that the father had no authority to sell the land or on the ground that though his father entered into the agreement Ext. D-18, his constituted attorney defendant 34 acted as a mere rubber stamp.”

18.He next cited in Alamelu Ammal and E.G. Durairajan Vs.

Govindasamy Naicker(2003) 2 MLJ 99) of Hon’ble Madras High court that

Section 43 of the Transfer of Property Act deals with ‘Transfer by 11 unauthorized person, who subsequently acquires interest in property” and it states, “Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the same option property affected by a deed, attests that deed, his attestation should be taken as proof of his consent to and knowledge of the correctness of the recitals in the deed. Therefore, in the facts and circumstances of the case,

A and R were stopped from contending that M had only a life interest and did not have an absolute interest in the property in question and consequently, the plaintiff as the successor in interest of A and R, is also stopped from putting forward that contention.”

19.It is pointed out in the written arguments of the respondents that the appellant/plaintiff failed to examine her vendor notwithstanding the fact that the vendor is very much alive and it is contended that filing is different from the proof of documents. There is no explanation by the appellant/plaintiff on this aspect. The contention of the respondents/ defendants is that Ex.A1 is a fake document. Therefore, the burden is heavy on the appellant/plaintiff to prove Ex.A1 sale deed in favour of

PW1. In this context, the evidence of DW1 is that he does not know that

Karunamma executed a document in favour of plaintiff in respect of the plaint schedule property and the 4th defendant attested the said 12 document. DW2 evidence affidavit was filed but eschewed from consideration by the trial court because of no cross examination. Here, the learned appellant's counsel cited in Iqbal Basith and others Vs. N.

Subbalakshmi and others (Civil Appeal No.1725 of 2010, dt.14.12.2020)

of Hon'ble Supreme Court of India that “having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in illustration (g) of Section 114 of the Evidence Act, 1872”.

But the plaintiff cannot depend upon the weakness of the defendants case and she has to stand or fall on her own legs. This citation is equally applicable to the appellant/plaintiff, inasmuch as, PW2 evidence affidavit was also eschewed from consideration because he was not tendered for cross examination.

20.It is the plaintiff's case that D4 is the wife of D3 and D2 is in their pocket. D1 married the sister of D2. It is contended by the plaintiff that all of them colluded together and got filed OS.No.8 of 2006 in the Prl.

Junior Civil Judge's Court, Chilakaluripet on the foot of suit promissory note as if it was executed by D3, D4 in favour of D2 wherein D3, D4 suffered collusive decree exparte and brought the schedule property for sale, but the plaintiff was kept in dark. Admittedly, the schedule property was sold on 30-12-2009 in EP.No.37 of 2008 in OS.NO.8 of 2006 and it was contended by the plaintiff that they managed the 1st defendant as auction purchaser. However, in the given facts and circumstances, it cannot be believed that the plaintiff was kept in dark. It is as well open to the 13 plaintiff to participate in the EP proceedings by filing a claim application in respect of the schedule property. Admittedly, no such attempt was made by PW1 in EP.No.37 of 2008 in OS.No.8 of 2006. PW1 admitted that her brother-in-law Raja Rao solved the monetory disputes between D2 and

D4. PW1 is aware that D2 filed a suit against D3 and D4 for recovery of amount basing on the promissory note. When she is aware, it is not known what prevented her to participate either in the suit proceedings or in the

EP proceedings subsequently. Admittedly the EP proceedings culminated into the issuing of sale certificate. On the other hand, it is the contention of the defendants that D3, D4 used to borrow money from D2 and in that connection, D4 executed Ex.A3 gift deed dt.28.03.2003 in favour of D2 and later it was revoked by D4 under revocation deed dt.15.3.2004 due to misunderstanding between them. It is the contention of the defendants that neither D2 nor D4 had knowledge about the existence of Ex-A1 registered sale deed dt.15.03.2004. Further as D3, D4 failed to repay the amount under demand promissory note, D2 filed OS.No.8 of 2006 and obtained decree and later filed EP No.37 of 2008 and brought the property for sale (suit schedule property herein) on 30.12.2009 wherein D1 became the auction purchaser and the EP was coming for issuing the sale certificate in favour of auction purchaser/D1 and the present suit is filed by the plaintiff in order to create unnecessary litigation to grab the schedule property by threatening D1 and D2. There is no dispute that the proceedings in suit and EP have become final and by now sale certificate also must have been issued to the auction purchaser/D1/ respondent. It is seen from DW1 also that he purchased the schedule property but the 14 document was reduced to writing as gift deed and as D4 demanded him to pay additional price due to hike and as DW1 refused the same, the gift deed was cancelled at the intervention of elders. It is further seen from

DW1 that he lent Rs.33,000/- to D4 in the year 2003 and obtained a pronote from D4. Thus, it is clear that the suit transaction is prior in time in the year 2003 than Ex.A1 sale deed transaction in the year 2004.

Therefore, the suit transaction in OS.No.8/2006 prevails over Ex.A1 transaction. There is no basis for the contention of the appellant/plaintiff that the decree and EP proceedings are collusive in nature. Such collusiveness has not been proved by the appellant/ plaintiff.

