Kilari Sreenivasa Rao

1

In the Court of the X Additional District Judge: Gurazala,

Present:- Sri K.Sreenivasa Rao, XIII Addl., District Judge, Narasaraopet, FAC X Additional District Judge, Gurazala.

Wednesday, this the 7th day of April, 2021,

Appeal Suit No.52 of 2015

(O.S.No.126/2010 on the file of Junior Civil Judge, Piduguralla) Between:

Patra Ratnakumari, W/o.Sambaiah, Hindu, Aged 33 Years, Cultivation, R/o.Guttikonda Village, Piduguralla Mandal, Guntur District.. . . Appellant/Plaintiff

And

1. Jonnalagadda Yesu, S/o.Moshe, Hindu, Aged 58 Years, Cultivation.

2. Jonnalagadda Lakshmi, W/o.Kept Mistress of Dasu, Hindu, Aged 53 Years, Cultivation.

3. Narala Nagamani, W/o.Ramarao, Hindu, Aged 38 Years, Coolie Work. All are R/o.Guttikonda Village, Piduguralla Mandal, Guntur District.. . . Respondents/defendants

An appeal filed against the decree and judgment dated 24-07-2015 on the file of Junior Civil Judge, Piduguralla in

O.S.No.126/2010.

Between:

Patra Ratnakumari. . . Plaintiff

AND

1. Jonnalagadda Yesu

2. Jonnalagadda Lakshmi

3. Narala Nagamani. . . Defendants

(The appeal against Respondent No.1/Defendant No.1 is

dismissed by this Court on 17-06-2016)

This appeal is coming on 31-03-2021 before me for arguments in the presence of Sri D.Chennaiah, Advocate for Appellant/Plaintiff and of Sri K.Kasi Viswanadham and Sri A.Srinivasa Rao, Advocates for Respondents Nos.2 and 3/Defendants Nos.2 and 3, upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

2

J U D G M E N T

This appeal is preferred against the Decree and

Judgment of the Junior Civil Judge's Court, Piduguralla in

O.S.No.126/2010, dated 24-07-2015 dismissing the suit for

Permanent Injunction.

02.The appellant is the plaintiff. According to the plaintiff, the suit schedule property originally belongs to one Jonnalagadda @ Dasari Annamma, W/o.Dasu of Guttikonda Village, Piduguralla

Mandal. The husband of Annamma predeceased her. She has no children through her husband Dasu. Therefore she brought up her sister’s son Patra Sambaiah (husband of Plaintiff). Annamma performed Sambaiah’s marriage with plaintiff, who is one of her relatives daughter. But Annamma is suffering with old age ailments, lungs and kidneys diseases for the last 5 years. She has taken treatment from the doctors and she is taking medicines regularly.

The plaintiff and her husband looked after her welfare and rendered their services towards her. While so, on 09-05-2010 Annamma out of love and affection executed a Will deed in favour of the plaintiff in a sound and disposing state of mind giving the suit schedule property to the plaintiff. On 25-05-2010 Annamma died and therefore the plaintiff got possession of the suit schedule property as per the Will

dated: 09-05-2010. The 2nd defendant herein filed O.S.No.114/2010

against the plaintiff herein. The 1st defendant is brother-in-law of 2nd defendant and 3rd defendant is daughter of 2nd defendant. The said

Will became an eye sore to the defendants, who are the distant 3 relatives of plaintiff and therefore they are causing obstruction to the plaintiff to grab the suit schedule property without any legal right. Therefore, the suit for permanent injunction restraining the defendants and their men from ever interfering with the peaceful possession and enjoyment of plaintiff over the suit schedule property and for costs.

03.Written statement was filed by defendant No.3 denying the plaint averments. It is however admitted that the suit schedule property originally belongs to one Jonnalagadda Annamma.

Annamma is wife of Dasu. But Dasu was married to Jonnalagadda

Lakshmi, who are blessed with D.3 and one Mendu Veeramma as daughters. Jonnalgadda Lakshmi and Dasu died long ago. Therefore,

Annamma looked after the welfare of D.3 and Veeramma. D.3,

Veeramma and Annamma enjoyed jointly Ac.1.36 cents in

S.No.1393/2, Ac.0.60 cents in S.No.915/4 and house property in an extent of 121 square yards in Guttikonda Village. After the death of

Annamma, D.3 and Veeramma are enjoying the above properties with absolute rights. D.3 and Veeramma are the legal representitives of Annamma, who succeeded the properties. Therefore, they brought the suit vide O.S.No.114/2010 against the plaintiff herein, her husband and against one Bandla Venkateswarlu for Permanent

Injunction. The present suit is filed by fabricating the Will as a counter blast to the suit vide O.S.No.114/2010. Further, the

Permanent Injunction against the real owner is not maintainable.

