1OS.NO.169/2013 // Fair copy //
IN THE COURT OF THE I ADDL. CHIEF JUDGE : CITY CIVIL COURT :
AT SECUNDERABAD.
DATED: THIS THE 05th DAY OF AUGUST, 2021.
PRESENT : SMT. M.R.SUNITHA,
I ADDL. CHIEF JUDGE
CITY CIVIL COURT, SECUNDERABAD
OS.No.169 of 2013
Between:
1. Sri Laxminarayana Upadhyaya, S/o.Late Satyanarayana. Aged about : 58 years, Occ:Business.
2. Sri Bhagwan Das Upadhyaya (Died per LR’s)
3. Ram Kishore Upadhyaya, S/o.Late Satyanarayana, aged about: 46 years, Occ: Business.
4. Smt.Prema Latha Upadhayaya, W/o.Late Sri Bhagwan Das Upadhyaya, age: 55 years, Occ: Housewife.
5. Smt.Seema Vyas D/o.Late Sri Bhagwan Das Upadhyaya, W/o.Sri Ram Karan Vyas, age:40 years, Occ:Housewife.
6. Sri Pavan Kumar Upadhyaya. S/o.Late Sri Bhagwan Das Upadhyaya, age:37 years, Occ:Service.
7. Sri Mukesh Upadhyaya, S/o.Late Sri Bhagwan Das Upadhyaya, age:36 years, Occ:Service. … Plaintiffs (Petitioners No.4 to 7 are added as per orders in IA.No.1226/2021, dt.21.01.2021).
A N D
1. Nand Kishore Upadhyaya, S/o.Late Sri Satyanarayana, age:54 years, Occ:Business.
2. Vinod Kumar Upadhyaya, S/o.Late Sri Satyanarayana, age:41 years Occ:Business.
3. Tezal Sarvi, W/o. Kishore Sarvi, aged about:50 years, Occ: Business.
4. Misrilal Vyas, S/o.Omkarmal Vyas aged about: 55 years, Occ:Business.
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5. Anjali Tent House, Rep., by Santhosh, S/o.Hanumanth Rao,
6. Jaya Rani, W/o.Madhav, aged about:38 years, Occ:Business.
7. Venu Gopal Jagotiya, S/o.Satyanarayana Jakotiya, aged about:35 years, Occ:Business.
8. Santoshi Devi Upadhyaya, W/o.Vinod Kumar Upadhyaya, aged about:41 years, Occ:Household.… Defendants.
(Defendant No.8 is added as per the orders in IA.No.4883/2014 dt.22.07.2015)
This suit having come before me on 30.07.2021 for final hearing in the presence of Sri Venkatesh Deshpande, Advocate for the plaintiffs and of Sri T.Dharma Rao, Advocate for the defendant No.1, Sri. Pramod Kumar Kedia, Advocate for the defendant No.2, Sri Vishal Kedia, Advocate for the defendant No.8, and the defendants Nos.3 to 7 remained exparte, and after perusing the material on record and hearing both sides, and after the matter having stood over for consideration till this day, today, this Court delivered the following :
J U D G M E N T
1.This suit is filed by the plaintiffs No. 1 to 3 for the following reliefs:
(i).For partition and separate possession of the suit schedule “A” property into five equal shares and allotment of one such share equally to the plaintiffs and the defendants No.1 and 2 by working out equities;
(ii).To direct the defendants No.3 to 7 to pay an amount of
Rs.3,02,070/- towards their share of rents from December 2011 onwards;
(iii).To direct the defendant No.2 to pay an amount of Rs.1,68,270/- to the plaintiffs No.1 and 2 towards the expenses incurred for the death ceremonies of their father and mother.
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2.Facts of the case that are germane for adjudication of the case are thus :
(a)The plaintiffs No.1 to 3 and defendants No.1 and 2 are the sons of late Sathyanarayana Upadhyaya and late Smt. Narmada Devi and the defendants No.3 to 7 are the tenants in the ground and first floor of the suit schedule property.
(b)Apart from the plaintiffs No.1 to 3 and defendants No.1 and 2, late
Sathyanarayana Upadhyaya and Smt.Narmada Devi are survived by four daughters since they were married and living happily at their respective matrimonial homes, they are not added as parties to the suit.
