1 OS 117/2008
IV ADJ, VSP.
IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE: VISAKHAPATNAM.
Present: Sri Nandikonda Narsing Rao, B.Com., L.L.B., IV Additional District Judge, Visakhapatnam.
Monday, this the 4th day of March, 2013.
O.S.No.117/2008
Between:
Seerapu Sri Devi, W/o Hari Krishna Reddy, Hindu, aged 35 years, housewife, resident of D.No. 43-19-25, Dondaparthy, Visakhapatnam-16.
... Plaintiff
And
Dalli Srinivasa Reddy, S/o late Sanyasi Reddy, Hindu, aged about 37 years, employee in Railways, resident of L/52, Unit No.11, New Settlement, B-1, Near Water Tank, Kargapur, Midnapur District, West Bengal.
...Defendant
This suit is coming on 02.01.2013 for final hearing before me in the presence of Sri K. Dakshina Murthy, Advocate for the plaintiff and Sri.
N. Kalidas Reddy, Advocate for the defendant and the matter stood over for consideration till this day, the court made the following:
J U D G M E N T
1.This is a suit filed by the plaintiff seeking the relief of preliminary decree by partitioning the suit schedule property into two equal shares and allot one share to the plaintiff and put the plaintiff in possession of the same.
2.The averments made in the plaint in brief are as follows:
The mother of the plaintiff purchased the suit schedule property in the year 1984 out of her Sthri Dhana Property. The defendant is her own brother who is elder than her and that they both were born to Sri. Dalli
Sanyasi Reddy and Smt. Ganga Bai. The father of the plaintiff and the 2 OS 117/2008
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defendant worked in East Coast Railways, Khargpur, West Bengal State and his entire service and after his retirement remained in Khargpur only to till the date of death of both of the parents of the plaintiff. During the lifetime of her father, he acquired a property at Resapuvanipalem, Visakhapatnam.
The mother of the plaintiff purchased the suit schedule property a vacant land to an extent of 600 square yards in plot Nos 23 & 24 each consisting 300 square yards in the year 1984 from one Chadalawada Veerabhadra Rao under document No.5181/1984 dated 25.04.1984 out of her stridhana property with absolute rights. By that time both the plaintiff and defendant were minors. In the year 1999 the plaintiff's marriage was performed with one Hari Krishna Reddy of Visakhapatnam and at the time of marriage, the mother of the plaintiff and defendant promised her to give plot No. 23 of the suit schedule property which is an extent of 300 square yards by way of gift towards pasupu kunkuma. The said fact is known to everyone including the defendant, the promise of giving gift to the plaintiff could not materialized subsequent to the marriage, due to some technical reason as the registering authorities did not register the lands in that particular locality due to some technical problems with Sri Simhachalam
Devasthanam. It is further submitted that Dalli Sanyasi Reddy, father of the plaintiff and the defendant sold one property of Resapuvanipalem which he acquired through his ancestors and the entire sale proceeds have been given to defendant exclusively and for which the plaintiff never objected as she is being given a plot of 300 square yards by her mother. It is further submitted that in the year 2005 mother of the plaintiff and the defendant
Dalli Ganga Bai died intestate by leaving the plaintiff and defendant and her husband as her class I legal heirs. It is further submitted that in the year 2006, the father of the plaintiff and the defendant Dalli Sanyasi Reddy died 3 OS 117/2008
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intestate leaving behind his two children i.e., the plaintiff and the defendant as his class I legal heirs. The plaintiff and defendant have became absolute owners of their mother's stridhana property and the plaintiff further submitted that the plaintiff was expecting that her brother would partition the property and will give it to the plaintiff but the said fact has became unfulfilled desire of their mother during her lifetime. The plaintiff requested defendant to partition the suit schedule property into two equal shares by allotting plot No. 23 to her, the defendant postponing the issue on one pretext or the other by linking the issue to Simhachalam Devastanam.
4.It is further submitted that the plaintiff and the defendant are in joint possession and enjoyment of the rights. It is further submitted that the defendant developed an evil intention to grab the share of the plaintiff as such the plaintiff was forced to issued a registered lawyer's notice to the defendant on 20.01.2008 thereby demanded him to partition the the suit schedule property into two equal shares by clear metes and bound and for which the defendant has sent a reply dated 20.02.2008 with all fictitious, untenable allegations. It is further submitted that the plaintiff is entitled for the partition being the class I heir of the deceased mother and the father.
