1
In the Court of the Senior Civil Judge, Penukonda
Present:- Sri M. Shankar Rao,
Senior Civil Judge, Penukonda.
Monday, this the 25th day of March, 2024.
Original Suit No.89/2012
Between:
1. Nagamma
2. Subbalakshmi (since died, memo filed that 1st plaintiff is only surviving plaintiff and she is already on record, memo recorded.)
......Plaintiffs
And
1. Aswarthamma
2. Nagaraju 3.Narayanamma 4.Sakamma 5.Salamma (D4 and D5 are added as per orders in IA 47/15 dt.6.12.17) 6.Mallakka 7.Nagarathnamma 8.Sasikumar 9.Nagalakshmamma 10.Manjula 11.Govindappa 12.Anjineyulu 13.Ramanjinamma 14.Giddappa (D6 to 14 are added as per orders in IA 85/19
dt.3.6.2019).....Defendants
This suit is coming on 28.6.2023 for final hearing before me in the presence of Sri G. Dayananda Reddy, advocate for the plaintiffs and of Sri M. Bhaskar Reddy, advocate for the defendants 1 to 3, 2
Sri Md.Asif, advocate for defendants 4 and 5 and Smt K. Jayakala, advocate for the defendants 6 to 14, upon hearing both sides and having stood over for consideration, this Court delivered the following:
J U D G M E N T
This is a suit filed for declaration of right of the plaintiffs over plaint schedule property restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property by means of permanent injunction and for costs.
2.The plaint averments, in brief, are as follows:
The 1st plaintiff is the wife and 2nd plaintiff is the daughter, defendants 1 and 2 are grand daughter and grandson, 3rd defendant is the daughter of Late Boya Bylappa. The suit schedule properties are own and self-acquired properties of Boya Bylappa and he was the absolute owner of schedule properties and had been in possession and enjoyment of the same by paying cist till his death. Boya
Bylappa has 5 daughters and he performed their marriages and have been living with their husbands. Boya Bylappa and his wife 1st plaintiff were living together at Thurakalapatnam and she alone looked after her husband in his old age with love and affection and hence Bylappa with an intention to create security to her in her old age out of free will and volition with sound state of mind executed a 3 registered will in favour of 1st plaintiff n 9.12.1997 bequeathing all his properties to the 1st plaintiff and also cancelled previous will executed on 23-8-1995 with regard to his properties. Boya Bylappa also cancelled the will dt.18.6.1987 in the year 2005 and the will dt.9.12.1997 is the last will and testament of Boya Bylappa. From the date of death of Boya Bylappa i.e., 29.8.2000 the will dt.9.12.1997 came into force and the 1st plaintiff got absolute rights over the schedules properties and she has been in possession and enjoyment of the same with her own right. The defendants had or have no manner of right over the suit schedule properties and they have no possession and enjoyment over the same. The plaintiff came to know that the defendants created revenue documents in their names by managing revenue authorities, even though they have no manner of right over the schedule properties. The plaintiff filed suit
OS 116/2001 on the file of Junior Civil Judge, Penukonda for
permanent injunction and at the time of trial the suit was withdrawn with the permission of the court as the 1st plaintiff title was challenged by the defendants and permission was accorded to file fresh suit. The 1st plaintiff is now aged 80years. The 2nd plaintiff alone is looking after the 1st plaintiff since from the death of Bylappa and 2nd plaintiff and her husband are raising crops in the suit schedule properties on behalf of 1st plaintiff as she is old and no capacity to raise crops personally and out of her free will and volition 4 and in sound state of mind the 1st plaintiff executed a registered will in the name of 2nd plaintiff with regard to her properties devolved as per will dt.5.5.1995. Hence, the 2nd plaintiff is also added as necessary party. Since 2001 serious misunderstandings developed between the plaintiff and the defendants with a view to trouble the plaintiffs creating some revenue documents for the suit schedule properties for which they have no right, possession or enjoyment over the same at anytime. The 1st plaintiff alone has been in exclusive possession and enjoyment of the schedule property with her own right and she is the unquestionable owner and possessor of the schedule properties. The defendants are making serious efforts to dispossess the plaintiff from the schedule property by denying her title and making serious efforts to trespass into the schedule property high handedly. Hence the suit.
