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IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE AT VIJAYAWADA
Present: Smt.M. Sandhya Rani, I Additional Junior Civil Judge, FAC/III Addl. Junior Civil Judge, Vijayawada
Friday, this the 03rd day of November, 2017
ORIGINAL SUIT No.1229/2015
Between: Goparaju Renuka, W/o. Late Vikram, aged about 67 years, House wife, R/o. D.No.32-13-53- 100A,SunnapubattelaCentre, Mogalrajapuram,Vijayawada.
.... Plaintiff.
And
1. L.Gowri Sankar Reddy, S/o. L. Jayachandra Reddy, Hindu, aged about 30 years, R/o.Basireddy Palem, Veerapanayani Md, Kadapa District.
2. L.Jayachandra Reddy, Hindu, aged about 72 years, R/o. Basireddy Palem, Veerapanayani Md, Kadapa District.
3. L.Prakasam Reddy, Hindu, aged about 70 years, Asst. Professor, Dept. of Physiology, Kameneni Institute of Medical Sciences, Sreepuram, Narketpally, Nalgonda District, Telangana State.
4. Siddhartha Medical College, rep. by its
Principal, Vijayawada.
5. The Manager, L.I.C of India, D.No.5-9- 211/2, Abids, Hyderabad – 522 002.
6. The Manager, Birla Sun Life Insurance, D.No.59-14-8, Silpa Arcade, Gandhi Nagar, Vijayawada.
7. The Manager, Tata AIG Life Insurance, 2nd floor, 205 My Home Tycoon, Block-A, Begumpet, Hyderabad – 16.
... Defendants.
This suit is coming before me on 01.09.2017 in the presence of Sri
K.V.Raghunath, Advocate for the Plaintiff and of Sri.Ch.Sreepathi Rao
Advocate for the D-1, Sri.T.Srinivasa Rao, Assistant Government Pleader, 2 Advocate for the D-4, Sri P. Rama Krishna Paramahamsa, Advocate for the
D-5, Sri P. Niranjana Rao, Advocate for D-6 and D-2,D-3,D-7 are exparte; and upon hearing the arguments and perusal of the material on record, and the matter having stood over for consideration till this day, the Court made the following:
JUDGMENT
1.This suit is filed by the plaintiff against the defendants for declaration that the plaintiff is legal heir of the deceased Yetukuri Vasantha Mani, thus by annulling the decision in Succession Act passed by II Additional District
Judge’s Court, Vijayawada in S.C.O.P No.524/2010 and for costs of the suit.
2. The facts of the plaint are.
The plaintiff submits that one Late Yetukuri Balaram Murthy is the father of plaintiff and her sister deceased Vasantha Mani. The said Balaram
Murthy expired on 03.04.1996 leaving his wife Y.Pankajam, G.Renuka and
Y.Vasantha Mani as legal heirs, the plaintiff is the elder sister of one Late
Yetukuri Vasantha Mani and on 16.05.2010 at about 8.30 pm she died at
Vijayawada at the residence of plaintiff leaving behind her mother
Y.Pankajam and plaintiff as legal heirs. The said late Y.Vasantha Mani is unmarried during her life time and as such Y.Pankajam mother and
G.Renuka sister are the only legal heirs and mother Y.Pankajam expired on 04.12.2011 leaving the only legal heir ie., the plaintiff.
3.The plaintiff further submits that late Y.Vasantha Mani during her life time worked in 4th defendant college as Professor & HOD Microbiology, and having a L.I.C. policy in the 5th defendant Corporation worth of 3 Rs.1,00,000/- sum assured under policy No.646509668, and having two policies in 6th defendant company and is entitled to receive a sum of
Rs.9,889.80 under policy No.3531057 and Rs.6,38,000/- under policy
No.3848931 and having a life policy in the 7th defendant company and is entitled for a sum of Rs.65,000/- under policy No.C160528189.
4.The plaintiff further submits that after the death of the said Late
Y.Vasantha Mani her mother being the legal heir filed for Succession
Certificate S.C.O.P 524/2010 on the file of II Additional District Judge’s
Court, Vijayawada against 1st and 4 to 7 defendants herein, pending enquiry the petitioner Y.Pankajam expired on 04.12.2011 and later the plaintiff impleaded as legal heir of deceased 1st petitioner as per order in
I.A.No.796/2012, dated 22.06.2012 and in the said proceedings the 1st defendant herein contested as the adopted son of Late Y.Vasantha Mani and 3rd defendant. Moreover the 1st defendant contested that there is marriage between late Y.Vasantha Mani and 3rd defendant and relied on sale deeds and a will. The court considering those documents even though the plaintiff disputed the relation between Y.Vasantha Mani and 3rd defendant and adoption of 1st defendant the court is pleased to dismiss the petition and enabling the 1st defendant herein to receive the certificate in its order dated 15.10.2015. As the proceedings in the said S.C.O.P are summary in nature the plaintiff preferred this civil suit to establish her rights by detailed enquiry thus by annulling the decision of the Succession Court.