(c)The father of the plaintiffs late Sathyanarayana Upadhyaya acquired the suit schedule property bearing No.2398 and 2399 admeasuring 234 sq.yards situated at Rangrez Bazar, Secunderabad by virtue of the registered gift deed dt.17.11.1959 vide doc.No.2243/59 executed by his maternal aunt Smt.Chunni Bai.
(d)After acquiring the suit schedule property, late Sathyanarayana
Upadhyaya dismantled the old structures and constructed ground plus two upper floors and obtained regularization from the Municipal
Authority and thereafter the property was accessed to tax and separate municipal numbers were allotted to all the portions in the ground plus two floors. The two portions in the ground floors were alloted with Nos.
3-3-289 & 3-3-290 and further the four shutters in the ground floors were allotted with separate municipal bearing Nos.3-3-290/1 & 3-3- 290/2, the two portions in the first floor were allotted, municipal Nos.3- 3-291 & 3-3-292 and corresponding two portion in second floor were 4OS.NO.169/2013 allotted municipal Nos.3-3-293 & 3-3-294 which property is referred as suit schedule “A” property.
(e)The plaintiffs and the defendants No.1 and 2 are occupying separate portions in the premises bearing Nos.3-3-289 to 3-3-294 and residing with their respective families and carrying on their independent business and there is no joint family business. The defendant No.3 is the tenant in a portion in the first floor and paying rent of Rs.4,500/-. The defendants No.4 to 7 are the tenants in the ground floor and paying rent @Rs.4,000/-, Rs.5,000/-, Rs.6,000/- &
Rs.6,800/- respectively. The defendant No.6 and 7 paid an amount of
Rs.2,50,000/- each towards deposit and the same is in the custody of defendant No.2.
(f)The parents of the plaintiffs and D1 & D2 expired within a span of one year and they have incurred an amount of Rs.14,62,825/- towards funeral and first year death anniversary expenses. In order to meet the said expenditure the plaintiffs and defendant Nos.1 & 2 resorted to several means like obtaining loan from friends and relatives and utilization of the gift amount from their in laws and so also spent the amount which was yielded from agriculture.
(g)When the plaintiffs demanded the defendant No.2 for his share of liability incurred above, and insisted for accounting the deposit amount of Rs.5,00,000/- and the rental income from 2011 onwards, The defendant No.2 evaded his share of his liability and started quarreling with the plaintiffs and defendant No.1 and threatened them with dire consequences if they insisted for contribution of his share of his liability and accounting of the deposit and rental income.
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(h)After noticing the intransigent attitude of defendant No.1 in refusing to share the liability and account for rental income, the plaintiffs demanded partition of the suit schedule property but the defendants No.1 and 2 denied for partition and as such the plaintiffs have filed the suit for partition and separate possession of the suit schedule property along with a share in the rental income yielded from the suit schedule property through defendants No.3 to 7 from
December 2011 till October 2011 at old rate from November 2012 till
July 2013 at enhanced rate.
3.Defendant No.2 filed his written statement admitting the relationship between both the parties and denying the allegations levelled against him and further stating that the suit is bad for mis- joinder and non-joinder of parties and that the present owner of the part of the suit schedule property was not brought on record, since his father executed a registered Will on 12.03.2007 wherein he created live interest in favour of his wife and thereafter the properties to be devolved on all his five sons as stated by him, in the Will and by virtue of the said Will he acquired the ownership over the ground floor of the suit schedule property and in turn executed a registered gift deed dt.
14.05.2009 vide Doc.No.649/2009 in the name of his wife. The defendants clarified that, he was bequeathed with the entire ground floor portion since he has undertaken the responsibility of his three sisters namely Smt. Gandha Devi, Smt.Sangeetha and Smt.Santosh in performing and fulfilling all the formalities that have to be taken care from his family side after his father.
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(a)The defendants having knowledge about the execution of the Will deed by his father and the contents thereof, filed a false case against him, to grab his property and prays to dismiss the suit.
(b)Having gone through the written statement filed by the defendant
No.1, the plaintiffs impleaded the wife of the defendants No.2 as defendant No.8 in the suit and sought for amendment of the reliefs claimed for to suit the defence taken by defendant No.2. The said petitions were allowed and as such according to the amended plaint, the following reliefs are claimed by the plaintiffs;
(i). For partition and separate possession of the suit schedule property into five equal shares and allotment of one such share equally to the plaintiffs and the defendants No.1 and 2 by working out equities;
(ii).To declare the registered Will deed dt. 12.03.2007 as null and void and not binding on the plaintiffs and consequently declare the gift deed dt.14.05.2009 vide Doc.No.649/2009 as null and void and not binding on the plaintiffs.