3.The defendants 1 and 2 contested the suit and filed written statement and contended that the suit schedule properties are originally owned by Peddanna and Bylappa and Peddanna executed registered gift deed in favour of Anjanamma and Ramanjinamma daughter of Bylappa in his half share and Anjanamma and
Ramanjinamma died. Peddanna has no issues. After the demise of
Anjanamma and Ramanjinamma the defendants 1 and 2 succeeded the said properties as their daughter and son. The plaintiffs 1 and 2 5 have no manner of right, title or possession over the plaint schedule properties, the revenue authorities also issued pattadar passbook and title deed in favour of defendants 1 and 2. There is no cause of action for the suit and prayed to dismiss the suit with costs.
4. The defendants 4 and 5 filed written statement and contended that Boya Anjinappa, Boya Peddanna and Boya Bylappa are sons of
Boya Chinna Hanumanthappa and the suit schedule properties and some other properties originally belong to Boya Anjinappa, Boya
Peddanna and Boya Bylappa and they enjoyed the said properties jointly and did not partition their properties. Peddanna died issue less without marriage and his share devolved upon his brothers Anjinappa and Bylappa and both were entitled to half joint share each.
Anjinappa died leaving behind him his only son Hanumantharayappa who in turn succeeded to half share of his father in schedule properties. Bylappa died leaving his wife 1st plaintiff, 6 daughters viz., Anjinamma, Ramanjinamma, defendants 3 to 5 and 2nd plaintiff as his heirs who in turn succeeded to half joint share of their father in suit schedule properties and other properties. Anjinamma died leaving behind her 3 daughters Aswarthamma, Alivelamma and
Hanumakka as her heirs and they have succeeded to their mother's share in the said properties. Ramanjinamma died leaving behind her only son 2nd defendant as her heir and he had succeeded to his mother's share in the said properties. Hanumantharayappa died 6 leaving behind him his 3 sons Eswarappa, Govindappa, Anjappa,
Giddappa and a daughter Ramanjinamma as his heirs and they have jointly succeeded to half joint share in the suit schedule properties and other properties. Eswarappa s/o Hanumantharayappa died leaving behind him, his wife Nagarathnamma, son Sasikumar and two daughters Nagalakshmi and Manjula as his heirs and they succeeded to joint share of Eswarapp in schedule properties and other properties. The defendants 4 and 5 have been enjoying the suit schedule properties and other properties jointly with plaintiffs and defendants. The suit schedule properties are not exclusive properties of plaintiffs. Though these defendants and their sisters have been living in different places owning to their professions and avocations, they have been enjoying the schedule properties jointly and peacefully and usufructs derives from the schedule properties as per their legitimate share. The suit schedule properties being cultivated by these defendants, plaintiffs, defendants 1 to 3 and other coparceners of their family without any kind of disturbance. The 2nd defendant is wordily wise and having good relations with political leaders due to which the affairs of the schedule properties being looked after by him only and avail benefits of different government schemes by representing defendants 1,3,4, 5 and plaintiffs and other coparceners and no suspicion raised against the transactions of 2nd defendant and every thing going on smoothly on faith and trust.