4

04.Basing on the above pleadings, the trial Court settled the following issues for trial:

1.Whether the Plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit by virtue of Will, dated: 09-05-2010?

2.Whether the Will dated: 09-05-2010 is true, valid?

3.Whether the plaintiff is entitled for permanent injunction as prayed for?

4.To what relief?

05.During the course of trial, on behalf of plaintiff, P.Ws.1 to 3 were examined and Exs.A.1 to A.4 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Ex.B.1 was marked.

Ultimately, the suit was dismissed, aggrieved by which the present appeal is preferred by the plaintiff.

06.Heard the arguments. Written arguments are filed on behalf of the appellant.

07.The point for consideration is: Whether the

Appellant/Plaintiff is entitled for Permanent Injunction?

POINT:

08.Injunction is an equitable form of relief and cannot be granted automatically by mere asking by the parties. The conduct of the parties as to the entitlement or dis-entitlement to this relief weighs in the mind of the Court. The burden lies upon the plaintiff to show that she is in possession and enjoyment of the suit schedule property and that there is interference by the defendants, so that she is entitled for permanent injunction. It is her case that originally the suit schedule property belongs to Jonnalagadda Annamma @ 5 Dasari Annamma, W/o.Dasu of Guttikonda Village. The husband of

Annamma predeceased her. As Annamma does not have children, she brought up her sister’s son Sambaiah (Plaintiff’s husband).

Annamma suffered illness. The plaintiff based her claim on

Ex.A.1/unregistered Will dated: 09-05-2010. The rival contention is that Ex.A.1/Will is forged document. Therefore, the duty casts upon the plaintiff to dispel the suspicious circumstances, if any, surrounding Ex.A.1/Will. It is seen from P.W.1 that Annamma does not have any sisters and brothers.

09. According to P.W.1 (Plaintiff), Ex.A.1/Will was scribed by one Jakka Venkateswarlu at Gurazala Sub-Registrar Office at about 1.00 P.M. As per P.W.1, Annamma subscribed her thumb impression by ink pad available at the scribe on Ex.A.1/Will. She denied that thumb impression was affixed by Kazal (Kaatuka). After 20 days of

Ex.A.1, Annamma died due to failure of two kidneys. That means she must have died on 29-05-2010 or 30-05-2010. But it is strangely mentioned in the plaint pleadings that Annamma died on 25-05-2010. Annamma got treatment at Lakshmi hospital, Krishna

Mohan hospital and Government hospital, Narasaraopet for one year before Ex.A.1/Will, said by P.W.1. But there is no such documentary evidence, admitted by P.W.1, on the ground that they were lost.

6

10.Admittedly, the suit schedule property is situated in

Piduguralla Village. But strangely Ex.A.1/Will was executed in

Gurazala. P.W.1 stated from Guttikonda they reached Karempudi in a bus and from Karempudi they went to Gurazala in an auto for the purpose of Ex.A.1/Will. One Charles and Koteswara Rao, accompanied P.W.1 and all of them went to Gurazala. As per P.W.1,

Annamma herself went to the house of Charles and brought him for attestation purpose. Koteswara Rao was also brought by Annamma for attestation purpose. According to P.W.1, the papers on which

Ex.A.1/Will was scribed were purchased at Gurazala Sub Registrar

Office. But they have not taken any documents pertaining to properties owned by Annamma to Gurazala at the time of Ex.A.1.

11.It is seen from P.W.2, who stated that he attested the

Will and that plaint schedule properties fall within the revenue limits of Piduguralla Sub Registrar Office. He does not know the reason why Ex.A.1 was scribed at Gurazala in spite of the fact that

Piduguralla is nearer to Guttikonda Village, to which village P.W.1 belongs to. Gurazala is far away than Piduguralla from Guttikonda

Village. In spite of the fact that stamp papers are available at Sub

Registrar Office, Gurazala, it is not known why no stamp paper was purchased at Sub Registrar Office, Gurazala. Because Ex.A.1 was scribed on white paper, purchased at Gurazala Sub Registrar Office, deposed by P.W.2. He further deposed that the stamp papers are available at Sub-Registrar office. P.W.2 does not know the reason for scribing Ex.A.1 on white papers, but not on stamp papers.