5.The defendant has filed written statement denying all the allegations of the plaintiff made in the plaint and further it is admitted by the defendant that during the lifetime of their father, the father of the plaintiff and the defendant acquired a property at Resapuvanipalem,
Visakhapatnam but denied that the mother of the plaintiff purchased the suit schedule property for an extent of 600 square yards as contended by the plaintiff. It is further submitted by the defendant that the father of the plaintiff and the defendant purchased the property with his own earnings in the name of his wife and that it is a benami transaction. It is further denied 4 OS 117/2008
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by the defendant that the mother of the plaintiff and the defendant promised the plaintiff to give plot no. 23 of suit schedule property by way of gift towards pasupu kunkuma. It is also further submitted that the parents of the plaintiff and the defendant has given Rs. 2 lakhs towards dowry, 75
Tulas Gold, 200 Tulas of Silver items and other sari samans to the plaintiff for a worth of Rs.75,000/- at the time of marriage and 5 tulas gold items to husband of the plaintiff. It is further denied that the father of the plaintiff and the defendant sold one property situated at Resapuvanipalem which was acquired from his ancestors and the entire sale consideration have been given to the defendant exclusively. It is further submitted during the lifetime of the father of the both plaintiff and the defendant he has sold the property and paid the ¾ sale consideration to the plaintiff as she is not willing to sign on the said sale deed and ¼ sale consideration retained by their father for his necessities and suppressing the said fact she filed the suit. Further the defendant submitted that at no point of time there was any promise made by the mother of the plaintiff and the defendant to give her any plot as alleged. It is further submitted that the mother of the plaintiff died in the year of 2005 and it is true and correct she died by leaving them as class I legal heirs and further from the death of their mother, both of them are in joint possession and enjoyment of the property was denied by the defendant.
6.It is further submitted that the mother of the plaintiff and the defendant during her lifetime on 20.07.2005 has executed a Will bequeathing the suit schedule property to her husband Dalli Sanaysi Reddy with absolute rights and after her demise subsequently the property was enjoyed by her husband till his death and during his lifetime he executed a registered Will 116/BK/06 dated 01.09.2006 bequeathing all his properties 5 OS 117/2008
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to the defendant including suit schedule property. Subsequently he died in the year 2007 and after his demise the property fell on the defendant with absolute rights. As per the Will executed by his father, since then he has been in possession and enjoyment of the same. Further he submitted that he and plaintiff never enjoyed property alleged by her. He is further denied that the petitioner is not entitled for any share in the property. It is further denied that there was no demand made by the plaintiff as to the partition and it is further submitted that the issuance of the notice and the reply was admitted and further submitted that the plaintiff is not entitled to any share in the property as mentioned above and further he has denied with the plaintiff as co sharer of the property. As per Benami Prohibition Act, husband can purchase the property in the name of his wife and the said property belongs to the husband only. It is further prayed that the suit may be dismissed.
7.Basing on the pleadings in the written statement, the plaintiff has filed rejoinder to the written statement filed by the defendant wherein the plaintiff has denied the contentions raised by the defendant in the written statement and further she also denied the allegations that the father of the plaintiff and the defendant has given the ¾ of sale consideration to the plaintiff as she is not willing to sign on the said sale deed and ¼ sale consideration retained by their father for his necessities. It is further denied the execution of the Will by the mother of the plaintiff in favour of Dalli
Sanyasi Reddy with absolute rights and also further denied the execution of registered Will bequeathed all the properties in favour of the defendant by the father of the plaintiff and the defendant.
8.Basing on the pleadings in the plaint and the written statement the following issues were framed.
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1. Whether the mother of the plaintiff and the defendant purchased the suit schedule property?
2. Whether the plaintiff is in possession and enjoyment of the suit schedule property?
3. Whether the mother of the plaintiff and the defendant validly executed Will dated 20.07.2005 in favour of her husband?
4. Whether the father of the plaintiff and defendant validly executed registered Will dated 01.09.2006 in favour of the defendant?
5. Whether the plaintiff is entitled to partition of the plaint schedule property? If so, to what share? Whether the plaintiff is entitled to be put in separate possession and enjoyment of the same?
6. Whether the Court Fees paid is correct?
7. To what relief?
Subsequently after filing of the rejoinder, the following issue was also framed on 30.07.2009.
8. Whether the plaint schedule property is benami property?
9.During the course of trial, on behalf of plaintiff, the plaintiff examined herself as PW.1 and also examined one S. Triveni as PW.2 who is said to the plaintiff's cousin and Bora Lakshmi as PW.3 who is said to be mediator and
Ex.A1 to A3 were marked. Ex. A1 is the sale deed dated 25.04.1984. Ex.A2 is the legal notice issued by the plaintiff to the defendant dated 20.01.2008.
Ex.A3 is the reply notice dated 20.02.2008. On behalf of the defendant the defendant was examined as DW.1 and one Sri. G. Prasad Reddy who is said to be the father-in-law of the defendant and attestor in Ex.B1 was examined as DW.2 and one Bora Anand Reddy who was examined in chief as DW.3 and later on his evidence was eschiewed and one P. Ramesh Prasad was 7 OS 117/2008
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examined as DW.4 and one P. Ravi Kumar was examined as DW.5 and Ex.