7
While so, some differences cropped in between plaintiffs, defendants 1 and 3 and 4 and 5 due to women folk and the plaintiffs and defendants 1 and 3 joined together and started to act against the interests of defendants 4 and 5 and other coparceners over schedule properties for which they demanded plaintiffs and defendants 1 and 3 to come for amicable partition and separate possession of their legitimate share for which they have been postponing the same on some pretext or the other. These defendants issued notice to the plaintiffs and defendants 1 and 3 on 13.3.2013 but in spite of receipt of notice, they did not respond. Later these defendants learnt about the above suit and filed petition to add them as necessary parties and same was allowed in IA 747/2015 and entire properties of joint family are mentioned in said I.A. Govindappa, Anjanappa, Giddappa,
Sasikumar, Ramanjinamma and other coparceners of the family are necessary parties to the suit and present suit is bad for non-joinder of necessary parties. Only with dishonest intention to get wrongful gain depriving these defendants , the plaintiffs filed present suit with false allegations. There is no cause of action for the suit and the court fee paid is also not correct and they are not entitled to pay court fee U/s 24(b) of APCF and SV Act as she is not in exclusive possession of the properties and plaint is to be rejected. Hence, prayed to dismiss the suit with exemplary costs.
8
5.The 11th defendant filed written statement which was adopted by defendants 6 to 10, 12 to 14 and contended that the suit schedule properties are joint properties of Bylappa and his elder brothers Anjinappa and Peddanna and Peddanna died issueless,
Bylappa and his elder brother got half share in schedule properties.
The defendants 6 to 14 are the legal heirs of Anjinappa and all are entitled to half share of Anjinappa and suit is bad for non-joinder of necessary parties. The husband and children of 2nd plaintiff are not brought on record on the death of 2nd plaintiff. The schedule properties are joint properties of Bylappa and Anjinappa but not
Bylappa and hence alleged will said to have been executed by
Bylappa in favour of 1st plaintiff is not valid one and the alleged will executed only with regard to exclusive properties if any of Bylappa.
Further, the details of the properties bequeathes to 1st plaintiff not stated in the alleged will and for the said reason the will executed by 1st plaintiff in favour of 2nd plaintiff is also not valid and does not confer any rights over the schedule properties. The 1st defendant got 2 sisters Alivelamma and Hanumakka and they are also proper and necessary parties and not added as parties. There is no cause of action for the suit. Hence prayed to dismiss the suit with costs.
6.The defendants 1 and 2 filed addl.written statement and contended that the suit schedule properties are originally owned by
Peddanna and Bylappa and Peddanna executed registered gift deed in 9 favour of Anjanamma and Ramanjinamma daughter of Bylappa in his half share and Anjanamma and Ramanjinamma died. Peddanna has no issues. After the demise of Anjanamma and Ramanjinamma the defendants 1 and 2 succeeded the said properties as their daughter and son. The plaintiffs 1 and 2 have no manner of right, title or possession over the plaint schedule properties, the revenue authorities also issued pattadar passbook and title deed in favour of defendants 1 and 2. There is no cause of action for the suit and prayed to dismiss the suit with costs.
7.Based on the above pleadings, the following issues are settled for trial:
1.Whether the plaintiffs are entitled to declaration of title ?
2.To what relief?
The following Addl.issue is framed on 16.11.2018
1.Whether the plaintiffs are entitled for
consequential relief of permanent injunction in
respect of the plaint schedule mentioned
properties as prayed for?
The following Addl.issues are framed on 23.7.2019
1.Whether the plaint schedule mentioned
properties are belong to Peddanna and Bailappa as pleaded by defendants1 and 2?
2.Whether plaint schedule mentioned properties are joint properties of Bailappa and Anjinappa as pleaded by D.11?
10
8.On behalf of the plaintiffs, PW.1 to PW.3 examined and got marked Exs.A1 to A13.
9.On behalf of the defendants DW.1to DW.5 examined and Exs.B1 to B.13 are marked.
10. Heard arguments on both sides. Perused written arguments.
11. ADDL.ISSUE No.1:
12.DW.1 deposed Peddanna and Bylappa are brothers and sons of Chinna Hanumanthappa lived in joint family and during life time they divided and Peddanna executed registered will in favour of
Anjinamma and Ramanjinamma d/o Bylappa in the year 1976 i.e.,
Ex.B1 and Anjinamma and Ramanjinamma enjoying property after their death defendants 1 and 2 are enjoying suit schedule property and marked Ex.B2 pattadar passbook of 1st defendant. Ex.B3 pattadar passbook of 2nd defendant, Ex.B4 ROR in the name of 1st defendant, Ex.B5 ROR in the name of 2nd defendant, Ex.B6 adangal for the year 2014, Ex.B7 adangal in the name of defendants 1 and 2,
Ex.B8 adangal in the name of defendants 1 and 2, Ex.B9 adangal in the name of 2nd defendant, Exs.B10 and B11 adangal in the name of 2nd defendant, Ex.B12 Document No.1082/10 with schedule, Ex.B13 declaration before Co-operative society with property schedule.