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5.The plaintiff further submits that late Y.Vasantha Mani is unmarried until her death and more over 3rd defendant is a married person leading his independent life with his wife and children. The 3rd defendant has 2 children with 1st wife and one with 2nd wife after the demise of 1st wife. The 1st defendant is the natural son of 2nd defendant and the 1st defendant taking advantage as he was shown as nominee by late Y.Vasantha Mani in the 5 to 7 defendants company alleged to be adopted son of late Y.Vasantha Mani and 3rd defendant the 1st defendant created fake Ration card and driving license showing 3rd defendant as his father and claiming to be the legal heir of Late
Y.Vasantha Mani. The 3rd defendant never accepted the 1st son as his adopted son and it is only creation of 1st defendant for wrongful and fraudulent gains and the 1st defendant used undue influence and subjected
Y.Vasantha Mani to coercion to register documents in his names including the said will. The documents on which 1st defendant relied are not conclusive proofs to establish his relation with late Y.Vasantha Mani or with 3rd defendant.
6.The plaintiff further submits that as the Succession Court came to a decision that 1st defendant herein is entitled for certificate, this plaintiff preferred this suit challenging the decision arrived under the Succession Act and to declare the rights of the plaintiff as legal heir deciding the crucial issues afresh untrammeled by any finding made in the proceedings for grant of Succession Certificate. Hence this suit if filed for declaration of plaintiff as legal heir of late Y.Vasantha Mani thus by annulling the decision in
Succession O.P.
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7. After issuance of summons, the defendants 2 and 3 failed to appear before this court after receipt of summons and they were set exparte on 25.01.2016, and also the defendants 6 and 7 were set exparte on 08.02.2016, the defendants 1,4 and 5 made their appearance through their counsel and filed written statements separately denying the averments of the plaint, and contended that the suit is not maintainable either under law or on facts and it has to be dismissed.
8. The averments of the written statement of 1st defendant are:
The 1st defendant submits that the plaintiff approached the Hon’ble
High Court by filing a C.M.A.No.9/2016 questioning the validity of order passed in S.C.O.P No.524/2010 on the file of II Additional District Judge’s
Court, Vijayawada and also obtained an order there shall be interim stay till 19.01.2016. Thus it is clear that the plaintiff has filed appeal before the
Hon’ble High Court questioning the validity of order passed in S.C.O.P
524/2010. As such the filing of present suit is invalid under law and so far the plaintiff has not brought the said issue to the notice of this court by filling atleast memo. In view of two different proceedings before different courts, there is every possibility of conflict of decisions which is condemned by the law and procedure.
9.The 1st defendant further submits that in S.C.O.P. 524/2010 the plaintiff filed number of petitions as well as this defendant also filed material documents before the court and the court after verification of entire 6 documents as well as recording of evidence examining witnesses rightly disposed of the matter by considering the own documents executed by Late
Y.Vasantha Mani. In these circumstances, it is clear that elaborate trial took place before the Hon’ble II Addl. District Judge’s Court, Vijayawada and passed orders on merits and at presently the plaintiff approached this court under the guise that the proceedings under Succession Act is a summary trial which is not permissible and cannot be entertained either on law or on facts. Moreover, the plaintiff seeking declaration of her legal heirship by annulling the decision in S.C.O.P. 524/2010 on the file of Hon’ble II Addl.
District Judge’s Court, Vijayawada which is impermissable under law. Any
orders passed by the competent court are valid and binding on all parties concerned particularly on the person who instituted such proceedings and the legal validity of such orders can be questioned before the appellate court by the parties to the proceedings. If at all such orders are obtained by playing fraud with the court/Forum, any person who is non party to the said proceedings may approach the appropriate court for declaration that such orders obtained by playing fraud are nullity. Surprisingly the plaintiff herein who is 2nd petitioner impleaded in the place of her deceased mother in
S.C.O.P. 524/2010 though filed appeal before the Hon’ble High Court, is again seeking declaration of her legal heirship by annulling the decision in
Succession Act passed in the said succession petition from which it is apparently clear that how the plaintiff is playing fraud by mis-utilizing the law and justice system.
