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IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE: R.R.DISTRICT
AT L.B.NAGAR, HYDERABAD.
Present: Sri N.Ganesh Babu, B.Com., B.L. I Additional District Judge, Ranga Reddy District.
Monday, on this the 25th day of March, 2013.
O.S.No.355 of 2005.
Between:
Salveru Padmaja, W/o:Late Salveru Suryaprakah, aged:42 years, Occ:Housewife, R/o:H.No.9-3-462, Regimental Bazar, Lane.No.7, Secunderabad.
... Plaintiff.
AND
1.Salveru Susheela Bai, W/o:Late Rajalingam, aged:70 years, Occ:Housewife.
2.SalveruSatyanarayana,S/o:Late Rajalingam, aged:46 years, Occ:Business.
3.Salveru Srinivas, S/o:Late Rajalingam, aged;40 years, Occ:Business.
4.Salveru Manoj, S/o:Late Rajalingam, aged:38 years, Occ:Business. All are r/o:H.No.1-10-104/38/2, Plot.No.393, Mayur Marg, Begumpet, Hyderabad. … Defendants. This suit coming on before me for final hearing in the presence of Sri R.Bala Subrahmanyam, advocate for the plaintiff, Sri T.Srinivas, advocate for the defendants and upon perusal of the material papers, on record, and the matter having stood over for consideration till this day, this Court made the following:
J U D G M E N T
• This original suit is filed to pass a preliminary decree for partition and separate possession of the suit schedule properties A to L into five equal shares and after division of the same by metes and bounds, allot and put the plaintiff in her 1/5th share and a final decree to be passed for partition and separate possession of the schedule properties to be passed in accordance to the preliminary decree that will be passed by appointing an advocate commissioner and to pass a decree for the recovery of mesne profits in future from the date of filing of the suit from the defendants from the schedule properties D to I which are leased out to different persons for a monthly rental basis.
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2. The case of the plaintiff in nut shell from and out of the plaint averments is that, plaintiff and defendant.Nos.1 to 4 belong to Undivided
Hindu Joint Family and they are own and possess the lands bearing sy.nos.1055/3 admeasuring Ac.3.35 guntas situated at Medchal and sy.no.1055/1 and 1055/2 an extent of 5 acres acquired by late Raja Lingam in that land, the sum of land sold by the defendants except 7500 square yards 'due to financial adjustments between plaintiffs father-in-law and
Mr.Armugham and Subbaiah have executed 2 sale deeds in favour of defendant.no.1 to an extent of 2,500 square yards each and total extent of sy.no.1055/1 and 1055/2 is 7,500 square yards which is available in sy.No.267/AA admeasuring 4.20 guntas situated at Rajabolaram village,
Medchal Mandal and also having house properties at Medchal, bearing h.o.9- 254, admeasuring 228 square yards, H.No.5-213, admeasuring 117.33 square yard, H.No.12-92, admeasuring 500 sq yards and also the house properties bearing.no.1-10-104/38/1, admeasuring 150 square yards in plot.no.392, both are situated at Begumpet, Hyderabad and commercial complex bearing.no.1-1-37/38 i.e., diamond towers situated opposite to
Manju talkies lane, Secunderabad. The defendant.no.3 and 4 also purchased an agricultural wet land in sy.no.482 total admeasuring 1 acre and land admeasuring 1336 square yards in sy.no.334, situated at Medchal village and
Mandal and land in sy.no.252/A admeasuring 264 square yards situated at
Godwellivillage, Medchal Mandal, R.R.DIstict, which are hereinafter to be called as suit schedule properties.
The plaintiff is the widow of elder son i.e., late Surya Prakash of late Raja Lingam. The said Saleru Raja Linagm @ Maya Raja Lingam was the original owner of the suit schedule properties. The D1 is the wife of Raja
Lingam and D2 to 4 are the sons of late Raja Lingam. The said S.Raja
Lingam died in the year 1996 leaving behind him his wife and the husband of
PW1 Surya Prakash and defendants 2 to 4 herein and four daughters namely
Sabitha, Vijya lakshmi, Madhumathi and Sunitha. The daughters of Raja 3
Lingam got married and they have given due shares at the time of their marriage and they have no right to claim over the schedule of properties.
That out of the four sons of Raja Lingam, his eldest son namely Surya
Prakash was died in the month of October, 1981, leaving behind the plaintiff herein and the eldest daughter-in-law of Raja Lingam. The defendant.no.1 is the house of late Raja Lingam and she has no other income to purchase the properties that stands on her name and infact, they are purchased by late
Raja Lingam only.
The plaintiff got married with defendant.no.1's eldest son Surya
Prakash on 19.05.1978 and from the date of marriage, Surya Prakash was not keeping good health and he was ailing for some years and ultimately he died in the month of October, 1981 and after death of her husband, her father-in-law Raja Lingam also died. There was no issues to the plaintiff with her husband and she has not got married till today after the death of her husband late Surya Prakash. Late Raja Lingam was a RTA broker in twin cities and used to earn sufficient money for his family and he has purchased and possessed the agricultural lands bearing sy.nos.1055/1 and 1055/2 an extent of 5 acres and in that land, some of the land sold by the defendants except 7500 square yards which is available and also purchased land in sy.no.1055/3. The said raja Lingam purchased the above property during his life time and also purchased some of the properties in the name of his wife
Susheela Bai i.e., D1 and all are in joint possession and enjoyment of the said properties till today and after the death of said Raja Lingam and also some of the properties purchased by defendants with joint nucleus funds.