(iii)To direct the defendants No.3 to 7 to pay an amount of
Rs.3,02,070/- towards rents to plaintiffs towards their share of rents from December 2011 onwards;
(iv).To direct the defendant No.2 to pay Rs.1,68,270/- to the plaintiffs
No.1 and 2 towards the expenses incurred for the death ceremonies of their father and mother.
4.Since the written statement of defendant No.2 is on record, the defendant No.1 filed his written statement admitting the plaint averments and disputed the execution of the Will stating that his father 7OS.NO.169/2013 was ill health from the year 2005 till his death and he also had eye sight problem and could not read and write properly. Thus defendant
No.1 also sought for partition of the suit schedule property.
5.Defendant No.8 has filed her written statement denying the plaint averments. The written statement by defendant No.8 is nothing but verbatim, replica of the written statement of defendant No.2 who is none other than her husband who has gifted the entire ground floor to her.
6.After hearing the parties, this Court framed the following issues for trial :
(i) Whether the plaintiffs are entitled for a preliminary decree for partition of the suit schedule -A property into five equal shares and allotment of one such share each to the plaintiffs and defendants No.1 & 2 as prayed for ?
(ii) Whether the plaintiffs are entitled for declaration declaring the Registered Will dt.12.03.2007 as null and void and not binding on them and consequently declaring the Gift Deed dt.14.05.2009 vide doc.No.649/2009 as null and void and not binding on them as prayed for ?
(iii) Whether the plaintiffs are entitled for recovery of a sum of Rs.1,68,270/- from the defendant No.2 towards expenses incurred for the death ceremonies of their father and mother as prayed for ?
(iv) To what relief ?
7.To prove their case, the plaintiff No.1 got examined himself as PW- 1 and relied upon the documents exhibited under Exs.A.1 to Ex.A.7 being the certified copy of registered gift settlement deed dt.17.11.1959, original death certificate of late Sri Satyanarayana
Upadhyaya, office copy of legal notice, registered postal receipts, registered postal acknowledgments, returned postal cover of defendant 8OS.NO.169/2013
No.5 and original valuation certificate in respect of suit schedule property.
8.In support of their case, on behalf of the defendants, the defendant No.2 got examined himself as DW-1, Santosh Vyas is examined as DW.2 and one Ratanlal Vyas as DW.3, putting-forth their defence and relied upon Exs.B.1 to Ex.B.3 being the certified copy of the registered Will deed, certified copy of the registered gift deed and transfer of title proceedings.
9.Heard the arguments on behalf of the plaintiffs as well as the defendants. Perused the citations filed along with memo by defendants, reply arguments filed by the plaintiffs.
10.ISSUE NO.3:
Whether the plaintiffs are entitled for recovery of a sum of Rs.1,68,270/- from the defendant No.2 towards expenses incurred for the death ceremonies of their father and mother as prayed for ?
(a)The evidence of PW.1 regarding the funeral expenditure and death anniversaries expenditure, is that they have all together incurred an amount of Rs.14,62,825/- and out of that they have taken a hand loan of Rs.6,25,000/- from friends and relatives and spent an amount of
Rs.1,81,500/- which was given as a gift from their in-laws on the 12th day ceremony to their children. The said amount has to be paid back to the children and further they spent an amount of Rs.84,850/- which was the income yielded from agriculture. Since the expenditure incurred by all the five sons, have to be shared equally and the defendant No.2 has evaded his share of his liability and not account to 9OS.NO.169/2013 the rental amounts he sought for a direction to the defendant No.2 to pay the amount of Rs.1,68,270/- towards his share of his liability.
(b)While coming to the cross examination, PW.1 admitted that he has not filed any documents in proof of expenditure incurred by him towards the final rituals of his parents to a tune of Rs.14,62,825/-. He also admitted that in their community, the custom prevails among them to perform the last rituals for the deceased, both at the place of death as well as at their native place.
