Sri P.Bhaskar Rao

1

.IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE,

MADANAPALLE

Present : Sri P. BHASKARA RAO Addl. Senior Civil Judge, Madanapalle.

Thursday the Twenty seventh (27th) day of April, 2017.

O.S. No. 73/1994

Between:

1. Thatti Gangul Reddy, (Died)

2. Thatti Chandra Reddy.

3. Thatti Reddy Sekhar Reddy,

4. Avula Prameelamma (The Plaintiffs 3 and 4 are added as per orders passed in I.A. No. 588 of 2012 dated 23-8-2012) … plaintiffs

AND

1. Thatti Pedda Uthama Reddy,

2. Thatti Appoji Reddy,

3. Thatti Subbi Reddy,

4. Thatti Sivamma,

5. Thatti Sidda Reddy,

6. Thatti Uthama Reddy,

7. Thatti Budda Reddy (died),

8. Thatti Reddeppa Reddy,

9. Thatti Nallappa Reddy (died), 10.Thatti Chinnappa Reddy, 11.Thatti Venkata Reddy (died), 12.Thatti Krishna Reddy.

2 13.Thatti Erukala Reddy (died), 14.Bodireddigari Nirmalamma, 15.Palakuri Anitha Reddy, 16.Kasireddi Syamalamma, 17.Moremreddigari Nagi Reddy.

18.Golden Foods Industries, represented by its Managing Director Sri Bingi Sreeramaiah, 19.Cherakuravaripalle Sujatha, 20.Thupalle Samireddy, 21.Machireddigari Subba Reddy, 22.Moore Vasundramma, 23.Bodreddi Dwarakanatha Reddy, 24.Thatti Venkatramana Reddy.

(D-24 added as per orders in I.A. No.320 of 1996 allowed on 12-2-1997).

25.Poreddi Pedda Erukalamma (died).

26.Poreddi Chinna Erukalamma (died).

(D-25 and D-26 are added as per orders in I.A. No. 1580 of 1994 allowed on 18-9-97).

27.Kuppala Akkulappa.

(D-27 is added as per orders in I.A. No. 298 of 2002 allowed on 20-11-1992).

28.Thatti Venkatramana Reddy, 29.Thatti Rajamma.

(D-28 and D-29 added as per L.Rs., of deceased late Thatti Budda Reddy as per orders in I.A. No. 471 of 2005 allowed on 20-6-2005).

30.Thatti Chinna Reddemma, 31.Thatti Siva Reddy, 32.Thatti Jayapal Reddy, 33.Vanisree.

3 (D-30 to D-33 are the L.Rs. of the deceased Thatti Venkata Reddy as per orders in I.A. No. 644 of 2005 allowed on 28- 7-2005).

34.Thatti Lakshmamma, 35.Thatti Venkatramana Reddy, 36.Thatti Obul Reddy, 37.Thatti Siva Reddy, 38.M. Venkatalakshmamma, 39.Siddala Krishna Veni, 40.Avula Rajamma, 41.Siddala Syamalamma.

(D-34 to D-41 are the L.Rs., of deceased L.Rs., of Erukala Reddy, as per orders in I.A. No. 643 of 2005 allowed on 26- 7-2005).

42.Thatti Achamma, 43.Thatti Sreenivasulu Reddy, 44.Thatti Ramachandra Reddy, 45.Thatti Mohan Reddy, 46.Siddala Venkatalakshmamma, 47.Siddala Ramanamma.

(D-42 to D-47 are the L.Rs., of deceased Thatti Nallappa Reddy as per orders in I.A.No.1045 of 2004 allowed on 8-4- 2005).

48.Thatti Sreenivasulu Reddy, 49.Padmavathamma, 50.Pushpavathi @ Pushapamma.

(D-48 to D-50 are added as per orders in I.A. No. 107 of 2006 dated 23-10-2006).

51.Poreddy Chinna Yella Reddy.

52.K. Parvathamma.

4 (D-51 and D-52 are added as per orders in I.A. No.474 of 2006 dated 23-10-2006).

53. Avula Balanagireddigari Venkatramana Reddy.

(D-53 is added as per orders in I.A. No.546 of 2008 dated 11-9-2008).

54. Avula Venkataramana Reddy

55. Avula Sreenivasulu Reddy

56. Avula Bhaskar Reddy

57. Thatti Lalithamma

58. Avula Rami Reddy (Died) (D-54 to 58 are added as per orders in I.A.No.632 of 2012,

dated 14-08-2015).

(The mother of D-54 to 58 filed I.A.296/2013 she died during pendency of I.A. and her L.Rs. are impleaded as parties to the petition in I.A.No.634/2012) (D-54 to 57 are recognized as LRs. of deceased D- 58 as per orders in I.A.No.213 of 2016, dated 08-03-2016).

59. Gangasani Devendra Reddy (D-59 is added as per orders in I.A. No.634 of 2012, dated 14-08-2015).

60. Nimmanapalle Irfan Khan (D-60 is added as per orders in I.A. No.635 of 2012, dated 14-08-2015).

(D-59 & 60 are added Subject to result in C.R.P.No.5410/2015 & C.R.P.No.5571/2015 pending before

Hon'ble High Court of A.P.)

(D-54 to 60 are impleaded as they themselves filed petition U/o 1 Rule 10 C.P.C. to implead them as defendants to the suit)

61. Avula Balanagireddigari Venkata Reddy

62. Marasani Ramalakshmi

63. Avula Rukminamma 5

64. Avula Amala

65. Avula Aswini (D-61 to 65 are added as per orders in I.A.No.190 of 2017,

dated 13-03-2017).

