IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::
VIJAYAWADA
PRESENT: SRI M.P.SANNIDHI RAO,
Principal Senior Civil Judge.
Friday, this the 22nd day of September, 2017
O.S.No.1446/2012
Between:
1. Bugga Venkata Lakshmi (died)
2. Thamma Sri Vani, W/o Subrahmanya Prasad, Hindu, Housewife, aged about 36 years, resident of D.No.5500A/26, Anjaneya Colony, Mangalagiri, Guntur District.
3. Bramandam Sri Ramani, W/o Hari Krishna, Hindu, Housewife, aged about 34 years, Malkajgiri, Hyderabad, Ranga Reddy District. (Plaintiffs 2 and 3 are added as per orders in
I.A.No.394/2014 dt.24.08.2014)...Plaintiffs.
And
Bugga Radha Krishna Murthy, S/o Lakshmi Kanthaiah Sastry, Hindu, aged about 76 years, Rtd.Employee, Resident of D.No.232718, TF2, Rana Pratap Street, Satyanarayanapuram,
Vijayawada 520 011, Vijayawada JCJC. ...Defendant
This suit is coming before me for final hearing on 13.09.2017 in the presence of Sri P.L.Prabhakar, Advocate for Plaintiff and of Sri T.V.L.Narasimha Rao, Advocate for defendant and upon hearing on both sides and the matter is having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1.This suit is filed by plaintiff for preliminary decree of partition of plaint 'A' schedule property into two equal shares and allot one such share to the plaintiff and deliver separate possession to plaintiff by metes and bounds being in joint possession; and partition of 'B' schedule 2 property into two equal shares and allot one such share to the plaintiff and pass necessary orders to pay the amount to the plaintiff's share to the Garnishee being in joint names and also pass a final decree in terms of preliminary decree subsequently by appointing a commissioner to divide the plaint 'A' schedule property by metes and bounds and delivery of possession and subsequent interest at 11% p.a. on Rs.5,27,500/ from the date of suit till the date of realization and for costs of the suit.
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2.The brief averments of the plaint are as follows:
2.1.The plaintiff submits that the plaintiff and defendant are the wife and husband and both are worked as a Teachers in the
Municipal Corporation Schools and both of them are not having any ancestral properties in their names and schedule properties are accrued by both the plaintiff and defendant with their salaries and 'A' schedule property is an apartment in Door No.232718 at Satyanarayanapuram,
Vijayawada and 'B' schedule property is the fixed deposits in Vijayawada
Municipal Corporation Employees Cooperative Credit Society at
Vijayawada.
2.2.The plaintiff further submits that before the marriage of defendant, he was married one lady by name Ramalakshmi, in their wedlock, she blessed two children by name Trinadha Srinivasa
Chakravarthi and Sridevi and after the death of his 1st wife, the defendant married this plaintiff in the year 1976 and since then the plaintiff and defendant are living happily and in their wedlock, the plaintiff blessed with two children by name Srivani and Sriramani and both the plaintiff and defendant and their children including defendant's first wife children are living jointly.
2.3.The plaintiff further submits that both the plaintiff and defendant are worked as Teachers and both earnings are jointly spent to their family and some amounts are invested in the chit funds for their future and both are performed the marriage of eldest daughter by name
Sridevi in the year 1995 by spending an amount of Rs.1,50,000/ and in the year 1997, both performed the marriage of their second daughter by 4 name Srivani and spent an amount of Rs.2,00,000/ and in the year 1999, both performed their 3rd daughter by name Sriramani by spending an amount of Rs.2,50,000/ and in the year 2003, both performed their only son Trinadha Srinivasa Chakravarthi's marriage by spending an amount of Rs.3,50,000/ and all the amounts are accrued both plaintiff and defendant's salaries and investments.
2.4.The plaintiff further submits that from the income of the both plaintiff and defendant, they purchased 'A' schedule property in the year 1998 with valid sale consideration of Rs.4,00,000/ and on request of the plaintiff, the defendant registered the 'A' schedule property in his favour and she is an orthodoxy Hindu lady and respect over the defendant and accordingly, both are paid the amount of Rs.4,00,000/ from their investments and got registered in favour of defendant vide document No.3854/1998 and since then both of them and their only son is living in the plaint 'A' schedule property.