21.However, the learned appellant's counsel relied upon the cross examination of DW4, who is 3rd defendant herein. Admittedly,D4 is wife of

D3. It is seen from DW4 also that they have borrowed meagre amount from 2nd defendant under a promissory note in favour of D2 and later they were unable to pay the same and later suit proceedings have emerged after the

Ex.A3 gift deed dt.28.03.2003. Later it came to their notice that the site value is higher than the debt of D2. Then D3, D4 approached Satuluri Raja

Rao and expressed their grievance. Then Raja Rao settled the matter and directed D4 to revoke the gift deed. It is true that DW3 identified the signature of his wife as third attestor of Ex.A1.

22.The learned appellant's counsel cited in Thangamani Vs.

Ganesan (Second Appeal(MD) No.136 of 2010, dt.23.01.2014) of Hon'ble

Madras High court that “the principle entailed in Sec.41 of the Transfer of

Property Act, 1882 is against the general principle which states that no person can transfer title better than himself (nemo dat quad non habet).

15

It is an exception to this principle because here the real owner is giving permission to ostensible owner or benamidar to portray himself as real owner. So the real owner cannot claim against the ostensible owner once he sells the property because the real owner allowed this situation to prevail in the first place. The following three things must be there to make a transfer by an ostensible(apparent) owner valid: Transfer is with consideration – Sec.41 does not apply to gifts or gratuitous transfers. If the transfer is with consideration, it may be any kind of transfer of property eg. Sale, exchange, mortgage or lease. Transferee acts in good- faith. It is necessary that transferee acts in good faith, i.e. he has purchases the property in honest belief that transferor has power to transfer the property. Good – faith means bona fide intention. If the person purchasing the property knows that transferor is merely an apparent owner his intention is not bonafide and there is no good faith on his part. Thus he won’t be protected. Reasonable care by the transferee – the transferee must have exercised reasonable care in ascertaining the title and authority of transferor. Reasonable care means that care which a man of ordinary prudence should take while making inquiries regarding the title of and immovable property.” But in the present case, Ex.A1 sale deed itself has been disputed by the defendants. The burden does not shift to the defendants and it is the whole burden of the plaintiff/appellant to prove that she is entitled for declaration.

23.It is true that defendants have not made any efforts to evict the plaintiff from the plaint schedule property from the year 17.03.2004 and they never asked the plaintiff about her living in the suit schedule 16 property. It is, however, noticed from DW4 that Raja Rao allowed the plaintiff to reside in the suit schedule property and pay the amount after selling the property. On the basis of such permissive possession, it is not open to the appellant/plaintiff to seek for declaration of the property.

Hence although the learned appellant's counsel relied upon the above said part of cross examination in the evidence of DW4, on that basis the suit cannot be decreed.

24.PW1 did not file any document that Karunamma was the second wife of Addanki Somaiah. PW3 does not know about the marriages of Somaiah and Sujanmma. According to DW1 Addanki Pushpa Latha, her marriage was performed 30 years ago and one year after that Somaiah died. As per DW3, he personally attended the first and second marriages of

Karunamma.

25. Although there is no evidence on behalf of the appellant / plaintiff regarding assigned land, it is submitted by the learned counsel representing the appellant/ plaintiff that when the property is assigned land, the defendants have no right to execute the document in execution of the decree. Here, in this context, the learned appellant's counsel cited in Government of Andhra Pradesh and another Vs. K. Varalakshmi and others (Civil Appeal No.3673 of 2009 dt.27.11.2014) of Hon'ble Supreme

Court to the effect :

“Section 3: Prohibition of transfer of assigned lands 1) Where

before or after the commencement of this Act, any land has been

assigned by the Government to a landless poor person for purposes of cultivation or as a house site, then, nothwithstanding anything to 17 the contrary in any other law for the time being in force or in the deed of transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred, and accordingly no right or title in such assigned land shall vest in any persons acquiring the land by such transfer. 2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange or otherwise.

3) Any transfer or acquisition made in contravention of the provisions of sub-section 1) or sub-section 2) shall be deemed to be null and void. 4) The provisions of this section shall apply to any transaction of the nature referred to in sub-section 2) in execution of a decree or order of a civil court or of any award or order of any other authority. 5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house site on the date of such commencement.”

26. He also cited in M. Anumakka and another Vs. Turpu Gopal

Reddy (2009(2) L.S. 129) of Hon'ble High Court of Andhra Pradesh at

Hyderabad that “Thus, from the scheme of A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 (Act 9 of 1977) and more particularly in view of the specific restriction imposed in sub-section 4 of Section 3 of the

Act, the respondent/decree holder is precluded from beginning the E.P

Schedule property which is an assigned one for attachment and sale in execution of the decree passed in his favour by the civil Court.” The settled law is that no evidence without pleadings can be looked into, in the case on hand, there is not only no pleadings but also no evidence 18 regarding this prohibition of assigned land. Basing on the mere citations, the point cannot be decided.

27.It is seen from the record that the suit schedule property was already sold in EP.No.38 of 2008 on 30.12.2009. It is further seen that the promissory note of the year 2003 in OS.No.08 of 2006 is prior in time than

Ex.A1 sale deed dt.15.03.2004. When the plaintiff's possession is a permissive possession by one Raja Rao as per the evidence of DW4, the contention of the plaintiff that she is absolute owner of suit schedule property is devoid of merit. It is further seen that the plaintiff has not proved the absolute title over the suit schedule property. Further under

Sec.41(a) of the Specific Relief Act, 1963, an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. Thus, the appellant/ plaintiff failed to prove that she is entitled for declaration and also injunction both on facts and law. Thus, this Court is of opinion that the trial court has rightly dismissed the suit of the appellant/ plaintiff.