… Defendants.

Counter claim filed by D53 along with written statement on 14.6.2010 without showing the description of parties names as the plaintiff and defendants.

Thatti Gangul Reddy and others Plaintiffs.

Vs.

Tatti Pedda Uthama Reddy and others Defendants.

This suit and counter claim filed by the D53 coming on this day (24.04.2017) before me for hearing in the presence of Sri Y. Samba Siva Reddy, Advocate for the Plaintiffs, and of Sri N.S.N.Prasad, Advocate for D5, 6,12,25 and D26; Sri

A.Sivarami Reddy, Advocate for D1,D2, D7 and D8; Sri

A.Phani, Advocate for D4 and D54 to 58, Sri.

A.Anjaneyulu, Advocate for Defendant No.13 14 and D19 ,

Sri K.Vasudeva Rao, Advocate for D15,M.Chaitanya Kumar,

Advocate for D18, Sri B.Madhava Reddy, Advocate for D16 and D17; Sri K.Manjunatha Reddy, Advocate for D28, D59 and 60, Sri K.Sridhar, Advocate for D61 to 65; Sri

B.Bhujanga Rao, Advocate for D19, Sri K.Jitendra, Advocate for D53, Sri B.Amaranatha Reddy, Advocate for D51 and

D54, Sri N.Reedynagulu, Advocate for D27, and 6

Sri S.Sesha Chalapathy, Advocate for D.52, Sri

C.Vijayakumar Reddy, Advocate for D8, upon perusing the material on record, and having stood over for consideration till this day, this Court made the following:-

J U D G M E N T

This suit is filed by the plaintiffs to pass a preliminary decree for partition of plaintiffs 1/3rd share in the plaint A and B schedule for division of the same into

THREE equal shares and allot ONE such share to the plaintiffs taking into consideration good and bad soil of the land less Ac. 00.20 cents in item No. 10 and for an

Additional extent of Ac. 00.18 cents and item No. 13 of the

plaint A schedule and costs.

The Defendant No.53 filed written statement along with counter claim Order VIII Rule 6 (1A)

CPC to pass a decree in favour of Defendant No.53 and against the plaintiffs and other defendants.

2. The brief facts of the plaint averments are as follows:-

The plaintiffs submits that, Seetharami Reddy had a brother by name Appala Reddy. First plaintiff and the deceased father of the second plaintiff by name Bayya 7

Reddy are the sons of the Late. Seetharami Reddy. Appala

Reddy had no sons and had only two daughters namely

Pedda Erukulamma and Chinna Erukulamma. Appala Reddy and Seetharami Reddy were members of a Hindu joint family members and Appala Reddy was acted as manager of joint family. Appala Reddy died intestate in the year 1932 leaving behind him his wife Achamma and his two daughters. After death of Appala Reddy his share was devolved upon his sole surveying brother i.e., Seetharami

Reddy and his sons i.e., first plaintiff and his deceased brother Bayya Reddy.

Achamma who is the wife of Appala Reddy had only right of maintenance after death of her husband and she died in the year 1942. Her daughters have no share in the properties. The plaintiffs had filed a suit in O.S. No.

724/1980 on the file of 1st Additional District Munsif Court

Madanapalle for permanent injunction and the said suit was decreed. The daughters of late. Appala Reddy have no right over the plaint A and B schedule properties. The plaintiffs have acquired right and title in respect of 1/3rd share in plaint A and B schedule.

The suit properties are the ancestral properties of plaintiffs and Seetharami Reddy had 1/3rd share. The defendants No. 1 to 4 and one Venkatramana 8

Reddy had 1/3rd share and remaining 1/3rd share belong to ancestors of the defendants No. 5 to 13 and one Appi

Reddy. Venkatramana Reddy had sold away his share to the 2nd defendant Appoji Reddy. The defendants 1 to 4 have became entitled 1/3rd share. The share of Appi Reddy sold away to Erukala Reddy (D13). The defendants 5 to 13 have became entitled to remaining 1/3rd share. The defendant

No. 24 is not entitled for 1/12th share and he has sold away major portion of his share to the 2nd defendant and others.

The defendants No. 25 and 26 have no share in the suit properties. The aggrieved parties preferred appeal AS NO. 54/1993 against the decree and judgment passed in O.S. No. 724/1980. The said appeal was transferred to Sub Court Madanapalle and renumbered as A.S. No. 97/1998.

In the said appeal it was observed that the plaintiffs herein are the owners and they have got right and title to the share claimed by them in the suit properties.

After death of Appala Reddy his share had devolved upon his surveying members of the joint family i.e., Seetharami

Reddy and not devolved upon Appal Reddy’s Wife Achamma who is mother of D25 and D26. The judgment passed in

A.S. No. 97/1998 operates as resjudicata and defendant no.

25 and 26 cannot re-agitate the same. D25 and D26 are 9 not entitled for any share in the suit properties and they are not necessary parties to the suit. Defendants No. 48 to 50 have no right over the suit properties. The D51 and D52 have no right over the suit properties because deceased D6 herself had no right over the suit properties. Similarly D53 has no right over the suit properties.

The registered sale deed Dt: 24.04.1974 is not executed by Thatti Bayyamma in favour of her daughter

Salamma (Mother of D53) and same is forged and fabricated one. D4 is the daughter-in-law of Thatti

Bayyamma and she is in possession and enjoyment of share of Thatti Gangul Reddy.