(c)Since the native place of the plaintiffs and defendants No.1 & 2 are at Rajasthan, PW.1 admitted that defendant No.2 has incurred all the expenditures of last rituals ceremonies at their native place whereas, they incurred the expenditure to perform the rituals at
Hyderabad. From such admissions of PW.1, it can be easily presumed and concluded that plaintiffs No.1 to 3 and defendant No.1 together incurred the funeral expenditure and death anniversary expenditure.
Whereas the defendant No.2 alone performed all the relevant ceremonies at their native place.
(d)Moreover, it is not out of record, that there is no documentary proof to show the expenditure incurred by the plaintiffs as stated by them. Therefore in the absence of any relevant proof this court cannot conclude that the expenditure incurred by the plaintiffs and defendant
No.1 together is on the high side to that of the expenditure incurred by the defendant No.2 at his native place. Therefore this issue No.3 is answered accordingly holding that the plaintiffs are not entitled for any amount from defendant No.2.
10OS.NO.169/2013
11. ISSUE NO.2:
Whether the plaintiffs are entitled for declaration declaring the registered Will dt. 12.03.2007 as null and void and not binding on them and consequently declaring the gift deed dt.14.05.2009 vide Doc.No.649/2009 as null and void and not binding on them as prayed for ?
(a)The plaintiffs filed the suit for partition of the suit schedule property into five equal shares by metes and bounds whereas the defendant No.2 has taken shelter under the defence of the execution of the Will by his father during his life time bequeathing the entire ground floor to him with a condition to take care of his three sisters all through and perform the necessary ceremonies named as MAYARAYA.
(b)The evidence of PW.1 pertaining to the said issue is that, they have no knowledge about their father executing a Will and that the said
Will is fabricated one and has seen the light only to grab the whole ground floor which yields rental income unlike the other portions.
(c)During the cross examination of PW.1 he deposed that he was residing in the ground floor and admitted that he can identify his father's signature. But however, when the certified copy of the Will dt.12.03.2007 vide doc.No.29/2007 was confronted to the witness, he neither admitted the photograph nor the signature of his father. While admitting that they have to perform the obligation of giving MAYARAYA to their sisters as per their customs and rituals, he deposed that his father has already discharged the said duties and defendant No.2 was collecting the rents and not giving anything to them from 2011 onwards.
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(d)PW.1 admitted that he know one Dilip Kumar Taunk who is Doctor by profession but denied the suggestion that, his parents were under the said doctors treatment.
(e)The defendant No.2 examined himself as DW.1 and reiterated his defence regarding the Will and further stated that his father executed a registered Will during his life time and after his demise on 25.08.2008, he started collecting rents from the tenants and thereafter bequeathed the said property to his wife i.e. defendant No.8 under a registered gift deed and at present she is collecting the rents.
(f)He also deposed that, the defendant No.8 has obtained loan from the Agroha Co-operative Urban Bank Ltd., by mortgaging the portion of her property by depositing her original title deed and the same is still in mortgage with the said bank. The Will deed and the gift deed along with the death certificate of their father were exhibited under Exs.B1 to
B3. The contents of the registered Will deed dt.12.03.2007 shows that
Late Sri Satyanarayana Upadhayaya, during his life time executed the
Will creating life interest to his wife over the entire suit schedule property consisting of ground plus two upper floors and thereafter allotted the entire suit schedule property to his five sons as underneath:
(i).The elder son Sri Laxminarayana Upadhyaya the plaintiff No.1 is allotted with southern portion in second floor bearing door No.3-3-293.
(ii).The second son Sri Nand Kishore Upadhyaya the defendant No.1 is allotted with northern portion in second floor with door No.3-3-294.
(iii).The third son Sri Baghwan Das Upadhyaya, the plaintiff No.2 is allotted with southern portion in first floor bearing door No.3-3-291.
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(iv).The fourth son by name Sri Ram Kishore Upadhyaya, the plaintiff
No.3 is allotted northern portion in the first floor bearing door No.3-3- 292.
(v).The fifth son Sri Vinod Kuman Upadhyaya, the defendant No.2 is allotted with the entire ground floor bearing door No.3-3-289, 290, 290/1 and 290/2.
(g)The executant of the Will clarified that “ he has bequeathed the entire ground floor portion to his younger son Sri Vinod Kumar
Upadhyaya under this Will since he has undertaken the responsibility of his three daughters namely Smt.Gandha Devi, Smt. Sangeetha and
Smt.Santosh in performing and fulfilling all the formalities that have to be taken care after him from his family side.