During cross DW.1 deposed that he do not know property of Chinna
Hanumanthappa and his father’s name and he do not know how they 11 acquired lands but he said in the year 1975-1976 there was partition between Bylappa and Peddanna but there was no partition deed.
Here, there is no evidence that what are the properties partitioned and items that fell to their shares and no evidence that Peddanna claimed right over suit schedule property during the life time of
Bylappa. DW.1 stated he was not present at the time of execution of
Ex.B1 and do not know Sy.Nos., and boundaries. It is true properties are succeeded by Bylappa and Anjinappa and he did not know the way of acquisition. Further deposed that he do not know who are enjoyers for share of Anjinappa. It is true suit schedule property devolved from his ancestors.
13.Dws.2 and 3 deposed that they did not see Ex.B1 and also who executed to whom and where it was executed and do not know
Sy.Nos., extents of suit schedule property. DW.2 deposed he do not know the Sy.Nos, in which defendants are cultivating. So, their evidence is of no avail to the case of DW.1. DW.4 who is no other than the brother of one of attestor i.e., Hanumantha Reddy of Ex.B1 deposed he was not present at the time of execution of Ex.B1 and 3 months back he scribed and know the contents and deposed that to his knowledge Ramanji Reddy and Hanumantha Reddy signed as attestros to Ex.B1 and said attestors and scribe are no more. As per
Sec.63 of Indian Succession Act DW.4 who is brother of attestor did 12 not depose whether he identified the signature of his brother
Hanumtnahta Reddy in Ex.B1 hence no avail. DW.5 deposed
Anjinappa, Peddanna and Bylappa are sons of Chinna
Hanumanthappa and suit schedule properties and other properties belong to them and they have not partitioned and Peddanna died issueless and his share devolved upon his brothers Anjinappa and
Bylappa and both are entitled to joint half share each and they have been enjoying suit schedule properties and other properties jointly with plaintiff and defendants 1 to 3. During cross stated his paternal grand father Chinna Hanumanthappa got Ac.12-00cents land but no document filed. He deposed that they have not filed any document to prove that they are in joint possession and enjoyment of plaint schedule properties. DW.6 deposed that suit schedule properties are joint properties of Bylappa and Anjinppa and defendants 6 to 8 are
L.Rs of Anjinappa entitled to half share of Anjinappa. During cross stated he did not file any document to show his grand father having property in his name. His grand father has 3 sons. They did not file any document to show that they are in joint possession of properties.
DW.6 admitted that defendants created a will that Peddanna executed will in their favour regard to property and causing obstructions to the plaintiff. On perusal of Ex.B1 it reflects on items 2 and 3 of suit schedule properties and item no.1 is more extent that of suit schedule property and item no.4 is S.No.317 not 317-8 and extent mentioned 13 only Ac.0-04cents and remaining items not reflected in Ex.B1 whereas item no.2 and 3 are reflected. From the above evidence it is clear that Chinna Hanumanthappa has 3 sons Anjinappa, Peddanna and
Bylappa and they have partitioned the properties but no evidence is brought before the court. Further, DW.1 stated that there is no partition deed. DW.5 deposed Peddanna died issueless and his share devolved upon Anjinappa and Bylappa and each entitled for half share. DW.1 admitted that properties are succeeded by Bylappa and
Anjinappa and he do not know who are enjoyer for share of Anjinappa.