B1 and B2 are marked. Ex.B1 is the Will executed by Dalli Ganga Bai, mother of the plaintiff and the defendant in favour of her husband on 20.07.2005. Ex.B2 is the Will executed by Dalli Sanyasi Reddy in favour of the defendant dated 01.09.2006.
10.Heard arguments of the plaintiff and the defendant. The Counsel for the plaintiff has submitted the written arguments and also relied upon the
Judgment of Hon'ble Supreme Court cited in 1996 4 SCC 490 and also submitted the decision of our Hon'ble Supreme Court in 2000 (4) ALT 301 digestive notes. On behalf of the defendant the defendant has made oral submissions.
ISSUE NOS. 1 & 8 :-
1. Whether the mother of the plaintiff and the defendant purchased the suit schedule property?
8. Whether the plaint schedule property is benami property?
It isseen from the record that the relationship between the plaintiff and the defendant that they are brother and sister is not denied and there is no dispute that the plaintiff and the defendant are the children of Dalli
Sanyasi Reddy and Dalli Ganga Bai which is also not in dispute that Smt.
Dalli Gangabai was the owner of the suit schedule property. Now dispute under this issue is that property which is standing in the name of the mother of the plaintiff and the defendant as Benami property purchased by the father of the plaintiff and the defendant out of his earnings and that whether the property is purchased by the mother of the plaintiff and the defendant out of her sthridhana. The law as to ownership is that unless the contrary is proved it is deemed that the property which stands in the name of a person who purchased shall be deemed to have been purchased out of 8 OS 117/2008
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his own earnings unless contrary is proved. It is seen from the evidence of
PW.1 that her contention was that her mother during her lifetime has purchased 2 plots consisting of 300 square yards each in the year 1984 at
Naidu Thota with her sthridhana amount.
11.Now it has to be seen whether the property purchased by the mother of the plaintiff and the defendant is benami transaction or not? It is seen from the Ex.A1 that the property stands in the name of the mother of the parties hitherto. So the issue of benami transaction as raised by the defendant herein stating that the said property was purchased by the father of the parties hitherto out of his retirement benefits. So here the law upholds that a person who asserts the fact, the burden is also lies upon the person who asserts the same and to prove the same. In view of the same on perusal of section 3 of Benami Transaction (prohibition) Act' 1988 which is also held to be on perusal of section 3 of Benami Transaction (prohibition)
Act' 1988 “ specifically says that no person shall enter into any benami transaction
2) The Act specifies that nothing in sub section (1) shall apply to the purchase of the property by any person in the name of his wife or his unmarried daughter and it shall be presumed unless the contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter.
3) Section 3 (3) of the Act says that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
4) Not withstanding contained in the code of criminal procedure (1973 (2) of 1974) an offence under section 3 of the Act shall be non cognizable and bailable.
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12.Initially it has to be seen that whether the sale consideration has been provided or supplied by the purchaser or the husband in the name of his wife for purchase of the said property. The burden of proving benami transaction is on the person who pleads it benami. If the person fails to bring about the evidence to prove the benami nature of the transaction the provisions of the Act was held to be not attracted. There is no transaction that the property held in the name of his wife with his earnings. Now let us see the pleadings and the evidence as to the said Benami transaction, it is the contention of the plaintiff that it is self acquired property of the mother of the plaintiff and the defendant and she purchased out of her sthri-dhana whereas the specific contention raised by the defendant that the father of the parties hitherto purchased the said property with his own earnings in the name of his wife and that the mother of both the plaintiff and the defendant had no source of income to purchase the property i.e., benami transaction. Now on perusal of the evidence placed by the plaintiff and the defendant no documentary evidence is placed on behalf of the defendant to substantiate his contention that the said property was purchased by the father of the plaintiff in the name of his wife i.e., the mother of the plaintiff and the defendant.
13.It is further seen that on perusal of the evidence in respect of the said transaction, the defendant has cross examined the plaintiff who is PW.1, nothing could be elicited from the cross examination of the PW.1 to substantiate his contention that the said transaction was a benami transaction. Even as per the evidence of DW.1 to 4, except the oral submissions as to the same nothing constructive evidence is made out to prove that the said transaction as a benami transaction. Even on perusal of the Will of the mother of the plaintiff and the defendant, it is seen that 10 OS 117/2008
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she has specifically stated in the said Will she purchased the property with her sthri dhana under the document No. 5181/1984 and that also on perusal of the Will said to have been executed by the father of the parties i.e., Ex.B2. No where it is stated in the said Will that the said property originally purchased by the mother of the parties hitherto out of funds provided by her husband. In view of the same, I hold that the defendant has failed to prove that the said transaction is a benami transaction and in the absence of any proper evidence laid by the defendant this court has no other option except to disbelieve that the schedule property was purchased by the father of the plaintiff in the name of his wife out of his own earnings and the defendant failed to prove the said contention as to the benami transaction.