The plaintiff and defendants are having equal share of 1/5th each in A schedule property and so also B schedule property. The S.Raja Ligam also purchased the lands which are shown In schedule C property and after the name of D1 was entered in the revenue records, are still undivided and no partition having been effected in between the plaintiff and defendants and it is in joint possession and enjoyment of them. The plaint D to F properties 4 are also in joint possession and enjoyment of defendants 1 to 4 wherein, raised six shutters in the schedule F property and these properties are to be effected partition between plaintiff and defendant and 1/5th share to each to be allotted. The husband of D1 acquired the land and developed the same through his builders for the purpose of commercial complex which is shown as the G schedule property and the same are got registered in the name of
D1 and also Surya Prakash the husband of plaintiff, cellar C4 shop admeasuring 350 sft and ground floor G8 and G9 admeasuring 400 sft, the 1st floor, 107 and 108 admeasuring 265 sft each, 2nd floor, Sf 204, 205, 207 and 208 admeasuring 265 sft each, 3rd floor, TF 305, admeasuring 400 sft .
The plaintiff and defendants have got other house bearing.no.1-10-104/38/1 in plot.no.392, admeasruing 150 sq yards, situated at Begumpet, Hyderabad raised 3 shutters along with residential house in ground floor and in 1st floor over the said property and leased out to different lessess on monthly rental basis as shown in schedule H property and it is also in joint possession of the plaintiff and defendants which are to be effected partition between them. So also in the case of I, J, K, L properties.
So far, no partition having been effected in between the parties herein in respect of suit schedule properties A to L and the said properties are liable to be partition and to allot and to put the plaintiff of her respective 1/5th share in the said property. The original documents pertaining to the suit schedule properties ware with the defendants only. The plaintiff was thrown out of the defendants house when she demanded her husbands share in the suit schedule properties. The plaintiff also served the defendant's family for several years after the death of her husband and stayed with defendants only. The plaintiff requested D1 about her share in schedule property but she post poned the same to one pretext or the other and with the collusion of the other defendants, the plaintiff was thrown out of their house to grant her share. After this incidents also, the plaintiff demanded several times about her legally entitled share to D1 but D1 has promised to 5 effect the partition within short time and has postponed the matter one or the other reason since 2 ½ years but so far no partition has been effected by
D1. Due to increase of the market value within the twin cities of the suit schedule properties A to L, the defendants 1 to4 colluded with each other and tried to alienate the suit schedule properties to 3rd parties and has been smelt by her, immediately, the plaintiff approached the defendants to give her share on March, 2005 but they once again postponed the partition and on 01.09.2005, finally demanded the defendants for her share but they are bluntly declined to effect the partition and threatened that they will alienate the suit schedule properties under ay circumstances by depriving the legitimate share of the plaintiff, hence, the suit.
3. The defendant.No.4, has filed written statement and the same is adopted by defendants 1 to 3.
These defendants apart from denying the averments in each para of the plaint, except those are specifically admitted in the written statements, specifically denied that the plaintiff and the defendants 1 to 4 are belongs to undivided Hindu joint family and so also the plaintiff and defendants own and possess of the suit schedule properties. The revenue authorities wrongly mentioned the name of this defendant's father but actually, the said property belongs to others and the original owners have already sold the B schedule property to various purchasers and purchasers have also constructed residential houses. So far A schedule property, it is consisting of 7500 square yards which belongs to late Raja Lingam, Dubbaiah and D.Armugham. The D1 purchased 5000 square yards belongs to the share of Mr.M.Gubbaiah and D.Armugham out of her Sthreedhana property.
The suit schedule property originally purchased by D1 in her name out of her
Sthreedhana property and exclusively belongs to her only. The schedule D,
E, G and I properties are also purchased by D1 out of her Sthreedhana and exclusively belongs to her. In case of schedule H property, it belongs to one
Radha Bhai who is the neighbour of D1. In case of J property, it was 6 purchased by 3rd defendant out of his own earnings and latter, the schedule
J property was sold to one T.Ravider Reddya nd others. It is denied that schedule K and L properties belongs to Hindu Undivided Property but actually these properties were purchased by the 4th defendant out of his own earnings. The plaintiff filed the above suit without verifying whether the properties are belongs to joint family properties or self acquired properties of the defendants and without verifying the actual owners of the properties, simply filed the partition suit for illegal gain.
It is a fact that plaintiff is the widow of elder son of late Raja
Lingam. But, he was not the original owner of the suit schedule properties except A schedule property. It is denied that D1 is the house wife of late
Raja Lingam and that, the properties were purchased by late Raja Lingam only. Infact, D1 hails from a landlord family and she got more Sthreedhana from her father and thereafter, she developed the same by purchasing huge properties in her name and the same was also furnished to the income tax department by way of filing returns regularly. Late Raja Lingam was doing
RTA consultant and his entire earnings are used to manage the family and he has not having capacity to purchase the properties above mentioned. After the death of Surya Prakash, the plaintiff gone to her parents house at
Hyderabad and used to reside there and demanded to settle her share.
Thereafter, late Raja Lingam brought the issue before the elders and the elders have settled the issue and accordingly and agreement was executed on 22.09.1988 and the plaintiff has signed the said agreement by accepting the conditions mentioned in the agreement. As per that agreement, plaintiff received Rs.30,000/- and Rs.20,000/- apart from the gold and agreed that she has no claim whatsoever against Raja Lingam and his family members.