There are no grounds to interfere with. The two points are held against the appellant/plaintiff.

28.In the result, appeal is dismissed. No costs. The trial court's decree and judgment are confirmed.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me through electronic media, this the 29th day of April,

2021.

sd/- K.Sreenivasa Rao

XIII Addl. District Judge, Narasaraopet.

19

Appendix of Evidence

Witnesses Examined

No oral or documentary evidence is adduced on either side.

ILD/- K.S.Rao

XIII ADJ., NRT.,

Copy to:

The Prl. Junior Civil Judge, Chilakaluripet.

//True copy//

XIII ADJ., NRT.,

20

In the Court of the XIII Addl. District Judge: Narasaraopet,

Present:-Sri K. Sreenivasa Rao, XIII Addl. District Judge, Narasaraopet,

Thursday, this the 29th day of April, 2021,

Appeal Suit No.76 of 2016

( OS No.49/2010 on the file of P J C J,Chilakaluripet)

Between:

Sathuluri Satyavathi, w/o Rayappa, Hindu, aged 45 years, Coolie work, R/o d.No.11-77/2, East Malapalli, Chilakaluripet town And Mandal,Guntur District.

...Appellant/Plaintiff

And

1.Addanki Rajarao, s/o Kotaiah, Hindu, aged 55 years, R/o East Malapalli Chilakaluripet town and Mandal, Guntur District.

2.Addanki Pushpalatha, w/o Francis, Hindu, aged 45 years, Housewife, R/o D.No.11-302, East malapalli, Chilakaluripet Town & Mandal, Guntur District.

3.Gudipudi Joseph, s/o Bala Swamy, Hindu, aged 37 years,

4.Gudipudi Aruna, w/o Joseph, Hindu, aged 30 years, Housewife, Respondents 3 and 4 are residents of Vignanapuram, Phirangipuram Mandal.

...Respondents/ defendants

On appeal filed against the decree and order passed in OS

No.49/2010 on the file of Prl. Junior Civil Judge's Court, Chilakaluripet

dated 30.05.2015.

Between:

Sathuluri Satyavathi...Plaintiff

And

1.Addanki Rajarao 2.Addanki Pushpalatha 3.Gudipudi Joseph

4.Gudipudi Aruna...Defendants

This appeal is preferred against the decree and judgment of the Prl.

Junior Civil Judge's Court, Chilakaluripet in OS No.49 of 2010 dated 30.5.2015 dismissing the suit for declaration and permanent injunction.

21

Appeal is presented on :27.10.2015

Appeal is filed on:23.12.2015

Valuation of this being an appeal filed against the decree and judgment of the lower Court and the value of the schedule property is

Rs.82,450/-; On which a Court fee of Rs.2146/- is herewith paid U/s.24(b) r/w 49 of APCF & SV Act.

Value of the appeal for the purpose of jurisdiction is same as above.

This appeal is coming on 12.04.2021 before me for arguments in the presence of Sri Kodali Nageswara Rao, Advocate for the Appellant/ plaintiff and of Sri S. Peter Paul, Advocate for the respondents/defendants and upon hearing and considering the material on record, having stood over for consideration till this day, this Court doth order and decree as follows:

1. That the appeal be and the same is hereby dismissed; and

2. that the trial court's decree and judgment are confirmed; and

3. that each party do bear their own costs.

Given under my hand and the seal of the Court, this the 29th day of April, 2021.

XIII Addl. District Judge, Narasaraopet.

TABLE OF COSTS

For Description For Appellants For Respondents cm&fc not filed Vakalat Appeal fees Process Pleaders Fee Writing Charges Typing Charges Total

XIII ADJ., NRT.,

1

In the Court of the XIII Addl. District Judge: Narasaraopet,

Present:-Sri K. Sreenivasa Rao, XIII Addl. District Judge, Narasaraopet,

Tuesday, this the 27th day of April, 2021,

Original Suit No.14 of 2012

(old OS.No.65/2008)

Between:

Swamy Subbarao, s/o Pullaiah, Hindu, aged 59 years, Business, R/o D.No.4-1-28, Talluri bazar, Pathuru, Narasaraopet, Guntur District.…Plaintiff AND

1.Kalyanam Phani Kumar (died)

2.Kalyanam Pardhasaradhi(died)

3.Kalyanam Anjana Devi, w/o late Rangarao,Hindu, aged 78 years, housewife,

4.Kalyanam Kusuma, w/o late Phani Kumar, Hindu, aged 50 years, teacher,

5.Kalyanam Naga Vamsidar, s/o late Phani Kumar, Hindu, aged 24 years, Private employee, (5th defendant name was altered as per orders in IA.No.696 of 2019, dt.18.07.2019.)

6.Kalyanam Sesidhar, s/o late Phani Kumar, Hindu, aged 22 years, student, Defendants 3 to 6 are R/o Lakshmipuram Village, Challapalli Mandal, Krishna District. (Defendants 3 to 6 are added as per the orders in IA.No.304 of 2017, dt.27.11.2018.)

7.Kalyanam Jhansi Lakshmi, w/o late Pardhasaradhi, Hindu, aged 58 years, housewife, r/o D.No.5-10-7, Pandurangaswamy temple, Gandhi Chowk, Narasaraopet.