Here, there is no evidence brought on record that plaint schedule mentioned properties belong to Bylappa and Peddanna only and in view of admission made by DW.1 it can conclude the defendants fail to establish plaint schedule properties belongs to Peddanna and
Bylappa. Accordingly issue answered.
14. ADDL.ISSUE NO.2:
DW.5 deposed Anjinappa, Peddanna, Bylappa are sons of
Chinna Hanumanthappa and suit schedule property and other properties belong to them and they have not partitioned and
Peddanna died issueless and his share devolved upon his brothers
Anjinappa and Bylappa and both entitled to half joint share each and they have been enjoying suit schedule properties and other properties jointly with plaintiff and defendants 1 to 3 and suit schedule 14 properties are exclusive properties of plaintiff. Further, DW.6 deposed that defendants 6 to 14 are entitled to half share of Anjinap[pa and suit schedule properties are joint properties of Bylappa and Anjinappa.
During cross of DW.5 stated Chinna Hanumanthappa got Ac.12- 00cents land but not filed any document. He further depose that he has not filed any document to show that they are in joint possession and enjoyment of suit schedule properties. DW.6 stated that he did not file any document to show that his grand father having property in his name. Further stated that he did not file any document to show they are in joint possession and enjoyment of suit schedule properties. PW.1 deposed that suit schedule properties are absolute properties of Bylappa and in support marked Exs.A2 to A6 and
Bylappa executed will in favour of 1st plaintiff i.e., Ex.A1. In support of his evidence examined PW.2 attestor of will and he stated that
Bylappa executed will in favour of 1st plaintiff and also examined PW.3 who supported the case of 1st plaintiff. Here, Dws.4 and 5 deposed that Chinna Hanumanthappa having 3 sons Anjinappa, Peddanna and
Bylapa and they have not partitioned the properties and Peddanna died issueless which fact is no denial but in support of their contention they have not filed any document to show that Chinna
Hanumanthappa claiming property and further Dws.5 and 6 categorically admitted that they have not filed any document to show that 1st plaintiff, defendants 4 to 11 are in joint possession and 15 enjoyment of suit schedule properties. Hence, in view of his own admission this court cannot comes to a conclusion that plaint schedule properties are joint properties of Bylappa and Anjinappa.
Accordingly issue answered.
15. ISSUES 1 AND ADDL.ISSUE :
In a suit for declaration of title and permanent injunction the plaintiff must establish the better title affirmatively and to prove that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit. The defendants having denied the title and lawful possession of the plaintiff to the suit schedule property. Therefore, the burden lies on the plaintiff to prove these issues. It is the contention of the plaintiff that suit schedule properties are self acquired properties of Bylappa and till his time he is in possession and enjoyment and during his life time he executed registered will in favour of plaintiff by cancelling earlier wills and after his death on 29.8.2000 plaintiff is in possession and enjoyment with absolute right and 1st plaintiff executed registered will in favour of 2nd plaintiff and 1st defendant having no manner of right over suit schedule property and they have no possession and enjoyment over suit schedule property but created revenue documents in their name.
However, the defendants having denied the claim of the plaintiffs that she got right to suit schedule property as on the date of filing the suit.
The 1st defendant contended that the alleged will dt.9.2.97 is a 16 created one and one Chinna Hanumanthappa had 2 sons Peddanna and Bylappa. Peddanna and Bylappa lived in joint family. Bylappa had no male issues and he has 6 daughters and Peddanna and
Bylappa divided during their life time Peddanna executed a registered will in favour of Anjinamma and Ramanjinamma who are daughters of
Bylappa in the year 1976 and after death of Peddanna they had been enjoying suit schedule property and after death of their mother defendants 1 and 2 are enjoying suit schedule property and revenue people issued pattadar passbook and title deed in favour of us.