The said agreement witnessed by her brothers, maternal uncle and brother- in-law. The plaintiff is residing at her parents house after the death of her husband and after lapse of 18 years, she filed the present suit only in order to harass the defendants with the instigation of her brothers and her family 7 members for illegal gain as the property values fetch more. The plaintiff intentionally kept the agreement in dark and filed this case only in order to gain money illegally.
During the life time of Raja Lingam, he executed a will deed
dated:13.06.1994 in favour of the defendants by bequeathing the properties
which are belongs to him. In the said will deed, late Raja Lingam, clearly mentioned about the execution of the agreement and settlement with the plaintiff. By this, it is clear that plaintiff has already settled her claim during the life time of late Raj Lingam and she has no right to claim partition in respect of the suit schedule properties. Except plait A schedule property, all the other properties were purchased by the defendants through their own income. If at all the plaintiff is having right in the schedule property, necessarily, the plaintiff has to issue a legal notice by demanding the defendants for partition and separate possession of her legitimate share.
The plaintiff intentionally not issued the legal notice and if the legal notice was issued the entire truth will come out for that reason, the plaintiff fails to issue the legal notice. There is no cause of action arose on March, 2005 when the plaintiff thrown out of their matrimonial house and so also on 01.09.2005 when she demanded the partition and these cause of actions are invented only for the purpose of filing the suit. The plaintiff has failed to establish that the schedule properties are joint family properties and when the properties are not joint family properties, the question of filing partition suit does not arise. The plaintiff also failed to establish that she is having joint and constructive possession of the suit schedule property and the court fee paid if not sufficient, as such, the suit is liable to be dismissed
4. Upon the aforesaid pleadings of the parties, the following issues are settled for trial
1. Whether the plaint A to L properties pertains to joint family and they are available for partition?
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2. Whether the settlement agreement dated: 22.09.1988 is true, valid and acted upon?
3. Whether the will dated:13.06.1994 is true, valid and acted upon?
4. Whether the plaintiff is entitled to a decree for partition of plaint schedule A to L properties into five equal share by metes and bounds and for allotment of one such share to the plaintiff?
5. To what relief?
5. During the trial, in order to substantiate the suit claim the plaintiffs examined herself as pw1, her cousin brother K.Sriram as pw2 and pw3 P.Sudhakar who is grand son of late Y.Veeraiah who is the father of the
D1 herein and got marked exhibits A1 to A17. Whereas, in order to deny the claim of the plaintiff of her claim over the schedule property to establish the execution of the will deed by late S.Raja Lingam, the defendant.no.4 S.Manoj is examined as DW1. The Mohd.Nazaruddin who is said to be family friend and attester of the will allegedly executed by S.Raja Lingam as Dw2 and one
Tirupathi Rao who is son-in-law of D1 and attester of said will as DW3 and got marked exhibits B1 to B23.
6. Heard the learned counsel for the plaintiff. Heard the learned counsel for the defendants who have also submitted written arguments.
7. ISSUE.NO.1
Whether the plaint A to L properties pertains to joint family and they are available for partition?
The properties in Hindu law are broadly classified as ancestral, joint family and self acquired. The appreciation and grant of reliefs in a suit for partition is mainly depending on the nature of the schedule of property.
Equally, burden of proof varies depending on the determination of the nature of the schedule of property out of the above three categories. Before adverting to deal with the schedule A to L properties of its nature, it is necessary to place on record the contraverted acts in the shape of admissions between the parties. Late S.Raja Lingam is the father-in-law of 9 the plaintiff and husband of defendant.no.1 and father of defendants 2 to 4.
late Raja Lingam has died on 28.12.1996 leaving the plaintiff and defendants 1 to 4 as his legal heirs to succeed to his estate. The husband of the plaintiff
S.Surya Prakash is the elder son of late Raja Lingam and his marriage with the plaintiff was solemnized on 19.05.1978 which also can be seen from the marriage wedding card under exhibit A1 and late Salvelu Surya Prakash has pre-deceased his father Raja Lingam being died in the month of October, 1981 issueless. Late Raja Lingam has got four daughters namely Sabitha
Vijaya Laxmi, Madhumathi and Sunitha and their marriages were performed during the life time of Raja Lingam and they are residing in their respective matrimonial homes and that, they are unconcerned with the schedule of property as their father has sufficiently given amount and property at the time of their marriages. The plaint A schedule property stands in the name of Raja Lingam. But there is a contraversy in respect of B schedule property either in the name of L Raja Lingam as claimed by the defendants or S.Raja
Lingam whose name is recorded in the pattadar and possessory column of the revenue records, i.e., pahanies exhibits A7 to A12. The other schedule properties stands on the name of Defendants 1, 3 and 4. late Raja Lingam has worked as a RTA broker for twin cities of Hyderabad and Secundrabad.
According to the extention of plaintiff, late Raja Lingam as RTA broker had earned sufficient income and that he purchased plaint schedule A to E, G and
I in the name of D1 and that, even after the death of Raj Lingam, the undivided joint family of the defendants have purchased the schedule J property that stands in the name of 3rd defendant and schedule K, L and I in the name of the 4th defendant with the joint family nucleus, as such, plaintiff is entitled to claim 1/5th share in all the plaint A to L schedule properties.