8.Pagadala Indira, w/o Srinivasarao, Hindu, aged 45 years, housewife, R/o Flat No.202, Sai Vigneswara Heavens, 5th line, Brundavan Gardens, Guntur.

9.Lanka Nirmala, w/o late Venkateswara Rao, Hindu, aged 38 years, Housewife, R/o D.no.5-10-, Pandurangaswamy temple, Gandhi chowk, Narasaraopet. (defendants 7 to 9 are added as per the orders in IA.No.595 of 2018, dt.27.11.2018)

...Defendants

This suit is coming on 01.04.2021 before me for arguments in the presence of Sri N. Lakshmi Narayana, Advocate for the Plaintiff and of

Sri B. Anil Kumar, Advocate for the defendant Nos.3, 5 to 9 and 4th 2 defendant having remained exparte and the defendants 1 and 2 died.

Upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This suit is filed for specific performance of agreement of sale dt.26.02.2005.

02.According to the plaintiff, D1 is the brother's son of the D2. D1 and D2 have rights and title over the property. They agreed to sell the suit schedule property to the plaintiff on 26.02.2005 for Rs.1,20,000/- per one foot width without considering the length of the same. The value of the schedule property is like this : one foot value of width of the property is

Rs.1,20,000/- and as the width is 14 feet, the amount is arrived at

Rs.1,20,000/- x 14 feet = 16,80,000/-. At the time of agreement, the defendants 1 and 2 received Rs.4,00,000/-. The balance amount has to be paid within three months. The defendants 1 and 2 agreed that at the time of registration, they would take the daughters of D2 Indira Devi and

Nirmala in executing the registered sale deed in favour of plaintiff. The plaintiff also made part payment of Rs.25,000/- to the defendants 1 and 2 on 08.06.2005 to the defendants 1 and 2 and the date was extended up to 8.11.2005. The same was endorsed on the back of the first page of suit agreement of sale.

03.The plaintiff is ready and willing to perform his part of contract. The plaintiff made repeated demands personally and through

L.Rs seeking the defendants 1 and 2 to perform their part of contract by receiving the balance sale consideration of Rs.12,55,000/- out of the total 3 sale consideration of Rs.16,80,000/-. The plaintiff got issued legal notice on 21.04.2007, but the plaintiff, to his surprise received a copy of plaint in

O.S.No.94 of 2005 on the file of Addl. Senior Civil Judge's court,

Narasaraopet, seems to have been filed after the suit agreement of sale.

That suit was filed by Aakula Bhanumathi and Nimmala Vasundhara against the defendants 1 and 2 and others wherein the present plaintiff was impleaded as D5. That suit was filed with false allegations for partition of schedule property. The plaintiff also is contesting that suit as D5. After the exchange of legal notices, the defendants 1 and 2 requested the plaintiff orally to await some more time and however, it is delayed on one pretext or other. While so, D1 died intestate on 01.01.2017 leaving behind him D3 to D6, who are his mother, wife and sons. They are in possession and enjoyment of the estate of late Phani Kumar (D1). D2 also died intestate on 28.03.2018 leaving behind him D7 to D9 who are his wife and daughters.

Hence, the suit.

04.Written statement was filed by the defendants 1 and 2.

According to them, the suit is not maintainable either on law or on facts.

For the legal notice of the plaintiff, they got issued a suitable reply notice.

The contents of the suit agreement of sale entered into by D1 and D2 with plaintiff are misinterpreted by the plaintiff in order to gain time and drag on the proceedings. The plaintiff being a party to OS.No.94 of 2005 ought to have taken all the pleas which are put forwarded in the present suit, but he remained exparte in OS.No.94 of 2005, which was filed by the daughters of Kalyanam Narayana. The plaintiff is fully aware of the

OS.No.94 of 2005 and the present suit has to be determined subject to the

4 result of OS.No.94 of 2005. The suit agreement of sale is not binding upon the defendants as there are several issues to be determined regarding the endorsement for Rs.25,000/- on 08.06.2005 as it is created and concocted to save limitation.

05.Adoption memo was filed by the defendants 3, 5 to 9 adopting the written statement of D1 and D2. D4 remained exparte

06.Basing on the above pleadings, the following issues are settled for trial:

1.Whether the suit agreement of sale and the part payment endorsements thereon, are true and binding on the defendants?

2.Whether the plaintiff is always ready and willing to perform his part of agreement of sale?

3.Whether the plaintiff is entitled to the decree of specific performance as prayed for?

4.Whether the plaintiff is entitled to decree of the advance amount as prayed for?

5.To what relief?

07.On behalf of the plaintiff, P.W.1 and P.W.2 were examined and

Ex.A1 to Ex.A7 were marked. On behalf of the defendants, DW1 and D.W.2 were examined and Ex.B1 to Ex.B4 were marked.

08.Heard the arguments.

09.ISSUES 1 and 2:

Ex.A1 agreement of sale dt.26.02.2005 is not disputed by the defendants 1 and 2. Therefore, it shall be taken that Ex.A1 suit agreement of sale dt.26.02.2005 has been entered into between plaintiff and D1, D2 to sell the suit schedule property @ Rs.1,20,000/- per one foot width 5 without considering the length of the same. Therefore, Rs.1,20,000/- x 14 feet = 16,80,000/-. While so, the advance amount of Rs.4,00,000/- on the given date is also not disputed by the defendants 1 and 2. The balance amount is agreed to be paid within three months from the date of

Ex.A1/agreement of sale.