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10.The 1st defendant further submits that the pleas raised in the O.P by the plaintiff's mother and after death of her mother, the present plaintiff herself impleaded as 2nd petitioner and the pleadings mentioned in the plaint are one and the same and when once the Hon’ble II Addl. District Judge’s
Court, Vijayawada passed a judgment basing upon those pleadings besides the material facts, the plaintiff has no right to approach this court on the basis of same reasons either for reconsideration or for retrial. The
Succession proceedings are summary in nature is no ground to debar the jurisdiction and authority exercised by the Hon’ble II Addl. District Judge’s
Court, Vijayawada and the decision of the Hon’ble II Addl. District Judge’s
Court, Vijayawada is binding and final and also in view of filing appeal
before the Hon’ble High Court by the same plaintiff, the present suit is not
maintainable and liable to be dismissed in limini. The plaintiff filing number of proceedings for the same relief with vengeance towards this defendant by misusing the law and legal system and such acts shall strictly be condemned by this court.
11.The 1st defendant further submits that Smt. Yetukuri Vasantha Mani’s marriage performed with one Lingala Prakasam Reddy and no children were born out of wedlock and as such both of them adopted this defendant herein.
During her life time Smt. Vasantha Mani executed a Reg. Will on 28.12.2005 in a sound state of mind bequeathing her properties covering an extent of 68.2 sq. yards with a RCC roofed building situated at Arundalpet,
Guntur in favour of her mother with life interest and after her life time the property will be devolved to this defendant with absolute rights. Further the 8 Election Commission issued identity card which discloses that the father’s name of this defendant is L.Prakasam Reddy ie., husband of late Y.Vasantha
Mani. The 1st defendant driving license is also disclosing that his father’s name is L.Prakasam Reddy. Further the defendants 4 to 7 refused to pay the benefits lying with them to the plaintiff in view of nomination in the name of this defendant made by late Y.Vasantha mani.
12. In view of these facts and the own admission of the late Vasantha
Mani ie., by executing Reg. Will and authorizing the defendants 4 to 7 to pay her death benefits to this defendant by way of nomination. It is clear that this defendant alone is entitled to receive the benefits from the defendants 4 to 7 under law. Either settlement deeds or will executed by late Vasantha Mani are registered documents and there is no question or possibility of creating the registered documents by this defendant or anybody under fraud or coercion and the very own documents executed by late Vasantha Mani themselves are establishing the 3rd defendant is her husband and this defendant as adopted son of late Vasantha Mani. The plaintiff is not having any right to question and dispute the registered documents on the basis of vague allegations and stealthy claims. Moreover, the present suit filed for simple declaration of legal heirship is not maintainable without seeking proper relief with regard to validity or non-validity of registered documents executed by Vasantha Mani.
13.The 1st defendant further submits that the marriage in between late
Vasantha Mani and Lingala Prakasam Reddy is subsisting and as such this 9 defendant and his adopted father Prakasam Reddy are the sole legal heirs of
Late Vasantha Mani but not the plaintiff herein. The plaintiff has no locus standi to file the above suit as she is not the legal heir of deceased.
14.The brief averments of the 4th defendant are.
The 4th defendant submits that the suit itself is not maintainable against these defendants as statutory notice under section 80 of CPC is not given prior to filing of the suit and the suit is hit under section 80 of Civil
Procedure Code. Therefore the suit is liable to be dismissed in limine. The suit is also not maintainable as the frame of the suit is not in accordance with the section 79 of Code of Civil Procedure, which is mandatory. The plaintiffs did not follow the procedure and the rules prescribed under the provisions of the order 27 Rule 5A of the Code of Civil Procedure. The State is not made a necessary party in the suit proceedings. Therefore, the suit is not maintainable on the ground of non impleading of state as necessary party.