2.5.The plaintiff further submits that the defendant retired from his services in 1995 and plaintiff was retired from her service in 2000 and the retirement benefits of the defendant was spent to the marriage of the children and the retirement benefits of Rs.7,50,000/ of the plaintiff and savings of both are invested for purchase of the plaint 'A' schedule property and balance amount of Rs.10,00,000/ was invested jointly in their names in the Vijayawada Municipal Corporation
Employees Cooperative Credit Society at Vijayawada and the interest on the deposits and pension of the both are spending their family and medical expenses and all the daughters are living separately and on 5 request of the both plaintiff and defendant, the son is living with his parents as the parents are old age and since the date of marriage, the plaintiff never looked the defendant's first wife children separately and she grown all the children as her own children and given equal opportunity to all the children and the son of defendant by name
Trinadha Srinivasa Chakravarthi taking advantage of the old age and his necessity, he requested his father to register the plaint 'A' schedule property in his favour, but in earlier, the defendant refused to register the plaint 'A' schedule property in the name of his son, but recently the said
Trinadha Srinivasa Chakravarthi provoked his father that the other female children are also demanding for partition of plaint 'A' schedule property in their name, for which, he threatened his parents to register the plaint 'A' schedule property in his favour and with fear the defendant mend his mind to register the plaint 'A' schedule property in favour of his son Trinadha Srinivasa Chakravarthi and that the plaintiff objects the transfer of the property in favour of son Trinadha Srinivasa Chakravarthi and demanded not to transfer any property in favour of their children till the lives of plaintiff and defendant and that the said Trinadha Srinivasa
Chakravarthi regularly harassing both plaintiff and defendant and in one occasion the defendant unable to bare the torture of his son, he quarreled with plaintiff and due to quarrels with the defendant and her old age, she fell down and joined in the Purna Heart Institute, Vijayawada for treatment and taken 15 days treatment and due to her old age she suffering with heart ailment problem and the 'A' schedule property is situated on 2nd floor, she unable to stay in her resident and hence, she is presently staying with her daughters and during the stay in the hospital, 6 the defendant or his son never visited the hospital and all her earnings are controlled by the defendant and for payment of hospital expenses, she borrowed the amounts from the outside and paid the medical bills. In the circumstances, she approached to Vijayawada Municipal Corporation
Employees Cooperative Credit Society for collecting interest from the plaint 'B' schedule property, but the defendant withdrawing interest regularly from their joint account and hence, the plaintiff issued a letter to Vijayawada Municipal Corporation Employees Cooperative Credit
Society for stop payment and hence, since 6 months they stopped to pay interest to the defendant and thereafter, the plaintiff made several attempts for the rejoining with the defendant and for leading her old age with defendant, but the defendant paid a deaf ear and plaintiff sent mediation through mediators, but the mediators yield no positive results and the plaintiff is subjected to severe hardship in meeting her expenses and for food, shelter and medical expenses and now the daughters of the plaintiff and relatives of the plaintiff are lookafter her welfare and the daughters of plaintiff have been taking care of the plaintiff and providing food, shelter, cloth and the medicine and except the pension, the petitioner has no other source of protection for her livelihood and plaintiff many times requested the defendant to pay her share in the plaint 'B' schedule property for her medical and livelihood, but the defendant bluntly refused to partition the properties. Even the plaintiff and defendant purchased the plaint 'A' schedule property with both incomes and jointly enjoying the said property and plaint 'B' schedule property is in joint names and enjoying the interest jointly and inspite of the requests made by the plaintiff, the defendant has not come forward to partition the 7 schedule properties and the mediation efforts are futile and further, she came to know that the defendant is making hercules efforts to alienate total plaint 'A' schedule property without any manner of absolute rights over the schedule property and hence, the plaintiff is constrained to file suit for partition of plaint 'A' schedule properties into two equal shares by metes and bounds according to good and bad qualities and allot one such share to the plaintiff and also partition of plaint 'B' schedule property into two shares and allot her 50% share along with interest. Hence the suit.
3.The defendant filed his written statement denying the averments of the plaint except admitting their relationship and their employment and further submitted that the A schedule property was purchased by him only and the fixed deposits of 8 lakhs is his hard earnings only and Rs.50,000/ belongs to his brother and 1 ½ lakhs and its interest deposited on 03.03.2011 in the name of plaintiff by him and deposits contains both the names only and it will be useful for household expenses and the medical expenses, whenever necessary interest will be withdrawn.