First plaintiff Thatti Gangul Reddy died intestate on 16.12.2011 leaving behind him the plaintiffs no. 3 and 4 as his legal representatives. They had succeeded to the share of first plaintiff in the suit properties. The plaintiffs 3 and 4 are entitled to pass a decree along with second plaintiff for 1/3rd share in the suit properties, after excluding

Ac. 00.20 cents in item No. 10 and Ac. 00.18 cents in item

No. 13 of A schedule. D61 to D65 have no right over the suit properties. The plaint schedule properties are joint properties and they are not divided by metes and bounds.

D14 to D23 are the purchasers of some extents in A and B schedule properties as such they are necessary parties.

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The plaintiffs are entitled to 1/3rd share, D1 to D4 are entitled to 1/3rd share and D4 to D13 are entitled to 1/3rd share. The 1st plaintiff had purchased an extent Ac. 00.16 cents in item No. 13 in plaint A schedule.

Defendants No. 14 to 23 are the purchasers from

D1 to D13. The plaintiffs have demanded the defendants for partition on 01.06.1994 and they have not co-operated for partition of the same. The plaintiffs have filed rejoinder denying the claim of newly added defendants. The plaintiffs further submitted that they have purchased some extent of items in suit properties during pendency of the suit. Hence the suit is filed.

3. The 2nd defendant filed written statement denying the plaint averments except relationship of the parties. D2 submits that on 30.09.1980 and 08.04.1982 purchased the lands under two different sale deeds in A schedule in Sy. No. 47/2 an extent of Ac. 00.07 cents in Sy.

No. 77 an extent of Ac. 00.07, in Sy. No. 54 an extent Ac.

00.08 cents in Sy. No. 83 is Ac. 00.15 cents in Sy. No. 6-5 is Ac. 00.03 cents. IN B schedule Sy. No. 455 is Ac. 2.24 cents in Sy. No. 246 is Ac. 00.23 cents in Sy. No. 431/1 is

Ac. 00.50 cents in Sy. No. 434 is Ac. 00.50 cents from T.

Venkatramana Reddy D24 in respect of 1/15th share and also this defendant is entitled ancestral properties share 11 1/15th share and in total 1/18th share in the entire suit properties. Since the date of purchase he is in possession and enjoyment of the same. Some extent of the land acquired by the R & B department for formation of the road under Award No. 2 and 3 General 96 and 97 Dt:

12.08.1996. The defendant received the compensation amount under protest and referred the matter to civil court and same is pending. The defendant further submits that plaintiffs are not entitled to claim any relief in the above suit.

D4 have filed written statement and also

Additional written statement. The D4 denied the plaint

averments. He further submits that plaintiffs had never demanded the defendants for partition of the suit properties. The defendants are ready and willing for partition of the suit properties and defendant is entitled 1/12th share. The defendant is in joint possession of the same, after amended the Sy. No. 75 and substitute the 78 in item No. 14 and added in item No. 17 in Sy. No. 83/3 is

Ac. 00.65 cents. It further submits that Bayyamma and her daughter Salamma have no right in the properties as Thatti

Gangul Reddy died prior to 1938 i.e., Women’s right to the properties Act 1938. The defendant No.5 filed written statement along with schedule and also filed Additional 12 written statement. Adoption memo filed by D6, D12, D25 and D26 adopting the written statement of D5.

D25 and D26 have not filed any separate written statement. There was subdivision of the lands shown as item No. 7 to 13 and 17 of the suit properties in the year 1974 by the revenue officials as per the enjoyment of the co owners. The description of the survey numbers shown as item No.7 to 13 and 17 are not correct and survey numbers are not in existence. The plaintiffs have suppressed the subdivision of the lands. Pedda Erukulamma and Chinna

Erukulamma were entitle to and were in possession and enjoyment of the lands in Sy.No.6-5 Ac.1.03 cents, 6/6 Ac.

00.15 cents, 6/9 is Ac.2.10 cents, Sy. No. 7/14 is Ac.00.20 cents, 7/15 is Ac.00.10 cents, Sy.No.54/2A is Ac.00.14 cents, Sy. No. 663-1A, is Ac.00.08 cents, Sy. No.63/1R is

Ac.00.46 cents, Sy. No.80/7 is Ac.00.30 cents, Sy. No. 82/2 is Ac.00.25 cents and Ac00.20 cents and other properties.

The B schedule lands are divided and said lands are not joint. On 05.07.1977 the co owners have executed an agreement in respect of B schedule. As per the agreement they have been enjoying the same. The plaintiffs are not entitled to seek for the division of item No. 7 to 13 and 17.

The suit is bad for non joinder of Pedda Erukulamma and

Chinna Erukulamma, younger brother and sisters of second plaintiff and their mother Yellamma and co owners.

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The defendants No. 25 and 26 have preferred second appeal against the decree and judgment in A.S. No.

97/1998 which is still pending. The defendant No. 8 filed written statement denying the plaint averments. The defendant father is entitled to an extent 1/24th share in A and B schedule properties item and in item No. 13. The father of the defendant purchased an extent of Ac. 00.25 cents from one T. Seethanna and his sons Bayya Reddy under registered sale deed Dt: 14.07.1955. Venkata Reddy was in possession and enjoyment of the same. The defendant is entitled 1/24th share and in addition to that Ac.