15.The 4th defendant further submits that Dr.Y.Vasantha Mani worked as Professor & HOD of Microbiology, Siddhartha Medical College,
Vijayawada. As per the service records, no family members details are available. The mother of Y.Vasantha Mani i.e., Y.Pankajam filed a
Succession petition in O.P.No.524/2010 on the file of II Additional District
Judge Court, Vijayawada against the 1st defendant, this defendant and 2
others as Respondents for terminal insurance benefits on the demise of the said Y.Vasanth Mani. During the pendency of the said proceedings the said 10 Y. Pankajam died and the plaintiff was impleaded as the 2nd petitioner in the said S.C.O.P.No.524/2010 as the legal heir to her mother. After elaborate trial the Hon’ble II Additional District Judge, Vijayawada was pleased to dismiss the said O.P. on 15.10.2015 , holding that the 1st defendant herein is entitled to the estate of the deceased Vasanthamani lying in the hands of the
Respondents 2 to 5 therein. The plaintiff preferred C.M.no.9/2016 on the file of Hon’ble High Court of Judicature at Hyderabad for the state of
Telangana and the state of Andhra Pradesh and the same is pending.
16.The 4th defendant further submits that this defendant is not at all responsible for making decision regarding genuine legal heirs. The terminal benefits will be released after passing the orders in I.A.No.614/2015 in
O.S.No.1229/2015, otherwise the orders issued in succession
O.P.No.524/2015, will be implemented as per the procedure in vogue.
17.The brief averments of the 5th defendant are.
The 5th defendant submits that it is an admitted fact that
Hon’ble II Addl District Judge’s Court, Vijayawada was pleased to dismiss
S.C.O.P.524/2010 on 15.10.2015 enabling the first defendant herein to receive the succession certificate. This plaintiff is also a party to the said
S.C.O.P. 524/2010. It is also admitted fact that all documents now filed in this suit are filed in S.C.O.P. 524/2010. Therefore the present suit under the same identical cause of action, is barred under order 2 Rule 2 of CPC. The salutary principle behind order II Rule 2 is that a defendant or defendants 11 should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations.
18.The 5th defendant submits that one Smt. Yetukuri Vasantha
Mani took the subject policy with LIC of India, City branch-7,(804),
Hyderabad vide policty No.646509668, Jeevan Anand (Plan-149 for sum assured Rs.1,00,000/- and the policy commenced from 27.10.2004. Smt.
Yetukuri Vasantha Mani paid premia upto 27.10.2009 and the first unpaid premium due is Rs.27.04.2010. This defendant has not yet received any claim intimation along with original policy bond and claim forms not even the death certificate which is essential for processing the claim, neither from the nominee Sri L. Gouri Shankar as mentioned in the policy document, nor from the rival claimant i.e., plaintiff herein. The liability under the policy will be Rs.1,23,150/- Therefore, this defendant submits that on receipt of the death certificate, original policy bond and other claim forms they will pay the claim amount under the policy subject to admissibility of the claim as per the directions of the court.
19. Basing on the above said pleadings of the respective parties to the suit, the court framed the following issues for trial.
1) Whether the suit is bad for non issuance of Section 80 CPC notice as contended by the fourth defendant?
2) Whether the suit is hit by Order II R2 CPC as contended by the fifth defendant?
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3) Whether the plaintiff is entitled for a decree of declaration to declare
the Plaintiff as the legal heir of deceased Y. Vasantha Mani annulling
the decision in SCOP No.524/2010 on the file of Hon'ble II Addl District
Judges Court, Vijayawada as prayed?
4) To What relief?
20.To substantiate the contentions of the respective parties to the suit during the course of the trial the 1st plaintiff was examined as PW1 and an advocate commissioner was appointed for examination of PW1 and got marked Exs.A1 to A5 and on behalf of PW1, 2nd plaintiff daughter of PW1 was examined as PW2 and got marked Exs A6 and A7. During the course of cross examination of DW1, Ex.A8, A9 and A10 are marked. The first defendant was examined as DW1 and during the course of cross examination of PW1 he got marked Exs B1 to B7.
21. Arguments Heard.
Issue No:-1
22.This suit is filed by the plaintiff for declaration as legal heir of the deceased Late Yetukuri Vasantha Mani her sister by annulling the decision in
SCOP No.524/2010 of Hon'ble II Addl District Judge, Vijayawada. The deceased Late Y.Vasantha Mani, during her life time worked in 4th defendant college as professor and HOD of Microbiology and entitled to life insurance policies in 5th, 6th defendant companies. The deceased Vasantha
Mani died on 16.05.2010. Ex.A1 is the death certificate of the Late Vasantha
Mani. After her death, inorder to claim the insurance policies in the name of 13 deceased VasanthaMani as the legal heir of the deceased since the plaintiff contends that that she died unmarried the mother of the plaintiff filed SCOP 524/2010 before the Hon'ble II Addl District Judge, Vijayawada against 1st and 4 to 6 defendants in the present suit as the 1st defendant is shown as nominee in these LIC policies. During the pendency of the said SCOP the mother of the plaintiff i.e. Y. Pankajam expired on 04.12.2011. Ex.A7 is the death certificate of the same. It is pertinent to note that father of the plaintiff the deceased was also expired already on 03.04.1996 and Ex.A2 is the certified copy of death certificate of the father of the plaintiff. The plaintiff being the sole legal heir left she got impleaded herself as legal heir in the said SCOP. The said suit ended in favour of the 1st defendant herein i.e. L.