Whereas, the defendants case is that laate Raja Lingam has purchasd only A schedule property with his earnings and that the plaint B to G and I properties were purchased by D1 with her Sthreedhana property and that the defedant.Nos.3 and 4 purchased J, K and L properties with their own 10 earnings and it is their self acquired properties. In view of this diversified claim of the nature of the suit schedule property, it should be physledout by appreciating the oral evidence placed by both the parties sicne it is an admitted fact that the source of payment of considration in acquisition of these schedule properties being not divulged in the concerned sale deeds and agreement of SALE cum GPA on both sides, exhibits A14 to A17 and exhibit
B2, B9 to B11.
8. In the instant case, the defendant.no.4 in the witness box as
DW1 has conceded the fact that his father late Raja Lingam had not possessed and inherited ancestral property from their ancestors. It means, the nature of the suit schedule property either must be joint family property of late Raja Lingam or the self acquired properties of the defendants in respect of plaint B to L schedule properties. If that being so, the initial burden lies on the plaintiff to prove the existence of joint nucleus. The examination in chief of Pw1 Smt.B.Padmaja is nothing but reiterating of the plaint averments as extracted supra. It is elicited in the cross examination of pw1 that at the time of death,her husband was aged 45 years and prior to death, her husband was supplying provisions etc to the hostels. Her father- in-law was a RTA broker and she has not produced any documentary evidence such as sale deed to prove the purchase of land by Raja Lingam and the said property belong to their joint family property. So also she has not produced any sale deed to prove that the plaint schedule property was purchased by the defendants. However, she denied the suggestion that her father-in-law has nothing to do with B to L schedule properties. Admittedly, plaint B to L schedule properties have been acquired after the death of
S.Raja Lingam. Even as per the version of pw1, she came to her parents house in the year 1998 being allegedly necked out by the defendants when she demanded her share in the schedule property. In this regard, pw1 clearly stated in her cross examination that till the death of her father-in-law, she resided in the house of her father-in-law. Since 1996, sheis residing with 11 her parents. In the year 1998 or so, the defendants necked out her from the house, without any reason. Of-course, in the further chief examination, pw1 stated that she came to matrimonial home in the intervention of the elders in the same year and continued to stay with the defendants upto the year 2005. Anyway, it is not the case of the plaintiff that she made any contributions to the joint family after the demise of her husband in he year 1983 or subsequently after the death of her father-in-law Raja Lingam. But fact remains is that the late Raja Lingam purchased A schedule property along with D.Armugam and Dubbaiah having 2500 square yards each.
According to the plaintiff, the co-vendees of Raja Lingam i.e, Dubbaiah and
Armugam have executed the sale deeds in favour of D1 in respect of their share of 2500 square yards each nominally, which is by way of adjustment to the amounts due by them to S.Raja Lingam on settlement of their real estate business. Whereas, the case of the defendants that the defendant.No.1 purchased the above 5000 square yards of land which is part of A schedule property from Dubbaiah and Armugham with her Sthreedhana property.
Then, the issue now apart from the onus on the D1 to prove that she got
Sthreedhana property from her parents, whether the earnings of the Raja
Lingam which is ultimately to be treated as joint family nucleus is sufice to acquire the properties that stands in the name of D1.
9. The PW1 has clearly stated in her evidence that her father-in- law as an RTA broker used to earn sufficient money for his family used to do business and also purchased the suit schedule properties in his name and in the name of D1 during his life time. Of-course, in the present case, both the plaintiff and defendants have not chose to produce the documentary proof showing the income of late S.Raja Lingam as a broker, so also, submission of the income tax returns, though not specifically pleaded that the late Raja
Lingam as income tax assesee but upon taking the statemnet of DW1 in evidence that he used to submit income tax returns. It is suggested to DW1 and denied by him that his father used to earn Rs.2,000/- to Rs.3,000/- per 12 day as on the date of the marriage of the plaitif. However, this DW1 has tried to furnish the income of his father, Rs.200/- to Rs.300/- per day. DW1 further says that except RTA agent, his father has no other business. With the income of his father, himself and his brothers and sisters are depending.
10.In the given situation, now the court has to see whether any evidence is placed by D1 showing existence of Sthreedhana property of her acquire the schedule propeties that stands in her name, otherwise, the plaintiffs case shall be accepted that late S.Raja Lingam purchased the some of the schedule properties in the name of D1.
11. The learned counsel for the plaintiff has contended that though it is commonly pleaded in the WS of D4 that D1 has got Sthreedhana property but the D1 failed to establish the said fact as she did not enter into the witness box, on the other hand, the plaintiff has succeeded in eliciting from DW1 and by examining PW3 who is close relative of D1 of her above case.