14.Now coming to the aspect of the issue that whether the said property was purchased by the defendant out of her sthri dhana as held above by the plaintiff, she has to prove as to the same whether said property has purchased by the mother of the plaintiff and the defendant out of her sthri dhana as alleged by her in the plaint and that it is self acquired property of the mother of the plaintiff. On perusal of the record, the plaintiff has examined PW.1 to 3 and plaintiff failed to produce any document to show that it was purchased by her mother out of her sthridhana and also further no evidence is placed by the plaintiff to substantiate her contention.
15.In contrary the defendant has contended that the father of the defendant has purchased the property out of his own earnings in the name of his wife i.e., Smt. Ganga Bai. Now the burden of proving whether the mother of the plaintiff and defendant purchased the property out of her own earnings sthri-dhana lies upon the plaintiff to prove. On perusal of
Ex.B1 & B2 coupled with the evidence of DW.1 wherein DW.1 clearly stated 11 OS 117/2008
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that the aspect of purchasing of schedule property as benami in the name of his mother is not mentioned in Ex.B1 and it is clearly recited in Ex.B1 suit schedule property is self acquired property of the mother of the plaintiff and the defendant and so also it is clearly stated in Ex.B2 the Will purported to have executed by the father of the plaintiff and the defendant wherein he also stated that the suit schedule property is self acquired property of themotheroftheplaintiffandthedefendant (___________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ __________________________________________________________________) and it is also seen from Ex.B1 wherein it is also stated that the said property has purchased from her money under the document No.5181/1984 and coupled with the evidence of the DW.1 & 2 it clearly shows that the mother of the plaintiff and the defendant has purchased the said property out of her own earnings and not the benami transaction as contended by the defendant.
On perusal of the evidence of the PW.2 that the mother of the plaintiff used to do money lending business and she has gold and cash besides the money lending business. Even though she clearly denied the said aspect that her mother is not doing any money lending business but no such money lending business is proved before this court.
16.Even otherwise on perusal of the evidence and the material available on record, it clearly goes to show that the mother of the plaintiff and the defendant is the owner of the property and that she has purchased the said property out of her own earnings and nowhere in the said document it reveals that the said consideration was passed from the father of the plaintiff and the defendant. In view of the same, the contention of the 12 OS 117/2008
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defendant that the said property was purchased by the father of the plaintiff and the defendant with his own earnings in the name of their mother as a benami cannot be believed to be true. In view of the same, this court comes to conclusion that the said property is self acquired property of the mother of the plaintiff and the defendant and the plaintiff has discharged her burden by proving that the said property is purchased by the mother of the plaintiff out of her own earnings and defendant failed to discharge his burden to prove the same as benami transaction. For the above said reasons, I hold that the said points are answered in favour of the plaintiff against the defendant.
17.ISSUE NO.3: Whether the mother of the plaintiff and the
defendant validly executed Will dated 20.07.2005 in favour of her
husband?
Coming to the aspect of the Ex.B1 which is said to be the Will executed by the mother of the plaintiff and the defendant wherein it is drafted in English and said to have been signed by said testator and said to have been drafted by Ramesh Chandra Dandapathi, Advocate. Under the said Will mother of the plaintiff has contended that she is the owner of the property of the land measuring total 600 Sq.Yds in Plot Nos. 23 & 24 situated at 77/5, Naidu Thotha, property covered by document No. 5181/84 and under the said Will she has bequeathed the said property in the name of her husband i.e., Dalli Sanyasi Reddy S/o Late Narasimha Rao is absolutely and forever. The contention of the defendant is that the mother of the plaintiff and the defendant bequeathed the said property in favour of the father of the plaintiff and the defendant and inturn the father of the plaintiff and defendant bequeathed the said property along with the cash which is lying in the Bank in favour of the defendant herein under Ex.B2 and 13 OS 117/2008
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it is the case of the defendant that in view of the execution of the Ex.B1 in favour of the father of the plaintiff and the defendant in turn he executed
Ex.B2 in favour of the defendant by his father, the defendant claims to be the absolute and exclusive owner of the said property which is subject matter of present suit and thereby the said Will was not provided any of the properties to the plaintiff. The said Ex.B1 & B2 were denied by the plaintiff stating that the said Wills are created for the purpose of the present suit and that she denied the said Wills.