10.But, there is serious contest regarding Ex.A2 part payment endorsement of Rs.25,000/- dt.08.06.2005, which was endorsed on the reverse of first page of Ex.A1, also extending the stipulated time up to 08.11.2005. Therefore, the burden lies upon the plaintiff to prove Ex.A2 part payment endorsement for Rs.25,000/- dt.08.06.2005. In this context, the evidence of plaintiff is feeble. As per PW1, Ex.A2 endorsement took place in the office of scribe by name Satyanarayana at Narasaraopet. But the said Satyanarayana, scribe was not examined by the plaintiff. PW1 did not observe who prepared the endorsement, but D1 and D2 subscribed their signatures on Ex.A1 and A2.

11.One Rama Chandra Reddy is the attestor to Ex.A2 and he was examined as PW2 herein. PW2 spoke that he attested the Ex.A2 part payment endorsement. He alone endorsed the same. While so, PW2 herein deposed as DW5 in O.S.No.94 of 2005 filed for partition on 08.06.2005 and it was decreed on 31.10.2011. Significantly, Ex.A2 part payment endorsement was made and OS.no.94/2005 was filed on same date i.e., 8.6.2005. Ex.B1 is written statement in O.S.No.94 of 2005. The crucial evidence from DW5 therein who is PW2 herein is marked as Ex.B2 to Ex.B4, in respect of Ex.A2 part payment endorsement. PW2 herein (DW5 there in) is aware that D5 therein (plaintiff herein) purchased the suit schedule 6 property and also the other details from one Bhaskara Rao. Admittedly, D1 and D2 are different persons. Ex.B3 is that D5 (plaintiff herein) did not give any notice to said Bhaskara Rao after expiry of stipulated period.

Ex.B3 is important to the effect that except writing the agreement which is Ex.B2, no other transaction took place in his presence. Therefore, it is clear from PW2, who is DW5 therein, that except Ex.B2 suit agreement of sale dt.26.02.2005 no other transaction took place in his presence. If that is so, it is not open to PW2 to state that Ex.A2 transaction dt.08.06.2005 taken place in his presence. It is made clear further by PW2 under Ex.B4 that subsequent to Ex.B2 agreement of sale dt.26.02.2005, no other transaction taken place in his presence. Had it (Ex.A2) really taken place,

PW2 herein who is DW5 therein would have stated the same in his evidence. Moreover, under Ex.B1 written statement filed by D5 in OS.No.94 of 2005 also there is silence regarding Ex.A2 part payment endorsement for

Rs.25,000/- dt.08.06.2005. A perusal of entire contents of written statement under Ex.B1 never discloses about the payment of Rs.25,000/- on 08.06.2005. It is suggested on behalf of the defendants to PW2 that

Ex.A2 signatures are forged. The plaintiff tried to obtain expert opinion on

Ex.A2, but it was not possible for want of signatures of concerned persons pertaining to the period 2005 and also due to the death of two executants i.e. D1 and D2. However, the burden never shifts from the plaintiff to prove Ex.A2 endorsement. Non denial of signature of PW2 on Ex.A2, does not mean that Ex.A2 has been proved by the plaintiff.

12.On 06.04.2009 OS.No.65 of 2008 (original number of this suit) on the file of District Court, Guntur has been decreed exparte. Thereafter, 7 the plaintiff deposited Rs.12,80,000/- as per the exparte decree.

Subsequently under IA.No.98/2010, exparte decree was set aside.

Thereafter OS.No.65 of 2008 was transferred to this Court, after the establishment of this Court in Narasaraopet and the suit was re-numbered as OS.No.14 of 2012. The fact remained that the plaintiff deposited balance sale consideration of Rs.12,80,000/-. It is, however, submitted by the learned plaintiff's counsel that by mistake in calculation, they have deposited Rs.12,80,000/- including Rs.25,000/-. Originally, the total sale consideration is Rs.16,80,000/-, out of which Rs.4,00,000/- was paid on 26.02.2005 and the balance is payable within three months. The balance shall come to Rs.12,55,000/-. While so, the plaintiff contends that he made part payment under Ex.A2 for Rs.25,000/- on 08.06.2005. Therefore, the balance shall come to Rs.12,55,000/-. But the plaintiff on exparte decree deposited Rs.12,80,000/- including Rs.25,000/-[said to be paid under Ex.A2 endorsement].

13.Whether payment of balance sale consideration after decree was passed amounts to readiness and willingness? Answering 'No' the learned defendants' counsel cited in Nalamathu Venkayya (died) per LR

Vs. B.S.Neelkanta and another (2005(6) ALT 585(D.B.) of Hon'ble A.P

High court to the effect that Vendee neither deposited the amount in the

Court while filing the suit, nor did he enclose a demand draft with plaint and depositing of the amount in court by vendee as per court direction, does not amount to performance of his part of the contract.

8

14.He also cited in Inderchand Jain(D) through L.Rs Vs.

Motilal(D) through L.Rs (2009(7) ALT 49(SC) of Hon'ble Supreme Court in which it is held as under:

“Section 16(c) of the Specific Relief Act, 1963 mandates that the discretionary relief of specific performance of the contract can be granted only in the event the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of contract. Such readiness and willingness on the part of the plaintiff is not confined only to the stage of filing of the plaint but also at the subsequent stage, viz., at the hearing. It has been so held in Umabai and another Vs.