00.25 cents in item No. 13 of A schedule. This defendant has no objection to divide the suit properties and to allot his share.

The defendant No. 14 filed written statement denying the plaint averments. She has purchased an extent Ac. 00.56 cents item No. 7 in Sy. No. 82/1 and in Sy.

No. 82/2 including the usage of the road under registered sale deed Dt: 09.03.1983. She never objected for partition of the same.

The defendant No. 15 filed written statement denying the plaint averments. The defendant is a bonafide purchaser of item No. 10 and 11. The 14 defendants have purchased Ac. 00.11 cents in Sy. No. 6-5-

A. The defendant is also purchased an extent Ac. 00.47 cents in S. No. 4-2D and Ac.00.20 cents in Sy. No.6-2 for

Rs. 6,200/- from Yellamma. The defendant purchased full extent Ac. 00.57 cents in S.No. 4-2B from Yellamma and her son Nallapa Reddy under registered sale deed Dt:

14.12.1979. The defendant also purchased Ac. 00.45 cents in S. No. 4-2C and another extent of Ac.00.25 cents in S.

No. 6-1. Thatti Erukala Reddy purchased under registered sale deed Dt: 14.12.1979. She has purchased an extent

Ac. 00.11 cents in S.No.6-5. They have purchased the property covered sale deed Dt: 15.12.1979 jointly. This defendant has been in possession and enjoyment of extent purchased by her. This defendant has purchased item No.

10 to 11 in A schedule. The same dividing in to house plots and it was approved by the Grama Panchayath

Basinikonda. The defendants have also a raised Zinc sheet roofed house for their residential purpose. She lost original sale deed as such not filed the original sale deed. The plaintiffs are not entitled to the reliefs as prayed for.

The defendant No. 16 and 17 filed written statement denying the plaint averments. The plaintiffs and her two daughters and D1 to D13 had succeeded the joint family properties for their respective share and divided some of the properties of the family through an agreement 15

Dt: 05.07.1977. In the said division the vendor of his

defendants have been allotted to Sy. No. 4/2E an extent Ac.

00.72 cents and in S. No. 6-3 is Ac. 00.34 cents. In S. No.

5/5B in Ac. 00.22 cents along with other properties. The defendants have purchased entire extents in survey number jointly through registered sale deed Dt: 14.12.1979, 15.12.1979 and 15.12.1979 respectively. The Revenue authorities have issued pass book and title deed to third defendants. These defendants have divided said properties through a registered partition deed. D16 have constructed a house in the property fell to her share and D17 kept his share of property as vacant site. This defendants prays the suit is liable to dismissed.

The defendant No. 19 filed written statement denying the plaint averments. The co-owners are enjoying their extent approximately to their shares and properties are not divided. This defendant has purchased in A schedule from D10 under registered sale deed Dt:

17.03.1997. This defendant also purchased B schedule from

D12 under registered sale deed Dt: 09.02.1989. This defendant has no objection for partition and separate possession of the same. The defendant No. 27 filed written statement denying the plaint averments. T. Sivamma is entitle to 1/12th share in suit properties. The said

Sivamma has sold the property in Sy. No. 78 paiki Ac.

16 00.10 cents and Sy. No. 80 paiki Ac. 00.13 cents in item

No. 16 of A schedule. On 20.06.1983 sale deeds executed in favour this defendant. This defendant is in possession and enjoyment of Ac. 00.13 cents in item No. 16 in A schedule Ac. 00.10 cents in Sy. No. 78/4 of Basinikonda

Village. This defendant is ready and willing to cooperate for amicable partition.

The defendant No.28 filed written statement denying the plaint averments. Thatti Sidda Reddy had purchased several suit properties in the said properties. The plaintiffs and other are claiming joint share. D5 and D6 are entitled for 1/8th share and D28 and D29 are entitled for other 1/8th share in the suit properties. The plaintiffs have not shown the share of each defendant in the suit lands. In item No.10

Makkam family are entitled Ac.00.17 cents and they are not shown as parties.

They have sold away Ac. 6.03 cents retaining Ac.00.17 cents to Thatti Sidda Reddy under registered sale deed.

Makamm Family members are necessary parties. This defendant is not a party in O.S.No.724/1980 and said judgment is not binding on this defendant. The plaintiffs are not in joint possession of the extents claimed by them.

The defendants pray the suit is liable to be dismissed. D27 17 filed Additional written statement denying the plaint averments. He has purchased the item No. 14 and 16 from

D4 and her daughters on 20.06.1983 and they have executed sale deed in favour of D27. This defendant is entitled Ac.00.10 cents in Sy. No. 78 and Ac.00.13 cents in

Sy.No.80 of Basinikonda Revenue Village. This defendants prays to pass a preliminary decree by allotting Ac.00.10 cents in Sy.No.78 and Ac.00.13 cents in Sy. No. 80 to this defendants.

The defendant No. 51 filed written statement denying the plaint averments. It is true that the defendants 48 to 50 have no right or title is any interest in the suit property. Pedda Erukulamma is entitled for half share in his father’s 1/6th share which is equal to 1/12th share. It is further submitted that D25 during her life time had executed a registered will in favour of D51 and infavour of her daughter Shankaramma in respect of the properties owned by her. The properties were divided into 2 schedule under will and A schedule properties were bequeathed to D51 and B schedule properties were bequeathed to her daughter Shankaramma. D48 to D50 are the LR’s of said Shankaramma. D51 alone is entitled 1/6th share as per the will executed by Pedda Erukulamma on 10.02.1976. There is no partition deed or sub division proceedings for the plaint schedule properties. There is no 18 necessary for the partition of the properties again and basing on the possession the revenue authorities sub divided the lands. There is no cause of action to file the suit. The plaintiffs ought to have filed suit for declaration.