12. As per the evidence of Pw3 P.Sudhakar, he is close relative of plaintiff and defendants and that, during the life time, late S.Raja Lingam had acquired suit schedule properties in the name of D1 and some of he properties in the suit schedule properties were acquired by the defendants with the help of joint family funds. Late Y.Veeraiah who is his grand father has got 4 daughters and four sons and he is the son of one of his daughters
Smt.Laxmamma. The other his 3daughs are Smt.Gajamma, S.Susheela Bai (D1 herein) and late Smt.Kamalamma. It is pertinent to note that above relationship claimed by pw3 is not disputed by the defendants. The pw3 clearly stated that his grandfather does not have any movable or immovable properties and he hails from a very poor family background and he performed all his daughters marriages during his life time. There was no
Sthreedhana given to any of his daughters as he does not have any properties. His father married his mother without taking any amount so also late S.Raja Lingam married D1 by spending his own amount at the time of 13 his marriage and during the life time of his grandfather, the said Raja Lingam has supported financially to his grand father i.e., late Y.Veeraiaha who was suffering with his day to day livelihood because the said late Y.Veeraiah does to have any movables or immovable properties till his death. As he was hails from very poor family as such, the question of late Veeraiah given sthreedhana to D1 does not arise. This evidence of pw3 is left unchallenged as he isnot subjected to cross examination on behalf of the defendants. If so, this evidence of pw3 is suffice not only to support the claim of pw1 that late S.Raja Lingam used to earn substantial amounts as an RTA broker for twin cities in those days but also reject the claim of D1 that she got the
Sthreedhaana properties from her parents and with that she purchased this property that stands in her name.
13.Coming to the evidence of DW1 on the ongoing issue, he admits that they stated in their written statement that some plaint schedule properties are in his mother name which was purchased with her
Sthreedhana. But they have not given particulars of the quantum of
Sthreedhana. Witness adds the Sthreedhana was brought from her parents.
His mother not informed to him about the quantum and particulars of
Sthreedhana. As rightly contended by the learned counsel for the plaintiff, had really defendant.No.1 got this Sthreedhana property, she would have furnished the details of those Sthreedhana to DW1 being her son that too, when the present litigation is pending right from the year 1996 onwards the plaintiff demanding her share in the schedule property. As such, it is a clear indication that no such Sthreedhana had derived by the D1. The DW1 admits that his father and mother and all their brothers were living together. At the age of 7 or 8 years, his mothers marriage was taken place. The DW1 clearly stated in his cross examination that his father purchased 11.27 guntas of land at Medchal along with one Armugham and Subbaiah in Sy.Nos.1055/1, 1055/2. witness adds that the said property was sold by retaining 2,500 square yards in his name. The said property was made into plots and sold to 14 all these people. In continuation, DW1 admits that with the income from that sale of the said Medchal property, some of the suit schedule properties were purchased. As seen from the evidence of DWs 2 and 3, they are examined only to prove the alleged execution of will by late Raja Lingam. These admissions on the part of DW1 can throw away the contention of the learned counsel for the defendants that as late S.Raja Lingam had no ancestral property and with the meager income of Rs.200/- to Rs.300/- per month, could be hardly sufficient to maintain his big family of 4 daughters and 4 sons, to purchase some of the schedule properties in the name of D1 with his income does not arise. The learned counsel for the plaintiff has come up with the Judgment of the Hon'ble High court of A.P in P.Subba Laxmi and another Vs. P.Ramya and others, 2011 (1) ALT 256, wherein, it is held that “Record disclosing that challenge to finding of trial court as regard “B” schedule property – property, acquired in the name of R1 who is mother of R2 and 3 and Ramana Murthy- record disclosing that her parents were not in a position to arrange the amount, required for purchase of B schedule property, nor was it proved that she had any other Sthreedhanan property, which can be utilised for purchasing the same – 3rd respondent clearly admitting in his evidence that B schedule property was purchased 15 years after R1's marriage – heavy burden lies upon the person claiming it to be his or her exclusive property, to prove that fact – R1, who made exclusive claim for the property not chosen to enter the witness box – DW1's evidence on that aspect scanty and not of much use.” •
14. In the present case, the defendant.No.3 did not choose to enter into witness box to deny the claim of the plaintiff that the plaint J schedule property that stands in his name has also purchased from the joint family nucleus left by late Raja Lingam., which he is bound to do and as he failed to enter into witness box, adverse inference can be drawn against the case of
D3 that he purchased J schedule property with his own income. DW1 in his chief examination itself stated that during the life time of late Raja Lingam, he purchased the plaint K and L schedule property with his own earnings. As 15 seen from the examination in chief of DW1, except a stray sentence that except the plaint A schedule property, the other properties were purchased by this defendants through their own income, has not divulged the particulars of his earnings and how he paid the consideration amount in purchase of schedule property that stands in his name. On this issue, the learned counsel for the plaintiff contended that the defendants 3 & 4 failed to establish their claim that these schedule properties that stands in their names were purchased by them out of their own earnings by not placing of the positive evidence, then such claim of the defendants shall be thrown out.