16.The 5th defendant contend that Bylappa not absolute owner of suit schedule property and suit schedule property not his self acquired property and alleged will is a created one and further contend
Hanumahnthappa having 3 sons viz., Anjinappa, Peddanna and
Bylappa and suit schedule property and some other property belonging to Anjinappa, Peddanna and Bylappa and they enjoyed said property jointly and peacefully and they did not partitioned their property with metes and bounds and Peddanna died issueless without marriage and his share devolved on Anjinappa and Bylappa and both entitled to half share each. The contention of 11th defendant son of
Hanumantharayappa S/o Anjinappa that suit schedule properties are not self acquired properties of Bylappa and suit schedule properties are joint properties of Bylappa, Anjinappa and Peddanna. Peddanna 17 died issueless and Bylappa and Anjinappa got half share in suit schedule properties and alleged will dt.9.2.1997 is not valid.
17.In order to substantiate the case of the plaintiff herself filed chief affidavit in lieu of chief examination as PW.1 and reiterated the plaint averments and relied upon Exs.A1 to A.11. Ex.A1 is registered will dt.9.2.1997. However, the defendants have categorically denied Ex.A1 will and claim that it is a created one and
Bylappa is not the absolute owner of the suit schedule property. When the defendants have denied the will, the burden is on the propounder of the will to prove its execution and explain and also remove all suspicious circumstances surrounding its execution. It is the case of the plaintiff that suit schedule properties are self acquired properties of Bylappa and he is absolute owner and had been in possession and enjoyment till his death by paying cists to suit schedule properties. B.
Bylappa had 6 daughters and their marriages were performed and are living with their husbands. Myself and Bylappa living in
Thurakalapatnam and I look after him in old age and Bylappa with intention to create shelter to me in old age out of free will and volition with sound mind executed registered will in my favour on 9.2.1997 by bequeathing all his properties to me by cancelling previous will executed on 23.8.1995 regard to his property and cancelled will dt.18.6.1987 in the year 2005. During cross examination she denied the suggestion that my husband executed will out of affection. PW.1 18 further stated she had begotten 6 daughters. It is clear from above piece of evidence that all the daughters of PW.1 were residing in in- laws house. PW.2 who is attestor of will Ex.A1 during cross examination stated at the time of will Bylappa was aged about 80 years. Adinarayanappa scribe also present, Bylapa wife Nagamma/1st plaintiff also present and Bylapa belongs to Thurakalapatnam and no persons of Thurakalapatnam were brought by Bylappa asd witnesses.
The above piece of evidence shows the plaintiff i.e., propounder of the will has taken active role in execution of will, in her favour by excluding the other natural heirs i.e., 6 daughters of Bylappa and 1st plaintiff. In a decision reported between A. Venkata Subbaiah and
Sons & Ors V Shaik Hussain Bee and anr 2008(5) ALT 341 =
2008(5) ALD 547 the Hon’ble Apex Court held that, “If propounder takes active part in execution of the will by excluding natural heir which leads to suspicious”
Admittedly, the testator Bylappa died leaving behind wife 1st plaintiff and 6 daughters as his legal heirs. In such circumstances even if the executant had love and affection over 1st plaintiff herein certainly he must have stated in the will why she excluded his 6 daughters in execution of will. Further, PW.1 denied suggestion that
Bylappa executed Ex.A1 out of affection. This circumstances unexplained by the plaintiff which leads to doubt and suspicion.
19
18.The record reveal that the chief affidavits of PW.2 and one
Ravi Kumar attested the will dt.9.12.1997. PW.2 who got examined says he was taken to S.R.O office and another attestor was also present and will written by Adinarayana and he identified signature of
Bylappa and his signature on Ex.A1. During cross elicited that while he was in Penukonda circle Anjinappa called him to S.R.O office and
Ex.A1 was before SRO and he attested his signature. From the above piece of evidence it is clear that POW.2 was not present at the time of execution of Ex.A1 will. Further, PW.2 did not specifically stated that he has seen Bylappa subscribing his signature on Ex.A1 will and each of attestor signed in the presence of testator. The learned counsel for the plaintiff relied on decisions reported in AIR 2005 S.C 52
between Meenakshi Ammal by LRs & Ors V Chandrasekharan
& Ors their Lordship held, “When it has been proven that the testator
competent in mind has executed the will a further enquiry is
shut out.”