The suit claim is barred by limitation. The suit is liable to be dismissed. The defendant No. 52 filed Additional written statement denying the plaint averments. Chinna

Erukulamma had executed a registered document Dt:

19.09.2003 in favour of K. Parvathamma she is entitled 1/3rd share and another 2/3rd share to her son Chinna Yella

Reddy. After death of Chinna Erukulamma came in to force and D52 is entitled to 1/3rd share. He is entitled 2/3rd share out of 1/3rd share of the suit properties. Both D51 and D52 are enjoying their shares separately. The suit is bad for non joinder of necessary parties. The defendant No. 53 filed written statement and counter claim on 14.06.2010 seeking partition of the Plaint A schedule property to allot share to the D53 as per the registered will Dt: 24.04.1974 and also filed Additional written statement. This defendants submits that plaintiff will get only 1/6th share and properties are divided into 6 share among six families.

This defendant not aware of the suit proceedings O.S. No.

724/1980 and A.S. No. 97/1998. The plaintiffs in collusion with the some of the defendants filed the suit. They have got knowledge registered will 24.04.1974. This defendant 19 further submits that Thatti Bayyamma out of love and affection executed a registered will 24.04.1974 in favour of her daughter Avula Balanagireddigari Salamma. The properties were devolved upon her son Avula

Balanagireddigari Venkatramana Reddy and he is in possession of the same. Defendant No. 61 to 65 are not necessary parties to the suit. This defendant prays to pass a preliminary decree in his favour and also to dismiss the suit.

The defendant No. 54 filed written statement filed denying the plaint averments. This defendant submits that the maternal grandfather Thatti Appi Reddy has gifted share in plaint B schedule properties out of love and affection to the mother this defendant Avula Achamma and her father has executed registered gift settlement deed in favour of this defendant’s mother Dt: 26.07.1961. The mother of the defendant is entitled 1/24th share in item No. 1,5,7,10,12 and 13, 1/36th share in item No. 3 and 4. 1/48th share in item No. 8,9,11,15,16 and 18, 1/96th share in item No. 17, 1/10th share in Sy. No. 64/1 and 1/5th share in Sy. No.

11/5. The mother of the defendant had been in joint possession and enjoyment of the same. The mother of the defendant has executed registered will in favour of D54 to

D57 bequeathing including suit properties. Suit is bad for non joinder of necessary parties. The defendants prays to 20 pass a decree in favour of this defendant and D55 to D57 in respect of his share.

The defendant No.59 and 60 filed written statement denying the plaint averments. D30 to D33 are the Legal representatives of D11. D40 to D47 are LR’s of

D9. On 28.04.2012 D10, 12, 30 to 33, 42 to 47 have sold 1/12th share in item No. 4,5,14 and 16 with an extent of

Ac. 00.44 cents. On 30.04.2012 this defendants have sold away 1/24th share in item No. 4, 5, 14 and 16 with an extent Ac. 00.22 cents in B schedule to D60. The defendants pray to pass a necessary orders in their favour in respect of written statement properties. D55 to D57 filed memo adopting the written statement of D54.

The defendant No. 61, 63 and 64 filed written statement and also filed adoption memo by D62 and D65 and denied the plaint averments. Thatti Venkatramana

Reddy died leaving behind his wife T. Sivamma D4 and two daughters Salamma given in marriage to Avula

Balanagireddigari Nagi Reddy and begotten three sons namely Venkatramana D53, Venkata Reddy, D61 and

Krishna Reddy died Ramalakshmi D62. The younger brother of D61 Krishna Reddy died leaving behind him his wife

Rukminamma D63 and two daughters Aswani and Amala

D64 and D65. The parents of the D61 and D62 died 21 instestate. This defendants are entitled 3/4th share and D53 is entitled 1/4th share in the suit properties as mentioned in the registered will got executed by Bayyamma in favour of

Salamma. This defendants co owners in the suit properties and they are not added in the present suit. The suit is bad for non joinder of necessary parties.

This defendants and his brothers and plaintiffs have been in joint possession of the same. This defendants prays to pass a preliminary decree in their favour as per the registered will Dt: 24.04.1974.

04. The court framed the following issues and

additional issues basing on the material available on record

and also counter claim filed by D53 for the purpose of trial.

1.Whether the plaintiffs are entitled for 1/3rd share in the plaint A and B schedule properties?

2.Whether the Pedda Yerukulamma and Chinna

Yerukulamma, the daughters of late Thatti Appala Reddy are entitled for 1/6th share in the suit properties?

3.Whether the lands shown as items 7 to 13 and 17 in the plaint A schedule are not joint and sub divided?

4.Whether the defendants 5 to 7 and others have perfected their right and title to the properties that are in their possession after sub division, by adverse possession?

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5.Whether the suit lands shown as items 1 to 6, 14 to 26 of the plaint A schedule and the lands described in the plaint

B schedule are not joint and are divided?

6.Whether there was division of some of the plaint schedule properties between the plaintiffs, the defendants 5 to 7 and other co-owners under an agreement (partition agreement) Dt: 05.07.1977 and in the said division the plaintiff, the defendants 5 to 7 and other defendants are allotted the items 2 and 4 of the plaint A schedule and

Pedda Yerukulamma and Chinna Yerukulamma were allotted items 1 and 3 of the plaint B schedule and items 5 of the plaint B schedule was allotted to the share of Thatti

Venkatramana Reddy, the husband of the 4th defendant and the Thatti Nagaraja?