In support of the said contention, reliance is placed on the Judgment of the
Hon'ble High court of A.P in P.Subba Laxmi and another Vs. P.Ramya
and others, 2011 (1) ALT 256, wherein, it is held that “Record disclosing that challenge to finding of trial court as regard “B” schedule property – property, acquired in the name of R1 who is mother of R2 and 3 and Ramana Murthy- record disclosing that her parents were not in a position to arrange the amount, required for purchase of B schedule property, nor was it proved that she had any other Sthreedhanan property, which can be utilised for purchasing the same – 3rd respondent clearly admitting in his evidence that B schedule property was purchased 15 years after R1's marriage – heavy burden lies upon the person claiming it to be his or her exclusive property, to prove that fact – R1, who made exclusive claim for the property not chosen to enter the witness box – DW1's evidence on that aspect scanty and not of much use.” another point in the same citation that “Judgment of trial court disclosing a clear finding that R3 not having capacity to purchase C and D schedule properties – however, a sudden shift made that appellants failed to prove that the property was purchased with the funds of joint family are those arranged by kartha – finding not definite and clear -cannot be sustained, reason being that if a co-parcener in a joint family pleads that an item of property was acquired by him exclusively for himself, burden rests upon him to prove that he was possessed of adequate funds for purchasing the property – failure of R3 in that regard – finding of trial court as to nature of C and D schedule property that they are not available to be partitioned, untenable.” 16
15. The contention of the learned counsel for the plaintiff is that when the husband of pw1 was a earning member in the joint family during the life time of late Raja Lingam, one should not lost the sight of the contribution from the earnings of the deceased S.Surya prakash, husband of
DW1 to the common hotchpotch, as such, the schedule of properties purchased by late S.Raja Lingam must be taken as the joint family property out of the joint nucleus. In this regard, the learned counsel for the plaintiff has taken this court to a fact elicited in the cross examination of pw1 on behalf of the defendants i.e., “prior to death, my husband was supplying provisions to the hostels” but, this statement of pw1 being not denied by the defendants by not placing suggestions to pw1, it amounts to an admission. In support of this contention, reliance is placed on the judicial precedent of the Hon'ble Punjab High Court in M/s Chuni Lab,
Dwarakanadh Vs. Heartford fire Insurance Company Ltd., reported in
AIR 1958 Punjab, 440, wherein, it is held that “It is a well established rule of evidence that a party should put to each of his opponents witnesses so much of his case as concerns that particular witness. If no such questions are put, the courts presume that the witness account has been accepted.”
But in this case, the PW2 K.Sreeram who is a cousin sister of the plaintiff has clearly stated in his cross examination that the husband of the plaintiff had no avocation. It has come in the evidence that the husband of pw1 was suffering with ailment for the past few years prior to his death.
Under these circumstances, court is not inclined to accept the contention of the learned counsel for the plaintiff that the husband of pw1 might have contributed his earnings in the joint family headed by late S.Raja Lingam during his life time as Kartha.
16.It is the finding of this court that it is the late S.Raja Lingam with his earnings purchased some of the schedule property in the name of
D1. In respect of B schedule property, though it is pleaded by the defendant that the B Schedule property belong to one L.Raja lingam but by mistakenly 17 the name of husband of D1 is entered and that the said N.Raja Lingam converted the land under schedule B to plots and sold away individually to 3rd parties and presently they have constructed houses and residing therein.
Where as the case of the plaintiff is that B schedule property has been acquired by her father-in-law, late S.Raja Lingam but ultimately she has contended that this B schedule property is converted into house plots and sold to 3rd parties. But, the plaintiff has shown the B schedule property as vacant land. It appears that during the life time of late S.Raja Lingam itself, the B schedule property was sold to 3rd parties. If such is the case, this B
Schedule property is not available for partition as sought by the plaintiff.
17.The sum and substance of the aforesaid discussion is that the plaintiff has succeeded in proving not only the purchase of the A schedule property with his own earnings but also purchased the plaint schedule properties in the name of D1 during his life time and further, after the demise of her father-in-law, Raja Lingam, the plaint J, K and H schedule properties purchased with the joint family nucleus. Hence, this issue “Whether the plaint A to L properties pertains to joint family and they are available for partition?” is answered affirmatively in favour of the plaintiff.
(Exhibit A3 to A6 are the EC obtained by the plaintiff in respect of suit schedule properties showing no encumbrance on this property. The exhibits
A7 to A14 are the CCs of pahanies for the years 1999-2000, 1985-86, 1999- 00, 1997-98 1998-99 and 1980-81. the suit survey.no.1055/E is shown the
D1 as pattadar and possessor of Ac.3.35 guntas and also Armugam and
M.Dubbaiah and also in respect of sy.no.267 which is in the name of
S.Suseela i.e., D1 herein. There is no dispute of the fact that after the death of late S.Raja Lingam, the defendants are managing the schedule property, as such, there is no much significance to exhibit A13 the bunch of property tax receipts.) 18
18.ISSUE.No.2
Whether the settlement agreement
dated:22.09.1988 is true, valid and acted upon?
On this issue, burden lies on the defendant to prove that late
S.Raja Lingam has settled the matter on the demand of the plaintiff of her share in the schedule property after the demise of her husband and that, the said settlement was reduced in writing by the plaintiff that she has relinquished her rights over the schedule property upon receiving of
Rs.30,000/- periodically apart from handing over 8 tulas of gold ornaments and DD for Rs.20,000/- for relinquishing all her claims in the family property.
But in this case, that settlement agreement has not seen the light of the day though it is filed for the obvious reason that being it is an unregistered document where the registration is must. As per the evidence of DW1, after the death of Surya Prakash, ie.., the husband of the plaintiff, plaintiff gone to her parents house and used to reside there and demanded to settle her share. Thereafter, late late S.Raja Lingam brought the issue before the elders and accordingly, an agreement was executed on 22.09.1998 and the plaintiff has signed the said agreement by accepting the conditions mentioned in the agreement. The said agreement is witnessed by the plaintiffs brothers maternal uncle and brother-in-law and others. Anyway, the defendant has not chosen to examine the elders in whose presence the above terms of the agreement have been settled and the execution of such agreement by pw1 herein. Similarly, no evidence is forthcoming that the parties have acted upon this settlement agreement by producing the same
before the revenue authorities or other concerned government department.