Gowri Shankar Reddy. Ex.A5 is the Judgment of the said SCOP
No.524/2010 on the file of Hon'ble II Addl District Judge, Vijayawada.
Ex.A3 is the letter addressed by 4th defendant Siddhartha Medical college to the Advocate of the plaintiff during SCOP intimating that the settlement of pensionary benefits, i.e., GPF, Gratutity etc of Late Dr.Y.Vasantha Mani,
Professor and HOD of Microbiology, Siddhartha Medical College,
Vijayawada after receiving of the legal heir certificate only.
23. This issue is pertaining to whether the suit is bad for non issuance of section 80 CPC notice as contended by 4th defendant. Section 80 of the CPC provides for sending a notice to the Government or a public officer if one wants to institute a suit against the government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months. The object 14 of the notice is to give Secretary of State or the public officer an opportunity to reconsider his legal position and to make amends or afford restitution without recourse to a court of law. The object of the section is the advancement of justice and securing of public good by avoidance of unnecessary litigation. Section 80 enumerates 2 types of cases i) Suits against the government and ii) suits against public officers in respect of acts done or purporting to be done by such public officers in their official capacity. Regarding the former, the notice is required to be given in all cases regarding the latter, notice is necessary only when the suit is in respect of any act "purporting to be done" by the public officer in the discharge of his duty not in any other cases.
24.In the present case it clearly shows that the defendants 4 to 7 had knowledge of the facts prior to filing of SCOP 524/2010 itself and also the defendants 4 to 7 are only formal parties and they are nothing to do with the case and no relief is claimed against them. On this aspect the learned counsel for the plaintiff relied on
State of Madras Vs. C.P.Agencies
AIR 1960 SC 1309
The Hon'ble Supreme Court held that the object of the section is to give the government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. Also in
AIR 1978 (Kar) Pg.100
15 held, that Sec 80 CPC clearly states that notice would be necessary in respect of any act purported to be done by such public officer in his official capacity. There is neither act complained of nor an illegal omission against in the discharge of official duties on the facts of the case. Hence Sec 80
CPC notice is not necessary. In the light of above discussion I answered this issue in favour of the plaintiff.
Issue No.2:-
25.This issue is pertaining to whether the suit is hit by order 2 Rule 2 of
CPC which provides that if different reliefs and claims arise out of the same cause of action then the plaintiff must place all his claims before the court in one suit and cannot omit one of the reliefs or claims except without the leave of the court. In other words the grounds or cause of action on which the first suit was filed forms the foundation of the subsequent suit wherein the reliefs claimed could have been claimed in the former suit and also the suits are between the same parties the subsequent suit shall attract the bar provided under the provision. The defendant must specifically plead the above position in the suit and there should be a specific issue framed by the court to examine the pleading of the former suit, thereby giving plaintiff an opportunity to demonstrate that the cause of action in the subsequent suit is different. Inorder to examine the position it is necessary that both the plaints are read as a whole to identify the cause of action and once the same are found to be identical and also the relief claimed in the subsequent suit could have been pleaded in the former suit, the subsequent suit shall be barred as per order 2 Rule 2.
16 On this aspect the learned counsel for the plaintiff relied on
2002 AIR(MP) Pg.150
held, that that decision in SCOP is no way final or binding and unsuccessful party to the proceedings can file a regular suit in civil court on same question. According to section 387 of Indian succession Act decision of the succession certificate is no way final or binding between the parties and enables an unsuccessful party to a proceeding to file a regular suit in a competent civil court on the same question. Also in 2000 AIR SC 2301
Madhavi Amma Bhavani Amma & others Vs
Kunjikutty Pillai Meenakshi
Held, that any decision made in proceeding for the grant of succession certificate would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Hence the explanation VIII under section 11 of principle of resjudicata where an issue heard and finally decided by a court of limited jurisdiction competent to decide such issue shall operate as resjudicata in a subsequent suit even though such court may not have competence to try such subsequent suit would not apply.