7.Whether the suit is bad for non joinder of Pedda

Yerukulamma and Chinna Yerukulamma, their younger brother, sisters of the 2nd plaintiff and their mother and other co sharers whose names are mentioned in the written statement schedule?

8.Whether the plaintiffs Pedda Yerukulamma, Chinna

Yerukulamma and other co owners have sold items 10 and 11 of the plaint A schedule to Smt. P . Anitha Reddy, W/o

Venkatramana Reddy under registered sale deed Dt:

19.12.1979 and Smt. P. Anitha Reddy is in Possession of the same?

9.To what relief.

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Additional Issues framed on 31.01.2011.

1.Whether the finding in A.S. No. 97/1978 on the file of this court operates as Resjudicata?

2.Whether the D25 and D26 are debarred from re-agitating the same matter.

Additional Issues framed on 20.03.2017.

1.Whether the Thatti Bayyamma s/o T. Gangul Reddy has executed a registered will Dt: 24.04.1974 in respect of plaint A and B schedule properties?

2.Whether the mother of the defendants 61 to 65 is necessary parties to the suit?

3.Whether the suit is bad for non joinder of co owners?

4.Whether the defendants 61 to 65 are entitled to share in the suit property?

Additional issue Framed on 24.04.2017

1. Whether the D53 is entitled to pass a preliminary decree against the plaintiffs and other defendants basing on the registered will Dt:

24.04.1974?

5. During the course of trial on behalf of the plaintiffs PW1 to PW5 were examined and Ex. A1 to Ex. A17 24 were marked. On behalf of defendants DW1 to DW16 were examined and Ex. B1 to Ex. B42 were marked.

6. Heard the oral arguments on behalf of the plaintiffs and the defendants. The plaintiffs counsel and some of the defendants counsel filed written arguments.

Issues No. 1 to 8 and Additional Issues:

7. The first plaintiff has examined as PW1 and

Ex. A1 to Ex. A8 were marked. PW1 was cross examined in part and his evidence is incomplete due to death of PW1.

The 2nd plaintiff has examined as PW2 and marked Ex. A9 to

A14 were marked. Ex. B41 certified copy of sale deed Dt:

18.12.1979 is marked during the cross examination of PW2.

One Pujari Akkulappa has examined as PW3 to prove the joint status of the plaint schedule properties between the plaintiffs and some of the defendants. One T.

Venkataramana Reddy has examined as PW4 to prove that he sold away major portion of share to the 2nd defendant Thatti Appoji Reddy, Thatti Gangul Reddy, The deceased first plaintiff covered under Ex. B3 and Ex. B4 sale deeds. PW5 is namely Thatti Reddi Sekhar Reddy (3rd plaintiff) has examined as PW5 and marked Ex. A17 which is the original registered sale deed Dt: 14.05.1973 executed 25 by Avula Achamma in favour of his father Thatti Gangul

Reddy.

8. The second defendant has examined as DW1 and marked Ex. B3 is the certified copy of registered sale deed executed by T. Venkataramana Reddy (D24) in his favour. Ex. B4 is the certified copy of registered sale deed executed by T. Venkataramana Reddy (D24) Dt:

08.04.1982. Ex. B1 is the certified copy of sale deed Dt:

28.04.2012 and Ex. B2 certified copy of sale deed Dt:

30.04.2012 were marked during the cross examination of

PW2. The fourth defendant has examined as DW2. The fifth defendant is namely Thatti Sidda Reddy has examined as DW3 who is son in law of D25 through him marked

Ex. B5 is the original registered sale deed Dt: 20.10.1915 executed by Makam Chinna Venkata Swamy S/o Narayana

Swamy Setty in favour of Late. Thatti Sidda Reddy and Ex.

B6 is the certified copy of unregistered partition deed Dt:

05.07.1977 which is marked for limited purpose.

Defendant No. 19 is namely Cherakuravulavaripalle Sujatha has examined as DW4 and marked Ex. B7 is the certified copy of registered sale deed Dt: 09.02.1989 executed by the D12 in her favour. Ex. B8 is the certified copy of registered sale deed Dt: 17.03.1983 executed by D10 in her favour. The husband of the DW4 has examined as DW5 to support the case of DW4.

26

The defendant No. 54 is namely Avula Venkata

Ramana Reddy has examined as DW6 and marked B9 to Ex.

B13. One Muliniti Venkata Reddy has examined as DW7 to identify his signature as attestor in which containing on

Ex. B12 registered will Dt: 09.08.2012. The another attestor of Ex. B12 is namely Shaik Abdul Rahiman has examined as DW8. Defendant No. 27 is namely Kappala

Akkulappa has examined as DW9 and marked Ex. B17 is the registration copy of the sale deed Dt: 20.06.1983 executed by D4 and her daughters in favour of D27. Ex. B18 is the 1B Namuna obtained from Meeseva subject to objection.

Defendant No. 53 is namely Poreddi Chinna Yella Reddy examined as DW10 and marked Ex. B19 to Ex. B37 which are marked subject to objection. Defendant No. 59 is namely Gangasani Devendra Reddy has examined as DW11 and marked Ex. B38 is the certified Xerox copy of registered sale deed Dt: 28.04.2012 executed by defendant no. 10, 12, 30 to 33, and 42 to 47 in favour of DW1. Ex. B39 is the Pattadar Pass Book issued in his name. Defendant no.