It is settled law that any amount of the evidence relating to any document has no evidentiary value if that document is not admitted in evidence. It is the case of the defendant that this settlement agreement is also reflecting in the will dated;13.06.1994 marked as exhibit B1. Anyway, the finding of this court on issue.No.3 that a will cannot be accepted as the defendants fail to 19 clear the cloud of suspicion revolving around this will which is mandatory in law for which, reasons will be assigned while dealing with issue.No.3 in a short while. The totality of all these facts and attendant circumstances would drive this court to accept their contention of the plaintiff that the defendant's have failed to establish their claim that the plaintiff has given up their share in the property by executing the so called settlement agreement, hence, this issue “Whether the settlement agreement dated:22.09.1988 is true, valid and acted upon?” is answered negatively against the defendants.
19.ISSUE.NO.3:
Whether the will dated:13.06.1994 is true, valid and acted upon?
Undoubtedly, in order to discharge the burden of proof on this issue, the defendants have examined the attestors of this exhibit B1 will as
DW2 and 3. before adverting to deal with the oral evidence on this will set up by the defendants, it is pertinent to notice that the defendants have miserably failed to elicit in the evidence of PWS 1 to 3 any facts in the form of admission of the alleged execution of this exhibit B1 will by late S.Raja
Lingam prior to his death.
20. In this regard, the DW1 has stated that during the life time of late S.Raja Lingam he executed a will deed dated:13.06.1994 in favour of the defendants by bequeathing the property (A schedule which belongs to him) and in the said will deed,his father clearly mentioned about the execution of agreement and settlements with the plaintiff. From the above, it is clear that the plaintiff has already settled her claim during the life time of their father late S.Raja Lingam and the plaintiff has no right to claim partition in respect of the suit schedule properties.
21. Coming to the evidence of DW2, he says that he is the family friend of late S.Raja Lingam and that on 13.06.1994, late S.Raja Lingam requested him to attest the will deed. He knows the other witness K.Tirupahi
Rao who is one of the attesting witness of the will and he is son-in-law of 20 late S.Raja Lingam. Even DW3 Tirupathi Rao says that he is a witness to the will deed, dated; 13.06.1994 and is son-in-law of late S.Raja Lingam. It is pertinent to note that none of these Dws 1 to 3 has spoken about the health and mental condition of late S.Raja Lingam on the date of alleged execution of exhibit B1. On the other hand, these witnesses have clearly stated that at first, both the attestors have signed on the will and then lastly the executant of the will late S.Raja Lingam has signed on it. The learned counsel for the plaintiff has contended that the above practice of the signing by the attestors at first and then lastly by the executant is unheard in the eye of law and infact, it is against tot he general practice that at first instance the executant must sign and it should be witnessed by the attestors. In this regard, DW1 have stated in his cross examination that his father was suffered with BP and sugar since about 1990 and about 15 days prior to his death, he went into coma and died. He was not present at the time of execution of exhibit B1. It was executed at their house and it was typed outside. His father was not well at the time of execution of exhibit B1. But curiously, DW3 who is son- in-law of Raja Lingam allegedly the executant of exhibit B1 stated that at he time of execution of exhibit B1, late S.Raja Lingam was well. Even then,
DW2 stated that he does not know where Exhibit B1 was drafted. DW3
Tirupathi Rao says that he does not know where exhibit B1 was drafted and typed, but he does not know why exhibit B1 was executed by late S.Raja
Lingam.
22. In this case,the contention of the plaintiff is that this exhibit B1 will is a fabricated one and that it is created only to strengthen and utilise the unregistered relinquishment deed executed by plaintiff. The entire exhibit B1 will speaks of the settlement of the share of the plaintiff by late S.Raja
Lingam. Admittedly, when late S.Raja Lingam was not well during he days of exhibit B1, had there been intention of late S.Raja Lingam to settle his property through a will, he would have taken care of or atleast the defendants 1 to 4, who were present at the time of its execution, the 21 presence of doctor and so also to certify on such will that the executant is in conscious and coherent stage to execute will. This exhibit B1 will is an unregistered one. Moreover, it is not pressed into service for nearly years
before any government department on the demise of the late S.Raja
Lingam. These are the strongest circumstances which would create doubt about the genuineness of the will and its execution by late S.Raja Lingam.
•
23. In this case, the plaintiff has taken steps to prove the signature of the executant on exhibit B1 by late S.Raja Lingam as forged by filing an application u/s 45 of the Indian Evidence Act and accordingly, exhibit A17 the admitted signature of late S.Raja Lingam on the sale deed under exhibit A17 and exhibit B1 to the Director, Hand writing expert, FSL Red Hills , DGP
Complex, Lakdikapool. But, when it was returned, the thumb impression register containing signatures of late S.Raja Lingam on document.no.
8208/93 registered on 19.11.1993 was forwarded to the FSL but returned by
APSFSL stating that to send original in place of photostat copies along with extensive admitted signatures written in the normal course of business for the purpose of comparison and opinion. But subsequently, no pursuation of the parties and matter is pending as it is. Surprisingly, the D1 who is wife of late S.Raja Lingam and alleged executant of exhibit B1 failed to enter into the witness box to say atleast a single sentence that this exhibit B1 was execute by her husband late S.Raja Lingam. As such, the defendants failed to prove the execution of the will exhibit B1 by late Raja Lingam. Hence, this issue “Whether the will dated:13.06.1994 is true, valid and acted upon?” is answered negatively against the defendants.