Nilkanth Dhondiba Chavan(Dead) by Lrs. And another 2005(4) SCJ 164 = (2005) 6 SCC 243 in the following terms:

It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff- respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on record.”

15.It is true that the original number of this suit was OS.No.65 of 2008 and it was decreed exparte on 06.04.2009 on the file of IV Addl.

District Judge's court, Guntur. As directed by the Court in the decree, PW1

deposited the balance sale consideration of Rs.12,80,000/- on 17.4.2009.

It is true that he did not deposit the balance sale consideration either at the time of institution of OS.No.65 of 2008 or during its pendency. The contention of the plaintiff that by mistake in calculation they deposited

Rs.12,80,000/-including the Rs.25,000/- [claimed under Ex.A2] is not tenable. It is admitted by PW1 that as per Ex.A1, the balance amount of 9

Rs.12,80,000/- is payable by 25.05.2005. However, no such amount was paid by the plaintiff on the ground that injunction order was pending in

OS.No.94 of 2005 and that there was no attempt made by the defendants 1

and 2 to get the same vacated. It is an admitted fact that the balance amount was not paid by 25.05.2005 and it was paid by virtue of exparte decree, on 17.04.2009. The question of measurements of the schedule property does not arise, because PW1 already deposed that on the date of

Ex.A1, the schedule property was measured. It is seen from PW1 that the injunction obtained by the plaintiff in OS.No.94 of 2005 was in force till the disposal of the said suit. Admittedly, the present suit was filed during the pendency of OS.No.94 of 2005. PW1 did not issue any notice to the daughters of D2asking them to join D1 and D2 to execute the sale deed in his favour.

16.Due to the above evidence, it cannot be taken that the plaintiff made part payment Rs.25,000/- on 08.06.2005 under Ex.A2.

17.While so, under Article 54 of the Limitation Act, 1963, the period of limitation for filing specific performance is 3 years and the time begins to run within 3 years from the date where it is fixed for performance or if no such date is fixed when the plaintiff has notice that the performance is refused. Here, the date was fixed for the performance under Ex.A1 within 3 months. The date comes to end by 26.05.2005. While so, the suit was originally filed before the District Court, Guntur on 31.12.2007 i.e. within the period of limitation.

18.In this connection, the learned plaintiff's counsel cited in

Madamsetty Satyanarayana Vs. G. Yellogi Rao and two others (AIR 1965

10

SC 1405) of Hon'ble Supreme Court, the relevant portion of which is

extracted:

“Under section 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary: discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative; they are not intended to be exhaustive. As Art.113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a court to, exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in section 22 of the Specific Relief

Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that field. Diverse situations may arise which may induce a court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal.

----------------------------------------------------------------------------------- -----------------------------------------------------------------------------------

It is necessary to know the fundamental difference between the two systems-English and Indian-qua the relief of specific performance. In

England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere 11 delay-the time lag depending upon circumstances-may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation.

If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time : in either case, no question of equity arises.”

19.While so, the plaintiff got issued Ex.A3 legal notice dt.21.04.2007 for the specific performance of contract of sale which was replied on 18.05.2007 under Ex.A6.

20.There is serious contest between the parties regarding the readiness and willingness on the part of the plaintiff to perform his part of contract, in support of their respective contentions. While PW1 claims that he is always ready and willing to perform his part of contract, the same has been denied by the defendants. The burden lies upon the plaintiff to prove the said fact. In this context, OS.No.94/2005 and OS.No.147/2002 come into play. As per PW1, 1st defendant and his mother filed

OS.No.147/2002 against D2 and his brother in respect of the present suit

schedule property and the abutting house property and obtained decree and in the said partition, the schedule property herein fell to the share of defendants 1 and 2 herein. DW1 (D2) also admitted that D1, his nephew, his mother and his sister-in-law filed O.S.No.147/2002 on the file of Prl.

Senior Civil Judge's Court, Narasaraopet for partition against him and his

brother Bhaskar Rao. His sisters were not parties to the said suit. In the said suit, DW1 and his brother Bhaskar Rao and D1 Kalyanam Phani Kumar entered into a compromise wherein the schedule property fell to the share 12 of D1 and D2 herein jointly and they have offered to sell the same to the plaintiff under Ex.A1 agreement of sale. Therefore, it is not open to the defendants to contend that non joining of daughters of D2 in Ex.A1 agreement is fatal. There is clear recital in Ex.A1 agreement that daughters of D2 are also liable to execute the sale deed along with D1 and

D2.

21.Here, the learned plaintiff's counsel cited in Bhanwar Singh

Vs. Puran and Ors.(AIR 2008 SC 1490) of Hon'ble Supreme Court that :

“ It is true that the first Court of Appeal also entered into the question of legal necessity for Sant Ram to alienate the property in favour of the contesting respondents but the said issue was considered in the alternative to the principal issue. If the First

Appellate Court was correct in its opinion and we do not see any reason to differ therewith that Section 6 of the Hindu Succession

Act was not attracted to the facts of this case in view of the fact that Sant Ram and his sisters having partitioned their properties became owners to the extent of 1/4th share each, he had the requisite right to transfer the lands falling within his share.

Furthermore, in terms of Section 19 of the Act, as Sant Ram and his sisters became tenants in common and took the properties devolved upon them per capita and not per stripes, each one of them was entitled to alienate their share, particularly when different properties were allotted in their favour.”