18.Now it has to be seen that whether the defendant has proved the execution of the said Wills. On perusal of Ex.B1 that the Will said to have been executed by the mother of the defendant and the plaintiff Smt. Dalli
Ganga Bai. To prove the execution of the said Will, the defendant examined himself as DW.1 and also he has examined DW.2 who is Geeru
Prasad Reddy who is the 1st attestor of the Ex.B1 and he has also examined
DW.4 wherein he has stated that Ex.B1 was drafted in the house of
Advocate in the evening on 20th July' 2005 at about 7.00 P.M. At the time of Ex.B1, the said DW.4, Prasada Reddy, Ganga Bai were present. At the time of execution of Will, the husband of Gangabai was not present there but he is alive. Gangabai called DW.4 and Prasad Reddy as she intended to execute the Will. Gangabai went to Advocate, from there she called DW.4 to the house of Advocate and the house of Advocate is at a distance of 3
Kms from his residence. The advocate who scribed the Will belongs to
Bengali. The said advocate do not know Telugu. Gangabai gave instructions to the Advocate in Hindi. The Advocate drafted the Will in
English and it is first Will executed by Gangabai. Prior to the Will, Gangabai did not approach the Advocate in any other legal matters. After attended the office, the Will was prepared. The other attestor of Ex.B1 is the father- 14 OS 117/2008
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in-law of the defendant. DW.4 got acquaintance with Prasad Reddy as they were staying in the same colony belongs to Railway Department. Gangabai died in November four months after execution of Will. He know English and he was recited in Ex.B1 Will that Gangabai purchased the property with her funds. The DW.2 who is said to be the father-in-law of the defendant is one of the attestor to the Ex.B1. DW.2 has stated that the deceased Gangabai who is the mother of the plaintiff and the defendant do not know English and he knows reading and writing of Telugu. He further stated that he read the entire contents of Ex.B1 and understood the contents. The word
Visakhapatnam is not mentioned in Ex.B1 Will. Gangabai and other persons and an Advocate were present at the time of preparation of Will. In Ex.B1 there is no mention that Will is executed for safe side.
19.To substantiate the contention of the defendant that the said property was bequeathed by her mother in favour of the father of the defendant and to prove the said Will Ex.B1, the defendant has relied upon the evidence of the attestors i.e., his father-in-law and DW.4 i.e., P. Ramesh
Prasad. On perusal of the Ex.B1, it is seen that no where in the said Will, it states that the said Ganga Bai who is the testator of the said Will understood the contents of the said Will and she has put her signature on the said Will and that in the absence of the said witnesses and it is also further on perusal of the said Will, the aspect of the witness declaring that after knowing the said contents of the will they have signed in presence of the each of the witness and also in presence of the testator. On seeing the evidence of DW.1 & 2 wherein they are clearly stated that the said
Gangabai does not know English and she only knows Telugu and the
Advocate who drafted the said Will does not know Telugu and that he belongs to Bengali and it is also further on perusal of the Ex.B1 there is no 15 OS 117/2008
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specific averment as to the fact that the mother of the plaintiff and the defendant was in sound disposing state of mind at the time of Ex.B1. On perusal of the said Ex.B1 it does not reflect the intention of the testatrix nor the said will is in compliance of. Even though the said document was produced before this court but on perusal of the evidence placed by the defendant and also on perusal of Ex.B1 this Court comes to opine that the said will is not proved beyond the suspicious circumstances as to the execution of the said will. For the foregoing reasons and in the absence of the required averments and necessary contents which the will should contain. The said will is said to have been brought in under the suspicious circumstances, the burden is on the defendant to prove the issue No.3 as he is claiming entire property of his own by virtue of Ex.B1 & B2 Wils.
20.It is the contention of the plaintiff that the said Ex.B1 & B2 are not genuine one as the defendant failed to establish them as beneficiary under it and it is further submitted by the Counsel for the plaintiff that Ex.B1 transaction is not fair as it is fabricated and concocted document and to support Ex.B2 Will and definitely, it is an after thought transaction created to escape and only to come out and cover up from lacunas and latches in
Ex.B2. Since the Ex.B1 & B2 did not take place so far as suit schedule properties are concerned, issue No.3 & 6 does not bind on the plaintiff it is further submitted that the definition of Will under section 2 (h) of the Indian
Succession Act'1925 “Will” means the legal declaration of the intention of a testator with respect to his/her property which he/she desires to be carried into effect after his/her death and further stated that the essential of a will it must be a legal declaration of the testator's intention and that declaration must be with respect to her property and lastly the desire to testator that the said declaration should be effected after her death and he is further 16 OS 117/2008
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contended that the burden to prove its genuineness and to explain satisfactorily the suspicious circumstances lies on the person who is benefited under the Will under section 68 of Evidence Act a direct or positive evidence regarding execution of the Will should be considered.