(h)It was also mentioned in the Will that all his sons were living in different portions of the aforesaid property but later after his demise his sons shall get into their respective portions bequeathed to them as mentioned in the Will by vacating the portions under their occupation presently. Ex.B2 is the gift settlement deed executed by defendant
No.2 Sri Vinod Kumar Upadhyaya on 14.05.2009 in favour of his wife
Smt. Santosh, the entire property in ground floor.
(i)Ex.B3 is the transfer of title dt.12.03.2009 from Sri Satyanarayana
S/o.Gandi Ram to Sri Vinod Kumar Upadayaya. Coming to the cross examination of DW.1, he admitted that the plaintiff No.1 was residing in the ground floor portion 3-3-290/1 since the life time of his father and also having one room in the first floor and one room in the second floor.
He also admitted that the defendant No.1 was residing in one portion of the second floor and he was residing in one portion of the third floor. He also admitted that he was collecting the rents. DW.1 further admitted 13OS.NO.169/2013 that his father demolished the old building and constructed ground plus two floors and they are no new additional constructions made by them thereafter.
(j)He further admitted that the MAYARAYA to his sisters was during his life time of his father. He added that one of his sister's daughter
MAYARAYA was performed after the death of his father. It was suggested to the witness that they have jointly performed MAYARAYA.
Since DW.1 did not file the original Will, he admitted the said fact and stated that it was in the custody of HDB bank and that he does not know about the bank. He confirmed that he cannot file the original Will and cannot summon the bank authority for production of the original
Will. Though the plaintiffs stressed on filing of the original Will, the witness did not admit to file the same. He also admitted that his father was 80 plus in the year 2007 and no medical certified was annexed to
Ex.B1.
(k)DW.1 deposed that he do not know whether his father was taking treatment for eyes with Dr.Mahathur. He admitted that his father was a diabetic patient, but denied his knowledge as to since how many years his father was suffering. While admitting the fact that his mother
Smt.Narmada Devi was given life interest in the Will, he also admitted that Ex.B2 being the gift deed in the name of his wife was executed prior to the death of his mother.
(l)This witness also admitted that he know Dr.Dilip Kumar Thunk but denied his knowledge as to the treatment of the said Doctor to his father. Apart from the evidence of DW.1 he relied upon the evidence of his sister Smt Santosh Vyas to speak about her knowledge regarding 14OS.NO.169/2013 the execution of the Will, and Sri Rathanlal being one of the attestor to the said Will.
(m)The evidence of Smt.Santosh Vyas as DW.2 is that, her father, during his life time proposed to give ground floor portion to Sri Vinod
Kumar Upadhyaya and remaining portions to the other brothers and accordingly executed a registered Will on 12.03.2007, by laying a pious obligation on his brother Sri Vinod Kumar Upadhyaya to take care of the three sisters in performing and fulfilling all the formalities that have to be taken care after him from his family side and that except the defendant No.2, none of the other brothers, were fulfilling the formalities of the three sisters. She also deposed that Sri Vinod Kumar
Upadhyaya started collecting the rents and thereafter bequeathed the said property under a gift deed to his wife i.e. defendant No.8 and she is collecting the rents as per the wish of her mother during her life time. Her further evidence was that her father bequeathed his property in favour of her brothers and they are not claiming any rights in the property.
(n)DW.2 deposed in her cross examination that she was giving evidence regarding the execution of the Will but admitted she did not sign on the Will nor asked to do so and she did not see the Will. She deposed that her father informed her that he had a wish to give ground floor property to defendant No.2 and that she was cordial relationship with all her brothers. It was suggested to this witness that his father could not see since he was blind due to diabetic. DW.2 stated that her father died on 25.08.2008 suffering with ill health only for two days.
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(o)The evidence of DW.3 namely Sri Rathanlal Vyas was on the same lines of DW.2 who is none other than his wife. He added that his father-in-law Late Sri Satyanarayana Upadhayaya executed registered
Will bequeathing the ground floor portion to the defendant No.2 and the remaining portions to all his other sons, and that he was an attestor to the said Will, before the Sub-Registrar, and the same is within the knowledge of each and every family member.