24. ISSUE.No.4.
Whether the plaintiff is entitled to a decree for partition of plaint schedule A to L properties into 5 equal share by metes and bounds and for allotment of one such share to the plaintiff?
The defendants are not disputing the claim of plaintiff that she is representing 1/5th share holder through her husband in respect of the 22 schedule property. The finding of this court on issue.No.1 that all the suit schedule properties except B schedule property are available for partition. As those properties were acquired in case of A schedule property, the Raj
Lingam himself and the C2 which he purchased in the name of D1 and on demise of late S.Raja Lingam, this property that stands I the name of D1 shall be taken as family property and that the other properties that stands in the names of D3 and 4 were acquired out of the joint family nucleus and as the defendants failed to prove its case that the plaintiff has relinquished her interest in the schedule property under a settlement with her father-in-l-law and so also the execution of will by late S.Raja Lingam in favour of defendants, then it should be a non testimentary succession in respect of schedule property, thereby, the plaintiff is entitled to claim 1/5th share in these properties. The plaintiff categorically stated in her evidence that the defendants necked out her from their home in the year 1998 on which she went to he parents house for the reason that she demanded her share in the schedule property. And subsequently, she has not made any demand for partition but in the re-examination, for the first time, pw1 says that in the same year of 1998, she again joined defendants and stayed there uptill 2005 till she once again necked out by the defendants. Under these circumstances, it is unacceptable of the evidence of PW1 in the court that she stayed with the defendants uptill the year 2005. It means, from the year 1998 onwards, the plaintiff is residing with her parents. Of-course, that does not prevent her from claiming share in the schedule property being already vested on the demises of her husband and that too when the defendant failed to prove the relinquishment of share in the schedule property by the plaintiff. However, as seen from the evidence, the defendants are not only in physical possession but also enjoying the schedule properties by let out to 3rd parties, as such, the plaintiff cannot claim a constructive possession over the schedule properties on which, payment of fixed court fee of Rs.200/-. So, the plaintiff is entitled to a decree for partition of plaint A and C to L schedule 23 properties and to 5 equal shares by metes ad bounds and allotment of one such share to her but only on payment of the court fee u/s 24 ______of .
hence, this issue “Whether the plaintiff is entitled to a decree for partition of plaint schedule A to L properties into 5 equal share by metes and bounds and for allotment of one such share to the plaintiff?” is answered affirmatively in favour of the plaintiff.
25.ISSUE.NO.5:
To what relief?
Under issue.No.1, as the out cum on all the issues 1 to 4 is that the suit is liable to be preliminarily decreed partly in respect of A, C to L schedule properties and partly to be dismissed in respect of B schedule property.
26. In the result, the suit is preliminarily decreed, in part, with costs, that the suit schedule A, C to L properties shall be divided into 5 equal shares and allot of one such share to plaintiff only on payment of court fee under section 34(1) of APCF & SV Act. The physical division of suit property by metes and bounds shall be made by filing a separate petition to pass final decree by appointing Commissioner.
The suit is dismissed, in part, in respect of the suit B schedule property.
The plaintiff is at liberty to file separate application for determination of mesne profits.
Typed to my dictation, corrected and pronounced by me in the open Court, on this the 25th day of March, 2013.
I ADDITIONAL DISTRICT JUDGE
RANGA REDDY DISTRICT.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED.
For Plaintiff.For Defendant.
PW1S.Padmaja.DW1. S.Manoj.
24
PW2 K.Sriram.DW2. Md.Nazeeruddin. PW3P.Sudhakar.DW3. Tirupathi Rao.
EXHIBITS MARKED
For Plaintiffs:
Exhibit A1 is the original marriage card. Exhibit A2 is the miscellaneous receipt, dt:19.10.2005. Exhibits A3 to A6 are the original Encumbrance Certificates. Exhibits A7 to A12 are the pahanie for the years 1999-2000, 1985-86, 1997- 98,1998-99 and 1980-81. Exhibit A13is the tax receipt. Exhibit A14 is the CC of sale deed, dt:03.10.2001. Exhibit A15is the CC of sale deed, dt:21.01.2002. Exhibit A16 is the CC of agreement of sale cum GPA. Exhibit A17is the CC of sale deed, dt:10.11.1993.
For Defendants:
Exhibit B1is the original will deed, dt:13.06.1994. Exhibit B2is the CC of sale deed, dt:13.03.1997. Exhibit B3is the CC of sale deed, dt:13.03.1997. Exhibit B4is the CC of sale deed, dt:31.03.2000. Exhibit B5is the CC of sale deed, dt:31.03.2000. Exhibit B6is the original property tax bill. Exhibit B7is the property certificate, dt:18.03.08 issued by G.P Medchal. Exhibit B8is the property certificate for H.NO.9-254, dt:18.03.08. Exhibit B9is the CC of sale deed, dt:21.01.2002. Exhibit B10is the CC of agreement of sale-cum-GPA,dt:20.09.04. Exhibit B11is the CC of sale deed, dt:29.06.2005. Exhibits B12 to B14 are the CC of pahanie for 1976-77. Exhibits B15 to B17 are the CC of pahanies for the years 1979-80. Exhibits B18 to B23 are the CC of pahanies for the years 1985-86.
I ADDITIONAL DISTRICT JUDGE
RANGA REDDY DISTRICT.