21. It is further contended by the Counsel for the plaintiff that there are suspicious circumstances the Court can see whether they are dispelled or not. The attestors examined to prove the Ex.B1 i.e., DW.2 is none other than the father-in-law of defendant and DW.3 is a known person to the defendant. DW.1 said that Ex.B1 was drafted at our house at Kharagpur and DW.3 said that Ex.B1 was drafted in the house of Advocate in the evening. Dw.2 said that defendant is his son-in-law. Testatrix of Ex.B1 do not know English. He further stated that he can write Will in Telugu if stated by Testatrix. The Counsel for the Defendant has further argued that suspicious circumstances under Ex.B1 and the non mentioning of Ex.B1 transaction in Ex.B2 Will are not proved independently. Hence Ex.B1 considered fabricated created by the defendant. And he further stated that the recitals of Ex.B2 and the non mentioning of Ex.B1 transaction in it are creating suspicious circumstances. As seen from the cross examination of
DW.1, DW.2, DW4 the court can draw a presumption that Ex.B1 can be drafted in Telugu even by the attestors, since the propounder do not know
English and the scribe do not know Telugu. As per the recitals of Ex.B1, testator D. Gangabai appointed her husband as executor of her Will. She has not mentioned her legal declaration of her intention. It is further argued that the B1 transaction took place as alleged by the defendant it shall be reflected in Ex.B2 with all particulars, how the father of the plaintiff and the defendant acquired the suit schedule property. Except the scribe 17 OS 117/2008
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of Ex.B2 no independent attestor was examined and the scribe is not the attestor of Ex.B2 and hence, his evidence cannot be considered.
22.He has also further relied upon the decision reported in 2000(4) P 3.1
DN (SC). In view the same, this court opines that the execution of the said will is not proved by the defendant. Pursuant to the same, the said will cannot be relied upon to show that the said property has been bequeathed by the mother of the plaintiff and the defendant in favour of the father of the plaintiff and the defendant. In view of the same, this court holds that the said will is not proved. In view of the same, the said will goes unproved.
This issue is answered in favour of the plaintiff and against the defendant.
23. Issue No.4:
4. Whether the father of the plaintiff and defendant validly
executed registered Will dated 01.09.2006 in favour of the
defendant?
In view of the findings and observations made in the present issue, I hold that the further issue as to the proof of the Ex.B2 by the defendant need not be answered as prima facie, the title of the attestor under Ex.B2, which is said to have been passed through the said will Ex.B1 and the disposing capacity of the testator under Ex.B2 which is said to be the father of the plaintiff and the defendant arouse out of the Ex.B1. In view of non proving of the Ex.B1 the question of passing of the title in favour of the father of the plaintiff and defendant does not arise. In the absence of the proper title in favour of the father of the plaintiff and the defendant, the father of the plaintiff and the defendant has no capacity to dispose the property or bequeath the property in favour of the defendant under the said registered will dated 01.09.2006. Even otherwise on perusal of the record, it is seen that to prove the said will the defendant has relied upon the 18 OS 117/2008
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evidence of the DW.1 himself and DW.5 who is said to be the scribe of the said Ex.B2. Except the DW.5, no other independent evidence and also no attestors as to the said will were examined by the defendant. In view of the foregoing reasons I hold that the said Will is not validly executed nor proved and that the said point is answered in favour of the plaintiff and against the defendant.
24.ISSUE NOS. 2,5, 6:
2. Whether the plaintiff is in possession and enjoyment of the suit schedule property?
5. Whether the plaintiff is entitled to partition of the plaint schedule property? If so, to what share? Whether the plaintiff
is entitled to be put in separate possession and enjoyment of
the same?
6. Whether the Court Fees paid is correct?
Now coming to the share of the plaintiff i.e., the issue Nos. 2,4,5. It is the contention of the plaintiff that the plaintiff being the sister of the defendant and being the daughter of Gangabai and Dalli Sanyasi Reddy who are parents of the plaintiff and defendant and in view of they being died intestate and that the plaintiff and defendant are class I legal heirs and it is also further contended that during the lifetime of their mother in 1984 she purchased the suit schedule property under a registered sale deed bearing No. 5181/1984 dated 25.04.1984 and that their parents showered their love and affection towards both the parties herein equally and at the time of plaintiff's marriage they promised to give one plot in the schedule property as her marriage gift towards pasupu kumkuma.
Subsequently during her life time, it could not materialized due to problem with Simhachalam Devastanam. After demise of their mother automatically 19 OS 117/2008
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the suit schedule property devolved to the plaintiff, defendant and their father equally. Their father died in the year 2007. Obviously the suit schedule property devolved to the plaintiff and defendant equally by way of succession.