(p)Though the evidence of DW.3 was thus, he could not withstand the cross examination done by the opposite party. He stated that he cannot identify the signature of his father-in-law. He deposed that he can identify the Will if shown to him and that he has not seen the Will after signing on it and that, another person by name Sri Rameshwarlal signed on the Will as attesting witness but he is no more. DW.3 could not say whether he signed before or after Late Sri Satyanarayana
Upadhayaya signing the Will under Ex.B1. He admitted that he cannot say on how many pages Late Sri Satyanarayana Upadhayaya signed, but he used to sign in Marvadi language and that the Will was signed in an office but he do not know what is the said office since he was new to the city.
(q)DW.3 also deposed that the said Sri. Rameshwarlal and DW.2 were already present in the said office by the time they went. He further stated that his wife came on the instructions of her father but did not sign the Will. DW.3 further admitted that the execution of the
Will was not know to the other daughters and sons of Late Sri
Satyanarayana Upadhayaya and the defendant No.2 got knowledge of the Will.
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(r)Since the evidence pertaining to the Will is on record let us scrutinize whether the Will could be proved in accordance with law.
According to Section 17 of the Registration Act,“the registration of the Will is optional”. But in the case on hand, the Will is a registered one.
Under Section 67 of the Indian Evidence Act, “if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting U/s.45 & 47 of the Act, the opinion of the experts and of persons acquainted with the handwriting of the person are relevant”.
(s)In this context, none of the witness was examined to identity the signature of the executant. PW.1 and DW.3 clearly deposed that they can identify the signature of the executant if the original Will is shown to them. But DW.1 bluntly refused to produce the original Will stating that it is mortgaged with the bank by his wife. DW.1 is not even clear as to the name of the bank in which the so called Will was mortgaged.
Once in a while, he says that it was deposited in Agroha Co-operative
Urban Bank Ltd.,and again during his cross examination he says that it was HDB bank. Heavy burden is caste upon DW.1 to prove the execution of the Will. When the identification of the signature is in dispute, and more particularly the original of the Will is not produced
before the court, and no person who is acquainted with the handwriting
of the executant is examined, the document should be sent for the opinion of the expert, but the defendant No.2 did not take any such steps to send the document for the expert opinion.
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Section 68 of the Indian Evidence Act, “deals with the proof of execution of the document referred by law to be attested, and it provides that such a document shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution”.
(t)The phrase that “the document shall not be used as evidence until one attesting witness atleast has been called for, the purpose of proving its execution”, does not mean that the evidence of the attesting witness can be mechanical. The evidence of the attesting witness should be so strong that it should picturize the mode of his attestation to the Will. DW.3 being one of the attestor to the Will could not identify the signature of his father-in-law nor could specify whether he has signed before or after his father-in-law signing on the Will and as to the number of pages signed by his father-in-law. DW.3 could not even give the specific name of the office where the execution took place. He excused himself from stating that he was new to the city.
Moreover, this witness is not an independent witness and is non other than the son-in-law of Late Sri Satyanarayana Upadhayaya and the husband of DW.2 who seem to be an interested witness. Therefore the evidence of this witness cannot be relied upon.
Section 59 of the Indian Evidence Act, provides “that every person of sound mind, not being a minor may dispose of, his property by a Will and three illustration to the section indicate what is meant by the expression “a person of sound mind” in this context”.
(u)No medical certificate of a doctor is annexed to the alleged Will showing that the executant of the Will was in a sound state of mind at the time of execution of the Will. The certified copy of the Will bears the 18OS.NO.169/2013 seal of Dr.Dilip Kumar Taunk, but his signature does not appear above the seal nor anywhere in the document. The defendant No.2 failed to examine the said doctor to prove that his father was in a sound state of mind at the time of execution of the Will. Therefore in the absence of any such reliable evidence, this court cannot conclude that the Will was executed by Late Sri Satyanarayana Upadhayaya in a sound state of mind, and in a healthy condition.
Section 63 of the Indian Succession Act, 1925 deals with “execution of unprivileged Wills …..... The onus of proving the Will is on the propounder and it is he who has to prove that there are no suspicious circumstances around the execution of the Will ….”.