1)When an application for certificate under section 372 of Indian
Succession Act is made and if judge cannot decide such right to the certificate without determining questions of law or fact which seems to be too intricate and difficult for determination in a summary proceeding he may grant a certificate to the person having prima facie best title there to.
2)So there is no doubt to hold that any proceeding for the grant of succession certificate is a summary proceeding where adjudication is made 17 primafacie as to whom such payment is tendered by such debtor and the same cannot operate as resjudicata to a proceeding in a regular suit filed in the civil court even if it is between the same parties or issues are the same.
3)The counsel for defendant 1 on this aspect relied on
Sulochana Amma Vs Narayana nair
1994 AIR 152, 1994 SCC(2) 14.
where it was held that when an order or an issue raised directly and substantially between the same parties and decided finally by a competent court though of limited or special jurisdiction will operate as resjudicata in a subsequent suit. The facts of the case are not pertaining to succession certificate proceedings and so not applicable to present suit. In the light of above discussion I answered this issue in favour of the plaintiff.
Issue No.3:-
26.This issue is pertaining to whether the plaintiff is entitled to be declared as legal heir of the deceased Y.Vasantha Mani. The plaintiff is the elder sister of the deceased whose contention is her sister is unmarried during her life time. After the death of Y.Vasanthamani their mother being the legal heir filed for succession certificate in SCOP 524/2010 on the file of
II Addl District judge, Vijayawada in order to claim for the LIC policies to which the legal heir was entitled. Pending enquiry the petitioner Y.Pankajam expired and plaintiff was impleaded as legal heir. The 1st defendant herein contested as the adopted son of late Vasantha Mani contending that there is 18 marriage between late Vasanthamani and 3rd defendant by relying on sale deeds and a will where Ex.B1 is the photo copy of household card issued in the name of 1st defendant and his adopted parents. Ex.B2 is the copy of registered gift deed vide Regd No. 12047/2006 executed by Y.Vasantha
Mani in favour of 1st defendant where there is mention of 1st defendant as her son and 3rd defendant as her husband. Ex.B3 is the copy of gift deed vide Reg.No.7182/2006 executed by late Vasantha Mani in favour of 1st defendant. Ex.B4 is the copy of Regd sale deed vide Reg.No. 1059/2008 executed by 1st defendant and 3rd defendant in favour of P. Sasidhar Reddy.
Ex.B5 is the copy of the registered will executed by late Vasanthamani vide
Regd No. 518/2005. Ex.B6 is the copy of Regd gift deed vide Doc.No.
2769/2002 executed by mother of deceased i.e. Y. Pankajam in favour of late
Vasantha Mani mentioning her as wife of 3rd defendant. Ex.B7 is the voter identity card where it is shown as D1 being son of D3. Considering these documents the plaintiff contends that the defendant was enabled to receive the certificate and therefore she filed the present suit.
27.It is evident that the plaintiff is disputing the relation between the deceased and 3rd defendant and in order to prove her contention in the cross examination of DW1 she got marked Ex.A8 and A9 photographs showing 3rd defendant with his wife and also with his son. Although the defendant has filed documentary evidence to disprove the contention of the plaintiff from which it is clear that the deceased treated 1st defendant as her adopted son. On this aspect the counsel for the defendant 1 relied on 19
V.Raja Vs Secretary to Government on 27, April, 2011
W.P.No.4522/2002
where it was held that under section 16 of HAMA if a registered document is produced as proof of adoption, a presumption is drawn in favour of adoption though it is a rebuttable presumption and onus is on the person who challenges there was no adoption and in the said case also there is no registered deed of adoption but the deceased executed a Reg will bequeathing her property in favour of her adopted son. The Hon'ble High court came to a conclusion that the said Reg. Will is valid proof of adoption.
In the present case on hand also the 1st defendant relies on Ex.B5 i.e., will executed by testator Vasantha Mani in favour of 1st defendant.
28.The DW1 contending that he is the adopted son of D3 but failed to produce any adoption deed and also failed to examine his natural parents and adopted father to prove of any ceremonies of his adoption. In the cross examination of DW1 he deposed that D3 had no other issues except him but it is clear that D3 is married and also blessed with son and daughter from that marriage. So even if it is considered that late Vasanthamani was married to D3 . As per the conditions to be taken in adoption of Hindu adoption and maintenance Act a male Hindu shall not adopt except with the consent of his wife and if he has more than one wife living the consent of all the wives is necessary unless the consent is unnecessary for any of the reasons. As per section 9 of the HAMA no person except the father or mother or guardian of a child only have the capacity to give the child in adoption. No such ceremony or giving or taking in adoption is said to have 20 taken place between the parties in the present case. On this aspect the learned counsel for plaintiff relied on.