3.1.The defendant further submitted that as per the understanding between him and plaintiff, the salary of plaintiff used to spent for the purpose of gold, silver articles and pattu cheeralu for herself and her children only and it is an understanding and also a condition between them prior to the marriage and he never asked the salary of plaintiff and he deposited in Uma Chit Funds Company and said Chit fund company closed and he sustained loss and still one and half lakh rupees have to pay by the chit fund company and in fact, the plaintiff 8 deposited in Uma Chit Funds Company and Sarada Mahila Cooperative
Bank in her name along with children it includes his amount and the entire amount was withdrawn by the plaintiff left to her 2nd daughter at
Bangalore and resided there at about 3 years and the same was repeated for fourth time and after the marriage of his son, the plaintiff resided together for sometime and created galata with daughterinlaw and left the house in the year 2004 itself.
3.2.The defendant further submits that all the marriages of his children were performed by him only by spending huge amounts and he discharged the debts incurred during the marriages of their daughters and plaintiff never spent any amounts relating to her retirement benefits and he never treated the children belongs to plaintiff separately and plaintiff's retirement benefits utilized of her own accord.
3.3.The defendant further submitted that he and plaintiff led marital life for 36 years and plaintiff left him and went to her daughter's house along with articles, cash, gold and silver other papers nearly five times and about five years and it indicates the plaintiff never treated all the children equally and his only son looking after his welfare and his son never demanded to settle the property in his name and the daughters are also never demanded to division of property.
3.4.The defendant further submits that he is suffering a lot due to the action and causes shown by the plaintiff and the plaint A schedule property is his self acquired property only and he is leading his life on his own accord without any assistance and his son and his third daughter is responsible about the plaintiff's high handed acts and 9 plaintiff sustained high BP and created a scene and saying heart pain and he immediately joined her in Purna heart Institute and hospital authorities stated to observe 48 hours and he used to visit the hospital for every day and after one week she was discharged from hospital and went to her daughter's house and later on went to Mangalagiri and discussed the same with eldest daughter and he requested the plaintiff to join and reside together due to old age and in fact, no mediator came and requested him at any time and he has no objection if the plaintiff comes to him and he is ready to take all proper care for her health and the entire plaint 'A' schedule property is the self acquired property and he has no idea to alienate the property and he is aged about 76 years and he is unable to live lonely without any assistance and he is unable to reside separately and if the plaintiff resides along with him, he has no objection and further, the fixed deposits will be matured to December, 2012 and he will sustain loss in the interest before January, 2013 and he is depending upon interest only on the deposits.
3.5.The defendant further submits that the plaintiff suppressed the real facts and filed the suit with false averments and the suit for partition is not maintainable and the plaintiff has to file a suit for declaration only and the cause of action is also not true and correct and hence, prays to dismiss the suit with costs.
4.Perused the material on record and after hearing the counsels of both sides, the following issues are framed.
1. Whether the plaint 'A' schedule house property is the self acquired property of the defendant?
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2. Whether the 'B' schedule property is the exclusive property of the defendant as pleaded?
3. Whether the plaintiff is entitled to half share each in plaint 'A' and 'B' schedule properties?
4. To what relief?
5.During pendency of the suit, after framing of issues, the plaintiff died on 08.12.2013 and the daughters of plaintiff were added as
Plaintiffs 2 and 3 as per orders in I.A.394/2014 dt.26.08.2014 and neat copy of the plaint was filed by contending that they are legal representatives of 1st plaintiff and during life time of 1st plaintiff she executed a Will, as such they are entitled for the share of 1st plaintiff as they are the legal heirs of 1st plaintiff.
6.After filing neat copy of plaint, the defendant filed additional written statement by contending that the plaintiff clearly admits that they have got one son Trinadha Srinivasa Chakravarthi and daughter Sridevi and they are not added as defendants in the suit and they are also entitled in the share of plaintiff and therefore, they are necessary and proper parties in the suit and the suit is liable to be dismissed on the sole ground and moreover, the plaintiff is not entitled to claim half share in the B schedule property and present, the plaintiffs 2 and 3 have no right to continue in the suit and 2nd plaintiff relied on the Will Dt.24.01.2013 is a forged and fabricated one and defendant reliably believes that the said forged Will brought into existence by the husband of 2nd plaintiff with the assistance of scribe and attestors and he is the sole responsible person in filing the suit and also fabricating the Will with an intention to knock of the entire plaint 'A' and 'B' schedule properties and if the plaintiffs 2 and 3 have got any right in the plaint schedule properties, 11 they have to file separate suit to claim their right and hence, prays to dismiss the suit.