25.It is further submitted that after the demise of parents, the plaintiff expected that her brother will partitioned the suit schedule property succeeded through their mother and thereby the plaintiff will get one plot (i.e., half share in the suit schedule property) but of no use. Finally she got issued a Ex.A2 legal notice on 20.01.2008 to the defendant and demanded for partition. For which, the defendant sent a Ex.A3 reply dated 20.02.2008 denying her right and thereby setting up an unregistered will Ex.B1 and registered Will Ex.B2 said to wherein the said property was bequeathed in favour of the defendant absolutely. The plaintiff has denied the said execution of the Will by their father and mother she has also further stated that she is in the joint possession of the suit schedule property. Hence the plaintiff filed the present suit for partition the suit schedule property. The defendant denied the right of the plaintiff on the ground that at the time of marriage the parents of both the plaintiff and the defendant have given
Rs.2,00,000/- towards dowry, 75 Tulas Gold, 200 Tulas of Silver items and other Sari Samans to the plaintiff for a worth of Rs.75,000/- at the time of marriage and 5 Tulas gold items to husband of the plaintiff. The defendant further contended that the father of the plaintiff has sold the ancestral property situated at Resapuvanipalem and that out of the said sale consideration the plaintiff was given Rs.2,00,000/- towards her share and as the plaintiff denied to sign in the said sale deed. Further the defendant has denied that the plaintiff is entitled for the share.
20 OS 117/2008
IV ADJ, VSP.
26.To substantiate her contention, she has examined herself as PW.1 and also examined PW.2 & 3 and she got marked Ex.A1 to A3. In the evidence of PW.1 she has denied the contention that her father never promised to give share in the suit schedule property here at any point of time and she was given presentations at the time of her marriage in the year 1999 when her marriage was performed. She further denied that her father gave any presentations and dowry at the time of her marriage. She has also denied the aspect of cash of Rs.2,00,000/-, 75 Tulas Gold and 200
Tulas Silver and Rs.75,000/- other articles were given to her and 5 Tulas gold was given to her husband at the time of her marriage. She also further denied that her father and mother did not give one plot out of suit schedule property to her as promised by her father asked her to sign in a sale deed with regard to the sale of Resapuvanipalem property and also to substantiate her contention she has examined PW.2 who is said to be the sister-in-law of the PW.1 i.,e. the plaintiff. She has stated that the at the time of alliance talks, her sister-in-law parents explained about their properties situated in and around Visakhapatnam. In the said discussion the mother of the plaintiff and defendant is having 2 house plots at
Vepagunta and her husband is having landed property at Duvvada and at
Resapuvanipalem, Visakhapatnam. She further stated that they expressed their desire to perform their daughter's marriage in a grand way. They further declared that plaintiff's mother will give a house plot to her daughter towards her pasupu kunkuma out of love and affection as she is their only daughter. She further stated that she came to know the said promise of plaintiff's mother in giving a house plot at Vepagunta has not materialized due to the legal problems with Simhachalam Devastanam.
21 OS 117/2008
IV ADJ, VSP.
27.She has also examined PW.3 one Bora Lakshmi who is a third party to the above proceedings. She has stated that at the time of betrothal talks the plaintiff's mother declared that she is having 2 house plots at Naidu
Thota, Vepagunta and one plot will be given to her daughter towards her pasupu Kunkuma. Further they declared that they will perform the marriage in a grand way as plaintiff is their only daughter. They performed the marriage as per their wish but they did not keep their promise till the plaintiff's mother death. After her death, in order to deceive the plaintiff, her brother acting iniquitously and betrayal. At the time of marriage talks the defendant very emotionally declared before the elders that, “what are the properties their father and mother have are all my sister's property and his sister is his life”. It is further stated that during her life time the mother of the plaintiff used to tell with every one that, due to the problem with
Simhachalam Devastanam they are not a position to keep up their promise at the time of marriage talks in giving the house plot to their daughter as registrations are not taking place.
28.On perusal of the cross examination by the Counsel for the defendant, except the contention of the defendant the plaintiff was being given Rs.2,00,000/- cash, 5 Tulas gold and other articles at the time of marriage it was denied by the plaintiff herein. No proper evidence could be elicited during PW.2 & 3. The Counsel for the plaintiff has contended that the defendant has failed to prove the Ex.B1 & B2 and that the suit schedule property is absolute property of mother and after her death their father was entitled and after demise of her father both the plaintiff and the defendant succeeded the suit schedule property with their joint ownership and enjoyment of the suit schedule property along with the defendant and after demise of their parents she is in joint possession along with her brother and 22 OS 117/2008
IV ADJ, VSP.
she is entitled for partition of the plaint schedule property and ½ share and also separate possession and enjoyment of the same.
29.The Counsel for the defendant has contended that the plaintiff was been provided all the requirements what she required at the time of her marriage and she was been provided 1/4th of the sale consideration of the sale proceeds which were received by her father at the time of sale of the property at Resapuvanipalem, and he further contended that the plaintiff is not entitled for any share as she claimed and the contention of the plaintiff is baseless and praying this court to dismiss the suit.