7 Contrary to the evidence of P.W.1 that from Guttikonda they reached Karempudi by bus and from Karempudi to Gurazala by auto, the evidence of P.W.2 is that from Karempudi to Gurazala they reached by bus. As per P.W.1, they have not taken any documents pertaining to properties of Annamma at the time of Ex.A.1. In contrast, P.W.2 stated that Annamma brought a slip containing the details of survey numbers of properties and by seeing the same

Ex.A.1 was scribed. This slip allegedly brought by Annamma was not whispered by P.W.1.

12.It is seen from P.W.1 that Annamma affixed her thumb impression by ink pad available at the scribe. Conversely, P.W.2 deposed that Annamma used Kazal (Kaatuka) for affixing her thumb impression on Ex.A.1. This is important piece of inconsistency and such suspicious circumstances have to be dispelled by the plaintiff herself. It the plaintiff’s case that Ex.A.1/Will was scribed at Gurazala

Sub Registrar Office, Gurazala. But P.W.2 admitted that there is no mention in Ex.A.1 that it was scribed at Sub Registrar Office,

Gurazala. So also, the starting time and completing time of Ex.A.1.

There were 10 to 15 persons present at the time of scribing, but none of them was asked to sign the Will, said by P.W.2.

13.In this connection, the learned appellant’s counsel relied upon the following judgments regarding the proof of Ex.A.1/Will.

(i).In Garlapati Dhanalakshmi @ Andallu Vs. Pinnaka

Hanumantha Rao (Died per L.R) and two Others (2007(2) ALD

8

435) of Hon’ble High Court of A.P that The execution of the Will may be surrounded by suspicious circumstances like,(a) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (b) The condition of the testator's mind may be very feeble and debilitated, (c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons, (d) The dispositions may not appear to be the result of the testator's free Will and mind, (e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him, (f) The testator used to sign blank papers, (g) The Will did not see the light of the day for long,

(h) Incorrect recitals of essential facts, (i) The unregistered Will challenged as forged comes from the custody of major beneficiary".

(ii).In Daulat Ram and Others Vs. Sodha and Others (AIR 2005 SC 233) of Hon’ble Apex Court, to the effect that "in order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there 9 are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so".

(iii). InPentakota Satyanarayana and Others Vs.,

Pentakota Seetharatnam and others (AIR 2005 SC 4362) of

Hon’ble Supreme Court that "when there is no evidence to show

exercise of any fraud or undue influence at the time of execution of

Will and when there is no evidence to show that testator not in sound state of mind, evidence adduced by the appellants/propounders is sufficient to satisfy conscience of Court the Will was duly executed by the testator".

(iv).In Meenakshiammal (Dead) Through Lrs and Ors. Vs.

Chandrasekharan and Another (AIR 2005 SC 52) of Hon’ble

Supreme Court that "when the Will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough".

(v).In Sridevi and Others V. Jayaraja Shetty and others (AIR 2005 SC 780) of Hon’ble Supreme Court that "the propounder of the Will has to show that the will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his 10 signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder, is discharged".

14.P.W.3 stated that he scribed Ex.A.1 and in his presence attestors attested the document. He stated that he scribed Ex.A.1 at

Sub-Registrar Office, Gurazala between 1.30 P.M., and 2.00 P.M., on white papers and thumb impression was affixed by Annamma with

Kazal (Kaatuka) on Ex.A.1. Thus, P.W.3 also did not agree with P.W.1 who deposed that Annamma affixed her thumb impression with the ink pad available at the scribe. Had she really affixed her thumb impression with ink pad available at the scribe, the scribe (P.W.3) would have spoken the same and he would not have deposed that

Annamma affixed her thumb impression with Kazal. Thus, there are material inconsistencies and incongruities, due to which the execution of Ex.A.1/Will by Annamma does not inspire the confidence of the Court. Either the testator or the attestors did not inform the scribe as to why they came to Gurazala Sub Registrar

Office, though there is a Sub Registrar Office at Piduguralla, said by

P.W.3. It is seen from P.W.2 that Annamma brought a slip and by seeing the same, the details of the properties are described by

Annamma. On the contrary, P.W.3 stated that Annamma merely mentioned before him that she acquired the properties mentioned in Ex.A.1 from her father and no document of title or other 11 document was given by Annamma to P.W.3 to scribe Ex.A.1. It is seen from P.W.3 that for the registration of the Will, it will cost around Rs.100/-. But, P.W.3 being the scribe, did not advise

Annamma to register the Ex.A.1/Will. Piduguralla is situated at a distance of 15 K.Ms.,, whereas Gurazala is situated at a distance of 35 K.Ms from Guttikonda. Going to Gurazala which is far away from Guttikonda than going to Piduguralla, which is nearer to

Guttikonda is another suspicious circumstance. Although, an alleged attestor is examined for the proof of Ex.A.1/Will under Sec.63 of the

Indian Succession Act, 1925, due to the suspicious circumstances surrounding the Will, it cannot be said that Ex.A.1/Will is a genuine document.