(v)In this context if we go through the evidence of DW.1 to DW.3, the evidence of DW.1 is that, the execution of the Will is within the knowledge of all the family members. Whereas, the evidence of PW.1 and the contents of the written statement of defendant No.1, show that they do not have any knowledge about the Will. Moreover, DW.3 made clear that the remaining family members do not know about the execution of the Will except the defendant No.2. The defendant No.2 got examined one of his sister only, who is none other than the wife of the attestor to the Will. The defendant No.2 failed to examine any of the independent witness who knows about the Will. Moreover, DW.2 stated that her father executed the Will laying a pious obligation on the defendant No.2 to take care of his three sisters namely Smt.Sangeetha,
Smt. Gandha Devi and Smt. Santosh Vyas.
(w)Apart from the above series of discussions, it is pertinent to note that the life interest is given to the mother in the alleged Will dt.
19OS.NO.169/2013 12.03.2007 and from the evidence of both the parties, it is learnt that their mother expired on 21.10.2009. Ex.B3 is the transfer of title dt.12.03.2009 from Late Sri Satyanarayana Upadhayaya to Sri Vinod
Kuma Upadhayaya. Ex.B2 is the certified copy of the gift settlement deed dt.14.05.2009 executed by Sri Vinod Kumar Upadhayaya in favour of his wife Smt.Santosh Vyas.
(x)The admissions of DW.1 show that he has changed his name in the records, and gifted the property to his wife even before the death of his mother. When the life interest is created in the name of his mother,
DW.1 failed to explain the reasons for getting Exs.B2 & B3 into existence during the life time of his mother itself. There is absolutely no evidence on record to show under what circumstances Exs.B2 & B3 came on record. Even if the Will deed is believed to be genuine for a moment, admittedly DW.1 would not get any rights over the property until the demise of his mother, since his mother was vested with life interest over the property.
(y)This court cannot understand as to the hurry of the defendant
No.2 in changing the ground floor in his name and gifting the property to his wife. Therefore the defendant No.2 could not remove the suspicious circumstances surrounding the Will. Therefore this court has no hesitation to hold that the Will is not proved in accordance with the law.
(z)Since the Will is not proved, the execution of the gift settlement deed in the name of defendant No.8 by the defendant No.2, carries no weight. Therefore the Will deed dt.12.03.2007 vide doc.No.29/2007 and the gift deed dt.14.05.2009 vide doc.No.649/2009 shall be declared as 20OS.NO.169/2013 null and void and not binding on the other parties. Therefore this issue is answered accordingly holding that the Will deed dt.12.03.2007 and the gift deed dt.14.05.2009 as null and void.
12.ISSUE NO.1:
Whether the plaintiffs are entitled for a preliminary decree for partition of the suit schedule property into five equal shares and allotment of one such share each to the plaintiffs and D1 and D2 as prayed for ?
(a)The pleadings and evidence of PW.1 show that apart from the plaintiffs and defendants No.1 and 2 they are having four sisters who are living in their respective matrimonial homes. DW.1 also admitted that they are having four sisters. Admittedly the sisters were not made parties to the suit by the plaintiffs stating that their sisters have been provided sufficiently at the time of their marriages and that they have no claim over the property. Incidentally one of the sister Smt Santosh
Vyas, who was examined as DW.2 also stated in her evidence that, they were not claiming any rights over the property of their father.
(b)The learned counsel for the defendant No.2 while submitting his arguments, stated that if the Will is not proved, all the sisters would also be entitled for a share in the property. Knowing full well the preposition of law, neither the plaintiffs nor the defendants have impleaded their sisters in the present suit. No matter, if the sisters are impleaded, and they come into the witness box and give no objection to partition the property into five equal shares, it would be different and the court would do so. But the situation is different in the present suit.
(c)In Prakash and others Vs. Phulawati & others in 16.10.2015 the Supreme Civil Appeal No.7217 of 2013, it was 21OS.NO.169/2013 held that the rights of co-parcener under amendment act 2005 are applicable to living daughters of living co-parceners as on 09.09.2005 irrespective of the date of birth of the daughters.
(d)In Danamma @ Suman Surpur and another Vs. Amar & others on 01.02.2018 it was held that the daughters would have same inheritance rights equal to those of sons from the properties of their father, grandfather and great grandfather right from the codification the Hindu Succession law in 1956 and the partition is not complete without the daughters being added as parties.
(e)Vineeta Sharma Vs. Rakesh Sharma on 11.08.2020, it was held that the daughters are entitled for equal rights to the property, even if they were not born at the time of 2005 amendment of the Act, and even if the father died prior to the commencement of the Act.