60 is namely Nimmanapalle Irfan khan has examined as

DW12 and marked Ex. B40 is the Pattadar Pass Book issued in his name. Defendant 15 has filed Chief Affidavit but did not turn-up for cross examination.

27

Defendant No. 53 is namely Avula Balanagiri

Reddi Gari Venkataramana Reddy has examined as DW14 and marked Ex. B42 is the original will Dt: 24.04.1974 executed by T. Bayyamma in favour of his mother

Salamma. DW15 is the second attestor's son of Ex. B42 is namely Avula Jayasind Reddy to identify his father signature containing on the will. The defendant No. 61 has examined as DW16 who is the son in law of D4 and younger brother of D54 to D56.

9. The facts are not in dispute. The plaintiff

No.1 and the father of the plaintiff No.2 by name Bayya

Reddy are brothers being the sons of late Seetharami

Reddy. Seetharami Reddy had a brother by name Appala

Reddy. Appala Reddy had no sons and had only two daughters namely Pedda Erukulamma and Chinna

Erukulamma i.e., D25 and D26. Both Appala Reddy and

Seetharami Reddy had members of joint Hindu family members and Appala Reddy acted as a joint family manager. Admittedly Appala Reddy died in the year 1932 intestate and his wife Achamma died in the year 1942.

28

10. The dispute arose between the plaintiffs No.

1 and 2 and D25 and D26 with regard to plaint schedule properties. The plaintiffs No. 1 and 2 have filed a suit in

O.S. No. 724/1980 on the file of First Additional District

Munsif Madanapalle for permanent injunction against the defendants No. 25 and 26 not to interfere with their peaceful possession and enjoyment of plaint schedule properties. The said suit was decreed in favour of plaintiffs.

The aggrieved parties preferred appeal AS. No. 54/1993 on the file of Hon’ble II Additional District Judge, Madanapalle and same was transferred and numbered as AS.No.

97/1998 on the file of Sub Court Madanapalle. In the said appeal it was observed that the plaintiffs herein are the owners and they have got right and title to the share claimed by them in the suit properties and denied the contention of the D25 and D26.

11. In view of the said observation the plaintiffs

No. 1 and 2 herein have filed suit against defendants for partition of plaint A and B schedule properties situated at

Basinikonda Village and that B.K. Palle Village. During pendency of the suit first plaintiff died intestate on 16.12.2011 leaving behind him the plaintiffs 3 and 4 who are his son and daughter as his Legal Representatives.

The plaintiffs 3 and 4 have succeeded to the share of the 29 first plaintiff in the suit properties. Subsequently the defendants No. 24 to 65 were added as per the orders of the different Interlocutory Applications.

The relationship of the parties not in dispute.

The defendant no.2 is contended that there was no demand of partition by the plaintiffs. The plaintiffs have not issued legal notice prior to the filing of the suit. Defendant No. 2 had purchased the land by way of two registered sale deed

Dt: 30.09.1980 and 08.04.1982 in respect of 1/15th share

and originally the D2 is also entitled to his share and in total D2 is entitled 1/18th share. D2 in his written statement in para No. 5 admitted that the share of plaintiffs 1/3rd share in ancestral properties. Defendant No.4

Sivamma in her written statement claiming that she is entitled to 1/12th share in joint possession of the plaint schedule properties. She further contended that she is not a party in O.S. No. 724/1980 and that plaintiffs never demanded her for partition of the suit properties. She got it mentioned in the written statement she has no objection for partition of the plaint schedule properties.

12. Defendant No. 5 clearly admitted in the written statement stating that Appala Reddy died in the year 1932 leaving behind him his wife and two daughters 30 are namely Pedda Erukulamma and Chinna Erukulamma i.e., D25 and D26. D5 further contended that after death of Appala Reddy his wife Achamma succeeded and became entitled property as per law. Achamma was in possession of her husband share. He further admitted that Achamma died in the year 1942. She was enjoyed 1/6th share in the suit properties and after the death of Achamma the property had devolved upon D25 and D26 in respect of her 1/6th share, the same was subdivided in the revenue records in the year 1974 in respect of item No. 7 to 13 and

17. He further contended that D5 and D6 and D7 are entitled to 1/12th share and they are in possession and enjoyment of the same. They further contend that they have perfected their title over the item No. 7 to 13 and 17 and same was not in joint. On 05.07.1977 executed agreement between plaintiffs, defendants, Pedda

Erukulamma and Chinna Erukulamma have also got executed agreement in respect of B schedule property and other properties. As per the agreement they have sold away some extents by the plaintiffs and they are not entitled to seek for division of the item No. 7 to 13 and 17.

It further contended that plaintiffs are not entitled to 1/3rd share and suit is bad for non joinder of Pedda Erukulamma and Chinna Erukulamma and younger brother, sisters and mother of the second plaintiff. The defendant No. 5 got it 31 mentioned schedule properties in his written statement. D5 written statement was adopted by D6, D12, D25 and D26.

13. Defendant No. 8 is contending that D8 father is entitled to 1/24th share. The defendant No. 8 father had purchased item No. 13 in Sy. No. 63/1 with an extent Ac.

00.25 cents by way of registered sale deed Dt: 14.07.1955.

Defendant No. 8 clearly admitted that he has no objection for partition of the plaint schedule properties.