Yallappa Vs Yallamma
2007 5 AIR (Kar) (R) 495
Held, in the absence of any registered adoption deed and in the absence of the ceremonies being performed no evidence reflecting of adoption, adoption cannot be valid. When a plea of adoption is taken there must be sufficient evidence let in by the parties in respect of the adoption that it has taken place in accordance with law and in accordance with the Hindu adoption and maintenance Act, 1956 and in the absence of any ceremonies for adoption, if there is a custom in the community to take in adoption in a particular fashion. The oral evidence of DW1 does not disclose on which date, month or year the defendant has been adopted. No evidence is let in to show as to whether religious ceremonies or rites were performed by the parents as to when they took the defendant in adoption.
29.In the cross examination of DW1, the defendant is confronted with
Ex.A8 and Ex.A9 photographs where he identified D3 but failed to identify the persons beside D3 who are the wife and son of D3. As per the conditions of adoption a male cannot adopt a son if he already got a son living. In any view of the matter it is clear that though defendant contending he is adopted son of deceased and D3 . There is no evidence as to ceremonies or deeds taking him in adoption. The defendant also failed to say the day or date of the marriage of his adopted parents since the marriage itself is disputed the defendant apart from filing the registered sale deeds and other documents 21 could not file any photographs showing the three as family to prove his contention. The defendant admitted in his chief examination that he was taken in adoption eight years prior to execution of will i.e., Ex.B5. But in the evidence let in by the plaintiff it is clear that he also continued to be son of his natural father and in some of the documents he has shown D2 as his father. Ex.A4 are the intermediate hall tickets of the defendant pertaining to the year 2006 and 2008 where he has shown D2 as his father. Ex.A10 is the copy of vehicle registration issued in the name of defendant of the year 2008 and it is marked during the cross examination of DW1 subject to objection raised by his counsel. It is also admitted by DW1 in his cross examination that the occupation of D3 as per Ex.B1 is government employee and as per
Ex.B3 is pvt employee. It only shows that the documents marked do not prove his adoption and are contrary to each other and those documents are not conclusive proof as to his adoption.
30.It is the basic principle of law that the person who sets up a case must specifically plead and prove his case. The onus is on person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the fact of adoption and its validity was held in.
Brahadambal Agency, partnership firm & others
S. Ramasamy chettiar & others
2016 3 MLJ 11
The learned counsel for plaintiff also relied on
V. Ravichandran Vs R. Ramesh Jayaram & others.
22 held, for a valid adoption the physical act of giving and taking is essential. The evidence to prove the ceremony of giving and taking should be such that it is free from all suspicions of fraud and so consistant and probable as to give no occasion for doubting its truth.
Also as per the section 9(2) of HAMA 1956, the father has the right to give adoption only with the consent of the mother. The apex court held that the oral evidence of the witnesses deposing about the ceremony of adoption shall be trustworthy. In the ceremony it is very much essential that the natural parent shall give the child in adoption and the adoptive parents shall declare in the presence of relatives and friends that they accepted the child in adoption when there is no registered document pertaining to adoption under section 16 of the Act the court has to be very cautious to guard the persons against the persons who indulge in grabbing of the properties. In
Banwarilal Vs Trilokchand and others
1980 AIR (SC) 419
Held, no evidence was led to prove that he had been given or taken in adoption. The trial court held that the adoption had not been proved. In the will there was a recital that defendant was his adopted son and the recital was considered by the first appellate court to be sufficient to prove adoption.
In second appeal the High Court upheld all the findings of fact arrived by the first appellate court except the one relating to the adoption. The recital in the will about defendant 1 being his adopted son was not sufficient to prove the adoption which therefore was held not to have established.
23
31.In the present case on hand also the statement made by the testator in the will is certainly admissible evidence but there is no rule of law that such statement must be regarded as conclusive. The party propounding the will or making a claim under a will should examine at least one attesting witness for purpose of proving its execution. It was held in
N. Kamalam & other Vs Ayyaswamy & other
2001 AIR SC 2802
Also the D1 is relying on Ex.B1 and B7 i.e., ration card and election card which are made on self served statements and are not conclusive proofs to show the relation between D1 with D3 or with deceased Vasanthmani and in Ex.A4 intermediate hall tickets D1 clearly shows D2 as his father on this plaintiff relied on.