22.It is true that PW1 did not issue any notice to the daughters of

D2 to join the defendants 1 and 2 to execute the sale deed in his favour. In

Ex.A6 reply notice dt.18.05.2007, the defendants 1 and 2 denied Ex.A2 endorsement for Rs.25,000/- dt.08.06.2005 and specifically mentioned that the agreement has been dilated with lame excuses.

13

23.PW1 admitted that the sisters of D2 Aakula Bhanumathi and

Nimmala Vasundhara filed OS.No.94 of 2005 on the file of Addl. Senior Civil

Judge's Court Narasaraopet for partition of suit schedule property in which

PW1, defendants 1 and 2 are the defendants therein. PW1 is D5 therein.

OS.No.94 of 2005 was decreed on 31.10.2011. PW2 herein also gave

evidence in OS.No.94 of 2005 as DW5, as discussed above. It is submitted by the learned plaintiff's counsel that in OS.No.94 of 2005 the two sisters of D2 obtained interim order restraining the defendants not to proceed with the property and hence, Ex.A1 suit agreement of sale was not proceeded with. There is no denial of the same by the learned defendants' counsel. The contention of the learned defendants' counsel that when the suit schedule property is not the specific property of D1 and D2, daughters of D2 got share in the property, is not correct. Because, there is admission by DW1 himself as mentioned above that the schedule property fell to the share of D1 and D2 herein in the partition out of the compromise in

OS.No.147 of 2002. Even though originally the daughters are not added as

parties to the suit, on the death of D2, the daughters are added as D7 to

D9. D3 to D6 are the L.Rs of D1.

24.However, after some part of cross examination DW1 died.

Here, the learned defendants counsel cited in G. Gopalakrishna (since

died) per LRs, G. Pramila and another Vs. G. Venugopal and another

(2013(4) ALT 295) of our Hon'ble High Court that “if the witness was cross examined to a certain extent but was not alive thereafter, the evidence need not be ignored altogether”. It is held that “though evidence of the witness is partly recorded, it cannot be eschewed altogether even if he 14 dies during recording of evidence.” Hence, the evidence of DW1 to the extent available can be taken into consideration.

25.DW2 affidavit was though filed, it was made by him clear in the cross examination that the contents of the affidavit of DW1 are reiterated in his chief affidavit. DW1 is junior paternal grandfather of

DW2. DW2 was not present at the time of execution of agreement of sale and he does not know the details. K. Bhaskar Rao is another grandfather of

DW2.

26.Due to the above reasons, though Ex.A1 agreement of sale dt.26.02.2005 is true and binding on the defendants, Ex.A2 part payment endorsement for Rs.25,000/- dt.08.06.2005 is not proved and not binding on the defendants. Due to the above mentioned discussion also, it is concluded that the plaintiff is not always ready and willing to perform his part of contract. Issues 1 and 2 are accordingly concluded.

27.ISSUE NO.3

In view of the discussion for the above mentioned two issues, it is clear that the plaintiff is not entitled for the specific performance of agreement of sale as prayed. Issue No.3 is held against plaintiff.

28.ISSUE NO.4

The total sale consideration is Rs.16,80,000/- [Rs.1,20,000 per one foot x 14 foot]. While so, advance amount of Rs.4,00,000/- was paid as on Ex.A1 agreement of sale dt.26.02.2005. By virtue of exparte decree dt.17.4.2009 on the file of IV Addl. District Judge's court, Guntur in

OS.No.65 of 2008, the plaintiff deposited balance sale consideration of

15

Rs.12,80,000/- on 17.04.2009. Thus Rs.4,00,000/- + Rs.12,80,000/- =

Rs.16,80,000/-. Due to the peculiar facts and circumstances of the case, including the intricacies of OS.No.94/2005 and OS.No.147/2002 etc., the plaintiff is entitled for refund of said amount. This, issue is held in favour of the plaintiff.

29.ISSUE NO.5

In the result, the suit for specific performance of agreement of sale is dismissed. Alternatively, the plaintiff is entitled for refund of

Rs.4,00,000/- + Rs.12,80,000/- = Rs.16,80,000/-. No costs.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me through electronic media, this the 27th day of

April, 2021.

Sd/- K. Sreenivasa Rao

XIII Addl. District Judge, Narasaraopet.

Appendix of Evidence

Witnesses Examined

For Plaintiff:

P.W.1-Swamy Subba Rao

P.W.2-Swarna Rama Chandra Reddy

For Defendants:

D.W.1-Kalyanam Pardhasaradhi

D.W.2-Kalyanam Naga Vamsidhar

Exhibits Marked

For Plaintiff Ex.A1-Agreement of sale dt.26.02.2005. Ex.A2-Part payment endorsement of Rs.25,000/- dt.08.06.2005. Ex.A3-Office copy of legal notice dt.21.04.2007. Ex.A4-Postal Receipts Ex.A5-Postal Acknowledgements Ex.A6-Reply notice given by D2 dt.18.5.2007 Ex.A7-Photo(marked by DW2) 16

For Defendants

Ex.B1-Served copy of written statement in OS.No.94 of 2005 marked through PW1 Ex.B2-Relevant portion of evidence of PW2 as PW5 in OS.No.94 of 2005 Ex.B3-Relevant portion of evidence of PW2 as PW5 in OS.No.94 of 2005 Ex.B4-Relevant portion of evidence of PW2 as PW5 in OS.No.94 of 2005