7.After perusing the pleadings of neat copy of plaint and
additional written statement and after hearing the counsels of both
sides, the following additional issues are framed.
1. Whether the plaint 'A' schedule property is the self acquired property of defendant or not?
2. Whether the son and daughter of the defendant namely Trinadha Srinivasa Chakravarthi and Sridevi are necessary parties to the suit or not?
3. Whether the Will dt.24.01.2013 is the forged and fabricated one or not?
4. To what relief?
8.Heard both sides. Perused the plaint, written statement,
additional written statement, other evidence, written arguments of both
sides and material on record.
9.In support of plaintiffs' case, the 2nd plaintiff was examined as PW.1 and got marked Exs.A1 to A4. On behalf of defendant, the defendant himself examined as DW.1 and got marked Exs.B1 to B3 and also examined one third party as DW.2 in support of his case.
10.ISSUE No.1 & Additional Issue No.1 : ''Whether the plaint 'A' schedule house property is the self acquired property of the defendant?'' and ''Whether the plaint 'A' schedule property is the self acquired property of defendant or not?''
As the both issues are one and the same they are dealt with simultaneously for convenience of the court.
12 10.1. It is the case of the plaintiff that the plaintiff and defendant are the wife and husband and both are worked as a Teachers in the Municipal Corporation Schools and both of them are not having any ancestral properties in their names and schedule properties are accrued by them with their salaries and before the marriage of defendant, he was married one lady by name Ramalakshmi, in their wedlock, she blessed two children by name Trinadha Srinivasa Chakravarthi and
Sridevi and after the death of his 1st wife, the defendant married this plaintiff and in their wedlock, the plaintiff blessed two children by name
Srivani and Sriramani and both the plaintiff and defendant and their children including defendant's first children are living jointly and they performed the marriages of their children with their hard earnings and both retired from their services and subsequently, at their request, the son is living with his parents as they are old age and and taking the advantage of the old age and his necessity, he insisted his father to register the plaint 'A' schedule property in his favour, but in earlier, the defendant refused to register the plaint 'A' schedule property, for which, he threatened his parents to register the plaint 'A' schedule property in his favour and with fear the defendant mend his mind to register the plaint 'A' schedule property in favour of his son Trinadha Srinivasa
Chakravarthi and that the plaintiff objects the transfer of the property in favour of son and demanded not to transfer any property in favour of their children till they lives, but their son regularly harassing them and he quarreled with plaintiff and due to quarrels with the defendant and her old age, she fell down and joined in the Purna Heart Institute, Vijayawada for treatment and 'A' schedule property is situated on 2nd floor, she 13 unable to stay in her resident and hence, she is presently staying with her daughters and during the stay in the hospital, the defendant or his son never visited the hospital and all her earnings are controlled by the defendant and defendant neglected her and that the petitioner has no other source of protection for her livelihood and many times she requested the defendant to pay her share in the plaint 'B' schedule property for her medical and livelihood, but the defendant bluntly refused to partition the properties and hence, the plaintiff filed this suit for partition of plaint 'A' & 'B' schedule properties. During pendency of suit, the 1st plaintiff died and her legal representatives were added as plaintiffs 2 and 3 by contending that they are entitled for the share of 1st plaintiff in the plaint 'A' & 'B' schedule property.
10.2. On the other hand, it is the case of defendant that the plaint 'A' & 'B' schedule properties are his self acquired properties and plaintiff spent her earnings only to maintain herself and her children and he never asked her salary and he performed marriages of all children with his hard earnings and plaintiff left the house and living with her daughter by creating galata with son and daughterinlaw and he never neglected the plaintiff and he is ready to take all proper care for her health and he has no objection if the plaintiff comes to him and he has no idea to alienate the plaint schedule property and also contending that the Will allegedly executed by 1st Plaintiff has no value and it is a fabricated Will and the plaintiffs have no right in the plaint schedule property, as such they are not entitled for the suit claim.
14 10.3. To prove the case of plaintiffs, the 2nd plaintiff was examined as PW.1 and she reiterated the contents of the plaint and neat copy of plaint in her chief examination and further deposed that her mother died on 08.12.2013 and before her death, her mother executed a registered Will No.27 of BK 111/2013 dt.24.01.2013 and as per recitals of the Will, herself and her sister added as plaintiffs in the present suit.