15.It is the evidence of D.W.1 that Annamma has not executed any Will, much less Ex.A.1/Will, during her lifetime and it is a forged document. The burden does not shift to the defendants, but the burden squarely lies upon the plaintiff to prove Ex.A.1/Will.

It is deposed by D.W.3 that plaintiff and her husband are not having any relationship with Annamma.

16.Due to the discrepancies mentioned above, it is clear that Ex.A.1/Will is a suspicious document and such suspicions are not dispelled by the plaintiff. Therefore, it shall be concluded that

Ex.A.1/Will is a forged document, on the basis of which the plaintiff cannot claim any possession. So also Permanent Injunction, as prayed.

12

17.P.W.1 does have not any ration card available to show that herself and her husband and Anamma lived together in one house, although P.W.1 claimed that they lived together for about 15 years. It is the defendants case that Dasu married Lakshmi and both of them died long ago. D.3 and Veeramma are born to Lakshmi and

Dasu. After the death of Annamma, D.3 and Veeramma enjoying the suit schedule properties with absolute rights. According to P.W.1, there is no cordial relationship between Anamma and Dasu. As pr

P.W.2, Dasu did not marry Lakshmi and she is his kept mistress. It is true that D.W.1 did not file any document to show that herself and other defendants are in possession and enjoyment of the plaint schedule properties. As already stated, burden does not shift to the defendants and the plaintiff cannot depend upon the weaknesses of the defendants. It is for the plaintiff to prove her own case, because she has to fall or stand on her own legs.

18.It is the evidence of D.W.2 that after the death of

Annamma, as the legal representatives of Dasu and Annamma, they succeeded to the properties. They filed O.S.No.114/2010 and thereafter Ex.A.1/Will deed was forged and fabricated as a counter blast by the plaintiff. According to D.W.2, her mother Lakshmi and

Dasu are married in a Church at Guntur. It is true that Dasu first married Jonnalagadda Annamma, deposed by D.W.2. D.W.2 denied that Lakshmi was first married to one Namburi Venkata Rao and through them, D.W.1, D.W.2 and one Srinivasa Rao were born.

13 According to D.W.2, there is no document to show that herself and

D.W.1 and Lakshmi lived together along with Annamma and all of them together enjoyed the properties of Annamma. Although D.W.2 admitted that she has not filed any document to show that the plaint schedule and other properties are in their possession and enjoyment, the plaintiff cannot depend upon the weaknesses of the defendants. Under Sec.101 of Evidence Act, the plaintiff who comes to Court must prove the suit facts.

19.Ex.A.2/House tax certificate issued by Panchayat

Secretary, Guttikonda Village, is in the name of Annamma. Ex.A.3 is

Adangal in the name of Annamma, Ex.A.4 is Aadhar card of

Annamma. Thus, basing on Exs.A.2 to A.4 also it cannot be said that the plaintiff is in possession and enjoyment of the suit schedule property. Ex.B.1 is Voter ID card of the Lakshmi. It is the case of the plaintiff that the defendants bore grudge against the plaintiff due to the Will and they are causing obstruction to grab the plaint schedule property without any legal right. But as Ex.A.1/Will itself is not proved, the alleged interference also is far from the truth.

20.Due to the above mentioned discussion, it is clear that the appellant/plaintiff is not entitled for Permanent Injunction. The trial court came to the right conclusion and there are no grounds to set aside the impugned judgment. Therefore, the appeal grounds fail. This point is held against the appellant/plaintiff.

14

21.In the result, the appeal is dismissed. No costs. The trial

Court’s decree and Judgment are confirmed.

Dictated to the Stenographer, transcribed by him,

corrected and pronounced by me in open Court, this the 7th day of April, 2021.

Sd/- K.Sreenivasa Rao,

XIII Addl. District Judge, Narasaraopet. FAC X Addl., District Judge, Gurazala.

Appendix of Evidence Witnesses Examined “No oral or documentary evidence is adduced on either side.”

Ild/- K.S.Rao,

FAC ADJ., GZL.,

Copy to: The Junior Civil Judge’s Court, Piduguralla.