ILD/- K. S. Rao

XIII ADJ., NRT.,

//True Copy//

XIII ADJ., NRT.,

17

In the Court of the XIII Addl. District Judge: Narasaraopet,

Present:-Sri K. Sreenivasa Rao, XIII Addl. District Judge, Narasaraopet,

Tuesday, this the 27th day of April, 2021,

Original Suit No.14 of 2012

(old OS.No.65/2008)

Between:

Swamy Subbarao, s/o Pullaiah, Hindu, aged 59 years, Business, R/o D.No.4-1-28, Talluri bazar, Pathuru, Narasaraopet, Guntur District.…Plaintiff AND

1.Kalyanam Phani Kumar (died)

2.Kalyanam Pardhasaradhi(died)

3.Kalyanam Anjana Devi, w/o late Rangarao,Hindu, aged 78 years, housewife,

4.Kalyanam Kusuma, w/o late Phani Kumar, Hindu, aged 50 years, teacher,

5.Kalyanam Naga Vamsidar, s/o late Phani Kumar, Hindu, aged 24 years, Private employee, (5th defendant name was altered as per orders in IA.No.696 of 2019, dt.18.07.2019.)

6.Kalyanam Sesidhar, s/o late Phani Kumar, Hindu, aged 22 years, student, Defendants 3 to 6 are R/o Lakshmipuram Village, Challapalli Mandal, Krishna District. (Defendants 3 to 6 are added as per the orders in IA.No.304 of 2017, dt.27.11.2018.)

7.Kalyanam Jhansi Lakshmi, w/o late Pardhasaradhi, Hindu, aged 58 years, housewife, r/o D.No.5-10-7, Pandurangaswamy temple, Gandhi Chowk, Narasaraopet.

8.Pagadala Indira, w/o Srinivasarao, Hindu, aged 45 years, housewife, R/o Flat No.202, Sai Vigneswara Heavens, 5th line, Brundavan Gardens, Guntur.

9.Lanka Nirmala, w/o late Venkateswara Rao, Hindu, aged 38 years, Housewife, R/o D.no.5-10-, Pandurangaswamy temple, Gandhi chowk, Narasaraopet. (defendants 7 to 9 are added as per the orders in IA.No.595 of 2018, dt.27.11.2018)

...Defendants

This suit is filed for specific performance of agreement of sale dt.26.02.2005.

Plaint Presented on: 31.12.2007

Plaint filed on: 1.4.2008 18

Cause of action for the suit arose when the defendants 1 and 2 agreed to sell the schedule property for a total sum of Rs.16,80,000/- under an agreement of sale dated 26.02.2005 and when plaintiff paid

Rs.4,00,000/- on even date to them and when it was stipulated for three months for execution and on 08.06.2005 when the plaintiff paid

Rs.25,000/- to the defendants 1 and 2 towards part payment and when the same was endorsed on the back of agreement of sale and when time was further extended till 08.11.2005 and when the plaintiff has been ready and willing to perform his part of contract and when it was delayed by the defendants as such on 21.04.2007 when the plaintiff got legal notices issued and when the 1st defendant had no reply but 2nd defendant got reply issued with false allegations and when the defendants 1 and 2 committed breach of contract and when O.S.No.94 of 2005 was filed by sisters of the 2nd defendant in their collusion for partition with false allegations relating to the schedule property to deprive the plaintiff and when the same is pending and when even after legal notice correspondence defendant approached the plaintiff and postponed till date without compliance and failed to execute sale deed to the plaintiff despite demands at Narasaraopet where the suit schedule property is situated which is within the Jurisdiction of this Hon'ble Court.

Valuation of this being a suit filed for specific performance of contract dt.26.02.2005 for Rs.16,80,000/-, on which a Court fee of

Rs.19,226/-/- is herewith paid under Sec.39 of APCF & SV Act; and

Alternative relief for returning advance amount and part payment of Rs.4,25,000/-, on which a Court fee of Rs.6,726/- is herewith paid under Sec.20 of APCF & SV Act; but the plaintiff paid court fee on the higher value, no court fee need be paid on this relief.

Value of the suit for the purpose of jurisdiction is same as above.

This suit is coming on 01.04.2021 before me for arguments in the presence of Sri N. Lakshmi Narayana, Advocate for the Plaintiff and of

Sri B. Anil Kumar, Advocate for the defendant Nos.3, 5 to 9 and 4th defendant having remained exparte and the defendants 1 and 2 died.

19

Upon hearing and considering the material on record, having stood over for consideration till this day, this Court doth order and decree as follows:

01.That the suit for specific performance of agreement of sale be and the same is hereby dismissed; and

02.that alternatively, the plaintiff is entitled for refund of Rs.4,00,000/- + Rs.12,80,000/- = Rs.16,80,000/-; and

03.that each party do bear their own costs.

Given under my hand and the seal of the Court, this the 27th day of April, 2021.

XIII Addl. District Judge, Narasaraopet.

TABLE OF COSTS

For Description For plaintiff For Defendants cm&fc not filed Vakalat2-002-00 Appeal fees19226-00 Process Pleaders Fee30000-00 Writing Charges20-00 Typing Charges20-00 Total19228-00 30042-00

NB:-Copy of plaint schedule hereto attached.

XIII ADJ., NRT.,