10.4. The Defendant himself examined as DW.1 and he reiterated the contents of his written statement as his chiefexamination.
In support of his case, he also examined DW.2 and he deposed in his chiefexamination that he was present at the time of marriage of 1st plaintiff and defendant and the condition arrived between them and he was also present when disputes arose in between PW.1 and her husband and at the request of 1st plaintiff, he mediated and pacified the disputes between them and at his request they are residing amicably. He further deposed that the defendant purchased a house in the name of 1st plaintiff at Mangalagiri and the said house was disposed of by the husband of
PW.1. He further deposed that the defendant arranged amount for the purpose of construction of the house at Mangalagiri by PW.1. He further deposed that when PW.1 died the information was not informed to the defendant immediately and the same was learnt to know through relatives by DW.1 and DW.1 performed the further traditional formalities of the family. He further deposed that he personally know the husband of PW.1 used the ATM card of the deceased 1st plaintiff after her death withdraw the amount by using ATM card of the deceased and the same was informed by the bank Manager to this defendant and he came to know that the deceased 1st plaintiff executed a Will in favour of plaintiffs 2 and 15 3 is not correct and in fact, the deceased 1st plaintiff have no necessity to execute a Will in favour of plaintiffs 2 and 3 and he learnt that the said
Will was fabricated and created by husband of PW.1 with their men and he learnt that deceased 1st plaintiff sustained heart pain, the defendant got admitted her (1st plaintiff) in Poorna Cardiac Centre, Vijayawada and 1st defendant treated for one week by the authorities and 1st plaintiff of her own accord without informing to the defendant left the hospital and went to PW.1's house to Mangalagiri and in fact, the marriage between 1st plaintiff and the defendant took place with a specific understanding that 1st plaintiff has to act mother of the children of the defendant and the salary of the 1st plaintiff was not utilized for the family under any circumstances and these two conditions were agreed and the marriage was performed and the plaintiffs have no right to demand for partition because the schedule property was purchased by the defendant with his hard earnings and the amounts lying in the Municipal Employees
Co.operative society Bank are the mounts of the defendant only, but the request of Bank authorities, it iwas mentioned as either or surviver and hence, the 1st plaintiff's name was also included and she used to spend her salary for sarees and gold ornaments for the benefits of her children i.e. plaintiffs 2 and 3 as per the understanding between them at the time of marriage.
10.5. Though the DW.1 deposed in his chiefexamination about the case of the defendant, it is hearsay evidence and not direct evidence.
16 10.6. As per pleadings of plaintiff and as per the evidence of
PW.1, it is clear that the plaint 'A' schedule property, which is evident from Exs.A1 & B1, was purchased by 1st plaintiff and defendant with their hard earnings. To prove the said averment, the plaintiff cross examined the Dws.1 and 2 at length. During crossexamination of DW.1, he deposed that himself or 1st plaintiff did not acquire any properties from their ancestors. Though the DW.1 deposed that the marriage of their children were performed by him with his hard earnings only, but he failed to produce any documentary evidence to prove the same. he also deposed during crossexamination that the 1st plaintiff never used her earnings for family expenses and there is an understanding between the 1st plaintiff and defendant prior to their marriage that the salary of 1st plaintiff will not be used for their family expenses, but he failed to produce any documentary evidence in this regard. Though the DW.2 deposed in his chiefexamination that he was present at the time of marriage of 1st plaintiff and defendant, but he stated in his cross examination that he did not attend the marriage of 1st plaintiff and defendant. DW.2 in his crossexamination deposed that defendant used to inform to him all his family affairs.
10.7. On perusal of evidence of PW.1 and Dws.1 and 2 with regard to purchase of plaint 'A' schedule property, it is clear that the plaint 'A' schedule property was purchased by the 1st plaintiff and defendant jointly with their earnings as both of them are employees and they have no ancestral properties. Accordingly, these issues are answered in favour of plaintiffs and against the defendant.
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11. ISSUE No.2 : ''Whether the 'B' schedule property is the exclusive property of the defendant as pleaded?''