(f)The final position is that, the daughters have co-parcenary rights as of the sons in her fathers property, irrespective of the date of birth of the daughter, or the date of death of the father.
(g)In view of Order 1 Rule 9 and Order 1 Rule 10 clause-(2) CPC, the court should not dismiss the suit on the ground of non joinder of parties, without affording opportunity to the plaintiffs to bring the necessary parties on record.
(h)This suit is filed by the plaintiffs in the year 2013 against the defendants No.1 to 7 and when the defendants have pleaded that the suit is bad for non joinder of parties, the plaintiffs have impleaded the defendant No.8 who is the wife of defendant No.2 and the beneficiary under the gift settlement deed but did not implead their sisters to the suit. However, this court cannot put a blame only on the plaintiffs and 22OS.NO.169/2013 dismiss the suit, since in a suit for partition, the defendants can also be termed as plaintiffs, since the plaintiffs and the defendants both together are all beneficiaries. When the plaintiffs have not taken the pain to implead their sisters, obviously the defendants can also take steps for their impleadment. When both the plaintiffs and the defendants did not take any steps to do so, the court can take judicial notice of the fact that, the plaintiffs No.1 to 3, the defendants No.1 & 2 along with the four sisters are all the share holders of the property of
Late Sri Satyanarayana Upadhayaya and are equally entitled for their share of property. Though the suit is filed by the plaintiffs for dividing the property into five equal shares, in view of the settled law that the daughters are also entitled for equal share in the property, it would be justified to divide the property into nine equal shares, and make provision for the daughters also. Therefore this issue is answered accordingly holding that the plaintiffs are entitled for a preliminary decree for partition of the suit schedule property but however, not into five equal shares, as prayed by them, but into nine equal shares in view of Late Sri Satyanarayana Upadhayaya, having nine children being his class-1 legal heirs.
(i)The above suit is filed for three reliefs, and three issues were framed accordingly. The first issue is answered holding that the plaintiffs No.1 to 3, the defendants No.1 and 2 and the four daughters are entitled for equal share in the suit schedule property.
(j) The second issue is answered in favour of the plaintiffs and against the defendants No.2 and 8 holding that the Will deed and the gift settlement deed are null and void and not binding on the plaintiffs and defendant No.1.
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(k)The third issue is answered against the plaintiffs holding that they are not entitled for recovery of any amount from the defendant No.2 towards the expenses incurred for the death ceremonies of their father and mother.
13.In the result, the suit is partly decreed by passing a preliminary decree for partition of the suit schedule property into nine equal shares, and allotting one such share each to the plaintiffs No.1 to 3, defendants No.1 & 2, and four daughters and consequently declaring the Will deed dt.12.03.2007 and gift deed dt.14.05.2009 as null and void and not binding on any of the parties.
Since the daughters are not party to the suit, they are at liberty to implead themselves in the final decree proceedings.
The rest of the claim is dismissed. No order as to costs.
Typed to my dictation by the Stenographer, corrected and pronounced by me, in the open court on this the 05th day of August, 2021.
Sd/-
I ADDL. CHIEF JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
APPENDIX OF EVIDENCE
Witnesses examined
For the plaintiff/s : For the defendant/s : PW-1: Sri Laxminarayana Upadhyaya DW-1 : Vinod Kumar Upadhyaya DW-2: Smt. Santosh Vyas DW-3: Ratanlal Vyas.
Documents marked
For plaintiff/s : Ex.A.1: Certified copy of the registered Gift settlement deed dt.17.11.1959 in respect of “A” schedule property. Ex.A2: Original death certificate of Late Sri Satyanarayana Upadhayaya. Ex.A3: Office copy of legal notice dt.17.07.2013. Ex.A4: Registered postal receipts dt.21.07.2013 numbering around seven (7). Ex.A5: Registered postal acknowledgments numbering around six (6).
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Ex.A6: Returned postal cover of defendant No.5. Ex.A7: Original valuation certificate in respect of suit schedule property.
Defendant/s :
Ex.B.1: Certified copy of the registered Will deed dt.11.05.2007.
Ex.B.2:Certified copy of the registered gift settlement deed dt.14.05.2009.
Ex.B.3: Transfer of title proceedings dt.12.03.2009.
Sd/-
I ADDL. CHIEF JUDGE,
CITY CIVIL COURT, SECUNDERABAD.