Om Prakash Berlia & another Vs Unit trust of India
AIR 1983 Bombay 1
Held Section 61 of Indian Evidence Act provides contents of documents may be proved either by primary or secondary evidence.
Therefore it means what the document states and not the truth of what the document states.
32.Taking into consideration of the overall circumstances of the case it is evident that the defendant who is claiming right over the properties of the deceased was not taken in adoption by the deceased through a valid ceremony and there was no giving in and taking in adoption and the defendant relying on documents where the deceased shown him as adopted son are not sufficient to declare him as legal heir and also coming to the will 24 executed by the deceased i.e., Ex.B5 there is no mention in the will by the deceased that the proceeds of life insurance will be received by the nominee and the said will was also not proved by the defendant by examining one of attesting witnesses. The defendant has shown his natural father in some documents only proving that the deceased out of love and affection might have considered him as adopted son but that does not make him entitled to be the legal heir in the absence of valid adoption by the deceased.
33.In the light of above discussion since there are no other legal heirs to the deceased and rival claims are only between sister and the adopted son and the marriage of deceased also not established when the claim of adopted son is ruled out the plaintiff by natural succession is entitled for decree of declaration to be the legal heir of deceased Y. Vasanth
Mani as prayed. Therefore this issue is also answered in favour of the plaintiff. So far annulling the decision of Hon’ble SCOP court is concerned a party cannot pray for the annullment of decision arrived by earlier court.
Since the discussion is not favourable to him.
Issue No.4:-
34.IN THE RESULT, suit is decreed partly in favour of the plaintiff declaring her as the legal heir of the deceased Yetukuri
Vasanthmani.
In the circumstances parties do bear their own costs.
25 Typed to dictation to the Typist of this Court, typed by her, corrected and pronounced by me, in the open Court, on this the 03rd day of November, 2017.
I Additional Junior Civil Judge, FAC/III Addl. Junior Civil Judge, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
Plaintiff: Defendant: P.W.1: Goparaju Renuka. D.W.1: L.Gowri Shankar Reddy. P.W.2: Goparaju Hyma.
DOCUMENTS MARKED ON BEHALF OF
Plaintiff:
Ex.A.116.05.2010 Death certificate of Yetukuri Vasantha Mani
Ex.A.203.04.1996 Death certificate of Yetukuri Balarama Murthy
Ex.A.326.07.2010 Letter addressed by 4th defendant seeking Legal heir certificate.
Ex.A4---Inter hall tickets belongs to D1 in the year 2006 and 2008.
Ex.A5---Judgment in SCOP 524/2010 on the file of II Addl
District Judge at Vijayawada.
Ex.A623.02.2016 Certified copy of registered Cancellation of will
dated 31.12.1999 vide Doc.No. 288/1999 of District
Registrar, Guntur executed by Y. Pankajam vide Doc.No. 76/2006/BK No.III of SRO, Guntur.
Ex.A714.12.2011 Death certificate of Y.Pankajam issued by the Registrar of Births and Deaths, Municipal Corporation, Vijayawada.
Ex.A8 ---Photograph showing the D3.
Ex.A9---Photograph showing the D3.
ExA1021.05.2008 Photostat copy of Vehicle Registration issued by Registering Authority in the name of D1.
26 Defendants:
Ex.B.1Photo Copy of house hold card issued in the names of myself and my adopted parents.
Ex.B226.08.2006 Copy of Registered gift deed vide Reg.No.12047/2006 of SRO Guntur executed by Smt. Yetukuri Vasanthamani is my name.
Ex.B329.05.2006 Copy of Registered gift deed vide Reg.No.7182/2006 of SRO Guntur executed by Smt Yetukuri Vasantha Mani in 1st Defendant.
Ex.B416.02.2008 Copy of Registered sale deed Vide Reg.No.1059/2008 of L.Prakasam Reddy jointly in favour of P. Sasidhar.
Ex.B528-12-2005 Copy of Reg will vide Reg.No.518/2005.
Ex.B607.05.2002 Copy of Reg gift deed vide Reg.NO.2769/2002.
Ex.B707.12.2008 Voter Identity card issued by Election Commission of India in 1st defendant.
I Additional Junior Civil Judge, FAC/III Addl. Junior Civil Judge, Vijayawada.