Coming to the issue regarding 'B' schedule property, it is the fixed deposits in Vijayawada Municipal Corporation Employees Co operative Credit Society at Vijayawada and as per pleadings of plaintiffs, the defendant retired from his services in 1995 and 1st plaintiff was retired from her service in 2000 and the retirement benefits of the defendant was spent to the marriage of the children and the retirement benefits of Rs.7,50,000/ of the 1st plaintiff and savings of both are invested for purchase of the plaint 'A' schedule property and balance amount of Rs.10,00,000/ was invested jointly in their names in the
Vijayawada Municipal Corporation Employees Cooperative Credit Society at Vijayawada and the interest on the deposits and pension of the both are spending their family and medical expenses, but when she (1st plaintiff) was admitted in hospital and when defendant neglected her she indebted to others for paying medical bills and in the circumstances, she approached to Vijayawada Municipal Corporation Employees Cooperative
Credit Society for collecting interest from the plaint 'B' schedule property, but the defendant withdrawing interest regularly from their joint account and hence, the plaintiff issued a letter to Vijayawada Municipal
Corporation Employees Cooperative Credit Society for stop payment and hence, since 6 months they stopped to pay interest to the defendant and the 1st plaintiff has no other source of protection for her livelihood and 18 she many times requested the defendant to pay her share in the plaint 'B' schedule property for her medical and livelihood, but the defendant bluntly refused to give her share in the 'B' schedule properties. During crossexamination of DW.1, he admitted that the 'B' schedule property i.e.
the fixed deposit is the amount deposited jointly in the name of himself and deceased 1st plaintiff. He also admitted that he is receiving the pension of deceased 1st plaintiff. On perusal of Ex.A2 certificate issued by the Vijayawada Municipal Corporation Employees Cooperative Credit
Society Limited, it is clear that the 1st plaintiff and defendant jointly deposited their earnings of Rs.10,00,000/ and it is joint account. Hence, the 'B' schedule property is not the exclusive property of defendant and as it is joint account the 1st plaintiff and defendant are having equal shares in the 'B' schedule property, accordingly, the 1st plaintiff is entitled for her half share in the 'B' schedule property. Accordingly, the issue is answered in favour of plaintiffs and against the defendant.
12. Additional issue No.2 : ''Whether the son and daughter of the defendant namely Trinadha Srinivasa Chakravarthi and Sridevi are necessary parties to the suit or not?''
As decided the issue No.1, additional issue No.1 and issue
No.2 that the plaint 'A' & 'B' schedule properties are self acquired properties of 1st plaintiff and defendant and they are not joint family properties, there is no necessity to add the son and daughter of defendant namely Trinadha Srinivasa Chakravarthi and Sridevi, who born through first wife of defendant as the 1st plaintiff filed this suit against her husband i.e. defendant only since the plaint schedule property is their 19 (1st plaintiff and defendant) self acquired property. Accordingly, this issue is answered in favour of plaintiffs and against the defendant.
13. Additional Issue No.3 : ''Whether the Will dt.24.01.2013 is the forged and fabricated one or not?' 13.1. The plaintiffs 2 and 3 contended that their mother i.e.
1st plaintiff died on 08.12.2013 and before her death, she executed and registered a Will on 24.01.2013 and as per recitals of the Will, they added as plaintiffs 2 & 3 in the present suit and that they are entitled to partition of plaint A' and 'B' schedule properties into two equal shares and allot one such share to the plaintiffs 2 and 3. But the defendant contended that the alleged Will Ex.A3 is a forged and fabricated one and that it is the bounden duty of plaintiffs to examine at least one of the witnesses to prove the execution of Will even though it is a registered Will.
During crossexamination of PW.1, she deposed that she came to know about the Will executed by her mother through one Saroja, who is her mother's friend, who is residing at Hyderabad. She also deposed that she don't know the attestors namely Basavaiah and Koteswara Rao of the
Will.
13.2.The defendant also relied on the decisions reported in
i)2014 (5) ALT 756 Muppalla Veeraiah v. Chaganti Jaya Lakshmi ''Proof of Will Will has to be proved by examining at least one of the attesting witnesses as mandated by Section 68 of Evidence Act – If attestors are not alive, it has to be proved as per procedure prescribed under Section 69 of the Act''.
20 ii) 2014 (5) ALT 232 (D.B.) Anantharaju Venkata Seshamma v. Rajupalem Seshavataram (died) and another.
''Proof of Will – Will is a compulsorily attestable document – it must be attested by two witnesses and proved by examining at lease one of the attestors – No single person was examined – At lease one of the two attestors of the Will be examined to prove the same as mandated by Section 68 of the Act''.