AIR 1959 S.C 443 between A. Venkatachala Iyangar V
Thimmanjana their Lordship held, “The two rules of law are first that the onus lies in
every case upon the party propounding a will, a lie must
satisfy the conscience of the court that the instruments so
propounded is the last will of a free and capable testator”
20
(2002) 2 SCC page 85 between Madhukar D Shande V
Thara Bai Shalege, (2005) 8 SCC 784 between Sridevi & Ors V
Jayaraj Setty their Lordships held, “Proof of will does not ordinarily differ from that of
proving any other documents existence of suspicious
circumstances alone may not be sufficient. The court must
not start with a suspicion and it should ot close its mind to
find the truth.”
AIR 2007 S.C 311 between B. Venkatamani V C.J.
Ayodhya Ram Singh & Ors, AIR 2008 SC 300 between Savitri
and Ors V Katyayani. (2006) 9 SCC 515 between Joseph
Anthony Loderus dead by LRs V A.J. Francies their Lordships held, “The propounder of the will need not prove will
mathematically precerse. It is said that the will has to be
construed by sitting in the Arm chair of the testator.” (2008) 8 SCC 115 between Shamal Kanthi Guptha &
Ors V Heena Bai.
19.Here, as per the above laid propositions of law of the Hon’ble
Apex court the testator must be a competent person in mind to execute a will and must satisfy the conscience of the court that it is a last will of testator and existence of suspicious circumstances alone may not be sufficient and court must not stand with suspicion and it should not close its mind to find the truth and will has to be construed 21 by sitting in the Arm chair of testator. No doubt the above propositions of Apex court are well settled but the facts and circumstances in those case are different to case on hand. As discussed, the plaintiff failed to prove the execution of will Ex.A1 as per Sec.68 of Indian Evidence Act and it gives raise a suspicion as to plaintiff presence at the time of execution of will which gives raise suspicious circumstances. It is the contention of the plaintiff that
Sec.102 of Indian Succession Act speaks of ‘constitution of Residuary legate.’
Illus 3 to Sec.102 – A bequeaths all his property to B, except certain stocks all funds, which he bequeath to C, B is residuary legetee and there is no invalidity regarding Ex.A1. Here, in Ex.A1 will clearly stated all the property belonging to Bylappa bequeathed to his wife alone excluding all his 6 daughters by cancelling previous wills without any explanation hence here PW1 is not a residuary legatee.
20.PW.1 who deposed that suit schedule properties are self acquired properties of Bylappa and he was owner of plaint schedule property and he is in possession and enjoyment and he paid cist to suit schedule properties and marked Ex.A2 registered sale deed dt.22.1.1964 in the name of Bylappa. On perusal it shows Bylappa purchased Ac.0-50cents out of Ac.4-29cents in item no.2 of suit schedule properties from Chinna Thimmaiah and Ex.A3 registered sale deed dt.2.5.1983 and it shows Bylappa purchased Ac.0-12cents out of 22
Ac.3-09cents in S.No.253-7 cents i.e., item no.6 of suit schedule properties. Ex.A4 registered sale deed dt.21.1.1946 and it shows
Bylappa purchased S.No.249-1 an extent of Ac.3-79cents and
S.No.249-2 extent Ac.3-70cents i.e., item no.3 of suit schedule property. Ex.A5 pattadar passbook of Bylappa shows Sy.No.317-6 an extent of Ac.2-25cents i.e., item no.4, S.No.249 extent Ac.4-29cents i.e., item no.2, Sy.No.249-2 extent Ac.3-70cents i.e., item no.3 and
S.No.162 extent Ac.0-04cents. Ex.A6 cist receipts which shows cist paid to land. Ex.A7 is adangal and on perusal item no.1 pattadar shown as Pedda Chekkirappa. Item no.3 shows pattadar as Bylappa.