30.On perusal of the evidence of PW.1 to 3, it is seen that the PW.2 & 3 have consistently supported the contention of the plaintiff i.e., PW.1 that there are certain talks in between the parents of the plaintiff and in-laws of the plaintiff that plaintiff would be given half share that is one plot out of the suit schedule property. After the marriage and it is also consistently raised by the plaintiff that the said plot was not given as promised by the mother of the plaintiff during her life time as there were certain disputes between Simhachalam Devasthanam and the plot owners. Even otherwise, it is not the case of the defendant that the plaintiff does not come under the
Class I heir and she is not entitled to any share of the amount that she has received dowry and other articles were given to her and once it is admitted fact that the plaintiff being the daughter of the parents of the plaintiff and the defendant and sister of the defendant and that the mother being the absolute owner of the said property and having died intestate leaving behind the plaintiff and the defendant and the deceased father as her only legal heirs. Hence, subsequent to the death of the father of the plaintiff and defendant the defendant and plaintiff have became the only legal heirs of the deceased mother of the plaintiff and the defendant. Merely on the 23 OS 117/2008
IV ADJ, VSP.
ground that the plaintiff was been provided of dowry and cash and jewellery items at the time of marriage is not bar for the plaintiff to receive the property which she is legally entitled to from the parents being the class I heirs of the deceased mother of the plaintiff i.e., Dalli Gangabai. In view of the finding given by this court in issue Nos. 1,8,3,4 this court opines that the plaintiff is entitled for the share in the property as class I heir and that the defendant is bound to share the property along with the plaintiff and the plaintiff is also entitled to be put in to the possession of the same.
31. It is seen that the said property is being open plots comprising 600
Sq. Yards. Admittedly the mother of the plaintiff and the defendant being the owner of the said property during her lifetime she was in possession as such the plaintiff is also deemed to be in the possession of the said property. Hence, in view of the same, I hold that the plaintiff is in joint possession of the suit schedule property along with the defendant and as such the C.F., paid is proper and correct and these issues are answered in favour of the plaintiff and against the defendants.
32.ISSUE NO.7:
To what relief?
In the result, the suit is decreed with costs passing a preliminary decree by partitioning the plaint schedule property into two equal shares and thereby allotting one such share to the plaintiff along with the possession of the same. In the circumstances, both parties shall bear their own costs.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in open Court, this the 4th day of March, 2013.
IV Additional District Judge, Visakhapatnam.
24 OS 117/2008
IV ADJ, VSP.
APPENDIX OF EVIDENCE
No. of witnesses examined for:
PLAINTIFFS: DEFENDANTS:
P.W.1: S. SrideviD.W.1: Dalli Srinivasa Reddy P.W.2: S. TriveniD.W.2: Geeru Prasad Reddy P.W.3: Bora LakshmiD.W.3: Bora Anand Reddy D.W.4: P. Ramesh Prasad D.W.5: P. Ravi Kumar
No. of Exhibits marked for:
PLAINTIFFS:
EX.A1 :Certified copy of the registered sale deed dated 25.04.1984 purchased by the mother of the plaintiff and the defendant under document No.5181. Ex.A2 : Office copy of the Lawyers Notice dated 20.01.2008. Ex.A3 :Reply notice dated 20.02.2008 addressed to the defendant.
DEFENDANTS:
Ex.B1 : Original unregistered Will dated 20.07.2005. Ex.B2 : Original registered Will dated 01.09.2006.
IV Additional District Judge, Visakhapatnam.
25 OS 117/2008
IV ADJ, VSP.
IN THE COURT OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
VISAKHAPATNAM.
NOTICE
Please take notice that the O.S.No. 117/2008, which was reserved for
Judgment on 02.01.2013, Judgment pronounced today i,.e,. on 04.03.2013.
// By order //
Superintendent, IV ADJ Court, VSP. To : The Notice Board of this Court. Sri. K. Dakshina Murthy, Advocate for the Plaintiff. Sri. N. Kalidas Reddy, Advocate for the Defendant.
IN THE COURT OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
VISAKHAPATNAM.
NOTICE
Please take notice that the O.S.No. 117/2008, which was reserved for
Judgment on 02.01.2013, Judgment pronounced today i,.e,. on 04.03.2013.
// By order //
Superintendent, IV ADJ Court, VSP. To : The Notice Board of this Court. Sri. K. Dakshina Murthy, Advocate for the Plaintiff. Sri. N. Kalidas Reddy, Advocate for the Defendant.
26 OS 117/2008
IV ADJ, VSP.
04.03.2013
Notice affixed to the Notice board and served on both the Counsel for the
Plaintiff and the Defendant.
Judgment pronounced. (vide separate Judgment)
In the result, the suit is decreed with costs passing a preliminary decree by partitioning the plaint schedule property into two equal shares and thereby allotting one such share to the plaintiff along with the possession of the same. In the circumstances, both parties shall bear their own costs.
IV ADJ, VSP.