13.3. On perusal of above citations and evidence of PW.1, it is clear that the plaintiffs failed to prove the contents of Will as they did not examine at least one of the attestors and as per Section 68 of
Evidence Act, the 'Will' has to be proved by examining at least one of the attesting witnesses. Hence, the above citations relied by the defendant are aptly applicable to the present case on hand and that the Will is not taken into consideration. Accordingly, the point is answered against the plaintiffs and in favour of defendant.
14.ISSUE No.3: ''Whether the plaintiff is entitled to half share each in plaint 'A' and 'B' schedule properties?''
Though the additional issue No.3 regarding the proving of
Will is decided against the plaintiffs, the Plaintiffs 2 and 3 are entitled for half share of their mother i.e. 1st plaintiff in the plaint 'A' & 'B' schedule properties as they are the legal representatives of 1st plaintiff.
In view of the findings on issues 1 & 2 and additional issues 1 & 3, the 1st plaintiff is entitled for partition of plaint 'A' & 'B' schedule properties and as the 1st plaintiff died during pendency of suit, her children, who are added as Plaintiffs 2 and 3, are entitled for share of 21 their mother i.e. 1st plaintiff. Accordingly, this issue is answered in favour of plaintiffs and against the defendant.
15. ISSUE No.4 & Additional issue No.4 :
In result, this suit is preliminarily decreed with costs by partitioning plaint 'A' & 'B' schedule properties into 2 equal shares and allot one such share to the plaintiffs 2 and 3 with metes and bounds by separate possession of plaint 'A' schedule property and also granting subsequent interest at 11% p.a. on Rs.5,27,500/, which is half share of the plaint 'B' schedule property, from the date of suit till the date of realization.
Dictated to the Personal Assistant, transcribed by her,
corrected and pronounced by me in the open Court, on this the 22nd day of September, 2017.
Sd/- M.P.Sannidhi Rao,
PRINCIPAL SENIOR CIVIL JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Plaintiffs: PW.1 : Tammana Sri Vani.
Defendant: DW.1 : Bugga Radha Krishnamurthy. DW.2 : Seelam Bala Krishna Reddy.
DOCUMENTS MARKED FOR
Plaintiffs :
Ex.A1: 05.12.1998Certified copy of the sale deed
Ex.A2: 11.10.2012Certificate issued by the Vijayawada Municipal 22
Corporation Employees Cooperative Credit Society Limited.
Ex.A3: 24.01.2013Certified copy of the Will executed by the 1st plaintiff in favour of plaintiffs 2 and 3.
Ex.A4: 04.01.2014Certified copy of death certificate of 1st plaintiff.
Defendant:
Ex.B1:05.12.1998Certified copy of registered sale deed executed by
Kavuri Vimala Devi and also G.S.R.Constructions in favour of defendant.
Ex.B2:17.01.2015Property tax Demand notice issued by the
Vijayawada Municipal Corporation stands in the name of defendant.
Ex.B3:09.02.2015Property Tax payment receipt stands in the name of defendant.
Sd/M.P.Sannidhi Rao,
PSCJ,
VJA.
// TRUE COPY//
PRINCIPAL SENIOR CIVIL JUDGE,
VIJAYAWADA.
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::
VIJAYAWADA
PRESENT: SRI M.P.SANNIDHI RAO,
Principal Senior Civil Judge.
Friday, this the 22nd day of September, 2017
O.S.No.1446/2012
Between:
1. Bugga Venkata Lakshmi (died)
2. Thamma Sri Vani, W/o Subrahmanya Prasad, Hindu, Housewife, aged about 36 years, resident of D.No.5500A/26, Anjaneya Colony, Mangalagiri, Guntur District.
3. Bramandam Sri Ramani, W/o Hari Krishna, Hindu, Housewife, aged about 34 years, Malkajgiri, Hyderabad, Ranga Reddy District. (Plaintiffs 2 and 3 are added as per orders in
I.A.No.394/2014 dt.24.08.2014)...Plaintiffs.