Item no.4 shows pattadar as Bylappa. Item no.5 show pattadars as
B. Venkataramappa and B. Thimmanna. Item no.6 shows pattadars as Sanjeeva Reddy, Anjinappa, Satyiah, Anjinappa, Sanjeevappa. On perusal of record it shows that the Sy.Nos., extents are quite different with each other including items which said Bylappa was in possession and enjoyment and further more, who is the enjoyars of which items, extents and survey numbers and who is the original pattadar for exact items. Ex.A8 to A11 i.e., certificate issued by Vysya bank,
Bukkapatnam in the name f Bylappa, RSR extract, E.C., E.C in favour of Kalipi society all are standing in the name of Bylappa and those documents do not establish plaintiff right and title. Ex.A9, A12 and
A13 RSR extract for S.No.249 in item No.4 of suit schedule property but those revenue documents do not confer any right over the 23 property in view of settled legal proposition. Further, the 1st plaintiff stated that after the death of Bylappa 2nd plaintiff, her husband and children are raising crops and enjoying the suit schedule properties but husband and children of 2nd plaintiff are not added as parties to the suit and suit is bad for non-joinder of necessary parties. As contended if plaintiff has got suit schedule property by virtue of Ex.A1 will in 1997 and got possession after death of testators Bylappa her name would have mutated in revenue records admitted Bylappa died in 2000. No scrap of paper filed by the plaintiff to establish and prove that she got entered her name in the revenue records by virtue of will till date of filing suit. In the absence of any such acceptable and reliable evidence it cannot be said plaintiff got suit schedule property by virtue of will and she is in lawful possession and enjoyment of same as on date of filing of the suit. Hence, the plaintiffs are not entitled for the relief of declaration of right and title in respect of the plaint schedule mentioned properties and also not entitled for permanent injunction. Accordingly, issues are answered.
21.In the result, suit is dismissed without costs.
Typed to my dictation by the Stenographer-II, corrected
and pronounced by me in open Court, this the 25 th day of
March, 2024.
Senior Civil Judge,
Penukonda.
24
Appendix of Evidence
Witnesses examined for
Plaintiffs: 2nd Defendant:
PW.1: Nagamma DW.1: Aswarthamma PW.2: P. KullayappaDW.2: C. Obulesappa PW.3: AlivelammaDW.3:U. Venkataramanappa DW.4: Ravindra Reddy DW.5: SAkamma
Exhibits marked for Plaintiffs:
Ex.A1: Registered Will dt.9.2.1997 Ex.A2: Registered sale deed dt.22.1.1964 Ex.A3: Registered sale deed dt.2.5.1983 Ex.A4: Registered sale deed dt.22.1.1946 Ex.A5: Rythwari passbook in the name of Bylappa Ex.A6: Bunch f cist receipts(marked subject to objection) Ex.A7: Adangal extract Ex.A8: Certificate issued by Vysya Bank, Bukkapatnam Ex.A9: ROR extract Ex.A10: Encumbrance certificate Ex.A11: Encumbrance certificate in favour of Kalipi Society. Ex.A12: C.C of RSR extract for Sy.No.249 Ex.A13: C.C of RSR extract for item no.4 of the schedule.
Exhibits marked for Defendants:
Ex.B1: Registered Will dt.17.5.1976(marked subject to objection) Ex.B2: Pattadar passbook in the name of D.1 Ex.B3: Pattadar passbook in the name of D.2 Ex.B4: ROR extract in the name of D.1 Ex.B5:ROR extract in the name of D.2 Ex.B6: C.C of adangal for fasli 1424 Ex.B7: C.C of adangal for fasli 1424 in the name of D.1 Ex.B8: C.C of adangal in the name of D.1 and Nagaraju Ex.B9: C.C of adangal for fasli 1424 in the name of Nagaraju Ex.B10 & B.11: C.C of adangals for fasli 1424 Ex.B12: C.C of document 1082/1990 with schedule 25
Ex.B13: C.C of declaration before Co-operative Society, Penukonda with property schedule.
S.C.J.