And
Bugga Radha Krishna Murthy, S/o Lakshmi Kanthaiah Sastry, Hindu, aged about 76 years, Rtd.Employee, Resident of D.No.232718, TF2, Rana Pratap Street, Satyanarayanapuram,
Vijayawada 520 011, Vijayawada JCJC. ...Defendant
1.This suit is filed by plaintiff for preliminary decree of partition of plaint 'A' schedule property into two equal shares and allot one such share to the plaintiff and deliver separate possession to plaintiff by metes and bounds being in joint possession; and partition of 'B' schedule property into two equal shares and allot one such share to the plaintiff and pass necessary orders to pay the amount to the plaintiff's share to the Garnishee being in joint names and also pass a final decree in terms of preliminary decree subsequently by appointing a commissioner to divide the plaint 'A' schedule property by metes and bounds and delivery of possession and subsequent interest at 11% p.a. on Rs.5,27,500/ from the date of suit till the date of realization and for costs of the suit.
2. Plaint presented on11.10.2012Plaint numbered on12.10.2012 24
3.Particulars of suit claim :
Total value of the plaint 'A' schedule property as per the valuation certificate is Rs.6,90,00000
Plaintiffs' half share in the plaint 'A' schedule is valued at Rs.3,45,00000
Total value of the plaint 'B' schedule property isRs.10,00,00000 Interest at 11% p.a. for 6 monthsRs. 55,00000 Rs.10,55,00000
Plaintiffs' half share is Rs.5,27,50000 Total value of plaintiffs share in the plaint schedule properties is Rs.8,72,50000
Value of the suit for the purpose of Court fee and jurisdiction is Rs.8,72,500/ under Section 50(1) of APCF and SV.Act, on which a fixed Court fee of Rs.200/ is paid under S.34(2) of the said act as the plaintiffs are in joint and constructive possession and enjoyment of the plaint schedule properties.
4.Cause of action for the suit arise in the year 1976 when the marriage in between the 1st plaintiff and defendant performed and when the 1st wife of the defendant was died and blessed two children by name Trinadha Srinivasa Chakravarthi and Sridevi and 1st plaintiff blessed two children i.e. plaintiffs 2 and 3 and both the 1st plaintiff and defendant and their children including defendant's 1st wife children are living separately and on different dates when both jointly spent to their family and some amounts are invested in the chit funds and on different dates both performed the marriages of their children and in the year 1998 when both purchased plaint 'A' schedule property for Rs.4,00,000/ with their savings and registered in the name of the defendant vide document No.3854/98 and in the year 1995 when the defendant retired from the service in the year 2000 when the plaintiff retired from the service and received Rs.7,50,000/ towards retirement benefits and when the 1st plaintiff and defendant jointly deposited Rs.10,00,000/ in Vijayawada Municipal Corporation Employees Cooperative Credit Society at Vijayawada and on different dates when the son of the defendant proclaiming and when the 1st plaintiff joined in the hospital and when the plaintiff demanded to partition the plaint 'A' and 'B' schedule properties and when the defendant refused the same and when the plaintiffs and defendant are in constructive joint possession and enjoyment of the plaint schedule properties and at Vijayawada, where the plaint schedule properties are situated, within the jurisdiction of this Court.
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5.This suit is coming before me for final hearing on 13.09.2017 in the presence of Sri P.L.Prabhakar, Advocate for Plaintiff and of Sri T.V.L.Narasimha Rao, Advocate for defendant and upon hearing on both sides and the matter is having stood over for consideration till this day and this Court doth order and decree :
i)that the suit be and the same is hereby preliminary decreed by partitioning plaint 'A' & 'B' schedule properties into 2 equal shares and allot one such share to the plaintiffs 2 and 3 with metes and bounds by separate possession of plaint 'A' schedule property and also granting subsequent interest at 11% p.a. on Rs.5,27,500/, which is half share of the plaint 'B' schedule property, from the date of suit till the date of realization; ii)that the defendant do pay to the plaintiffs a sum of Rs.45,528/ towards costs of the suit and do bear his institutional costs of Rs.2/ as no costs memo filed.
Given under my hand and the seal of this Court this the 22nd day of September, 2017.
PRINCIPAL SENIOR CIVIL JUDGE.
VIJAYAWADA
MEMO OF COSTS FOR
PLAINTIFFS DEFENDANT
1.Stamp on vakalat200
2.Stamp on plaint20000No bill of costs filed as remained exparte.
3.Stamp on process12600
4.Stamp on petitions
5.Advocate fees 45,00000
6.Typing & Writing charges.20000 Total45,52800NIL (Plaint schedule copy annexed to the decree)
PSCJ, VJA.