14. Defendant No. 14 in her written statement contended that she has purchased an extent of Ac. 00.56 cents in Sy. No. 7 and in Sy. No. 82/1 and in Sy. No. 82/2 with a right of passage under the registered sale deed Dt:

09.03.1983 and she has been in possession and enjoyment of the same. She further submits that she has no objection for partition of the plaint schedule property.

15. Defendant No. 15 submits that she has purchased the property an extent of Ac. 00.11 cents in Sy. No. 6/5A.

The defendant also purchased an extent Ac. 00.47 cents in

Sy. No. 4/2D and Ac. 00.20 cents in Sy. No. 6/2 under registered sale deed Dt: 14.02.1979. This defendant also purchased an extent Ac. 00.57 cents in Sy. No. 4/2B under 32 registered sale deed Dt: 14.12.1979. This defendant also purchased Ac. 00.45 cents in Sy. No. 4/2C and another extent of Ac. 00.25 cents in Sy. No. 6/1 from Thatti Erukala

Reddy under registered sale deed Dt: 14.12.1979.

16. The defendant No. 16 and 17 contended that they have purchased joint extent by way of registered sale deed

Dt: 14.12.1979, 15.12.1979 and 15.12.1979.

17. The defendant No. 19 submits that defendant No.

5 to 13 are entitled and they are in possession and enjoyment of 1/3rd share and she has no objection for partition of the suit property. She has purchased B schedule property from D12 under registered sale deed Dt:

09.02.1989 and also purchased from Defendant No. 10 by way of registered sale deed Dt: 17.03.1993.

18. The defendant No. 27 had no objection for partition of the same and also to separate the Ac.00.12 cents in item No. 16 of A schedule purchased by him from the suit property.

19. Defendant No. 28 submits that D5 and D6 are entitled to 1/8th share and defendant No. 28 and 29 are entitled to other 1/8th share in the suit properties. In item

No. 10 of Makam family are entitled to joint share and they 33 possessed Ac. 00.17 cents. They have not made as parties to the suit. This defendant is in separate possession of the said extent.

20. The defendant No. 51 filed the written statement.

As per section 14 of Hindu Succession Act D25 and D26 have become absolute owners of the suit property. The rights of the parties will be decided and the plaintiffs ought to have filed suit for declaration in respect of 1/6th share.

D25 and D26 are entitled to 1/6th share. D48 to D50 have no right over the suit property.

21. Defendant 52 submits that Chinna Erukulamma executed registered will Dt: 19.09.2003 in favour of K.

Parvathamma. She is entitled to 1/3rd share and another 2/3rd share to her son Chinna Yella Reddy (D51). D52 is entitled to 1/3rd share. Defendant No. 51 is the elder brother of said Parvathamma and he is entitled to 2/3rd share out of 1/3rd share. D51 and D52 are enjoying their respective shares.

22. Defendant No. 53 filed written statement and also counter claim under order 8 Rule 6(A) CPC. He contended that plaintiffs will get only 1/6th share. The properties shall be divided in to 6 shares and each family is entitled to 1/6th 34 share. On 24.04.1974 Thatti Bayyamma executed registered Will Dt: 24.04.1974 in favour of her daughters

Avula Balanagireddigari Salamma bequeathing her properties and after death of said Thatti Bayyamma the properties devolved upon Avula Balanagireddigari Salamma and after death of Salamma D53 succeeded to the said properties by virtue of will Dt: 24.04.1974. D53 prays to direct the plaintiffs and other defendants to cooperate for division and partition of A and B schedule properties.

23. Defendant No. 54 submits that the maternal grandfather Thatti Appi Reddy has gifted share in A schedule to the mother of the this defendant Avula

Achamma and her father has executed registered gift settlement deed in favour of this defendant’s mother in respect of A schedule. The mother of this defendant is entitled to 1/24th share in item No. 1,5, 7, 10, 12, 13, 1/36th share in item No. 3 and 4, 1/40th share in item No.

8,9,11,15,16,18, 1/96th share in item No. 17, item No.

1/10th share in Sy. No. 64/1 and 1/5th share in Sy. No. 11/5 of Basinikonda village by virtue of registered gift deed Dt:

26.07.1961. This defendant further submits that the grandfather of this defendant has executed gift settlement deed Dt: 26.07.1961 in respect of B schedule. His mother is entitled to 1/24th share in item No. 1,2,3,4, and 1/5th share 35 in item No. 5 of the plaint B schedule. Avula Achamma has executed Will Dt: 09.08.2012 in favour of D54 to D57.

24. Defendant No. 55 to D57 submits that on 30.04.2012 the defendants 54 to 58 and their mother late

Achamma have sold 1/24th share in item No. 4,5,14 and 16 with an extent of Ac. 00.22 cents of B schedule of the written statement.

25. Defendant No. 61 to D65 submits that the defendants are entitled 3/4th share and D53 is entitled to 1/4th share in the properties mentioned in the registered will got executed by Bayyamma in favour of Salamma.

26. Whether the plaintiffs are entitled to 1/3rd share in the plaint A and B schedule properties. Whether the D25 and D26 who are the daughters of late Thatti Appala Reddy are entitled to 1/6th share. Whether the suit properties are not joint and subdivided. Whether the suit is bad for non joinder of necessary parties. The learned defendant Nos.

5,6,12,25 and 26 counsel submitted that plaintiffs have not filed any document to claim their 1/3rd share in the plaint A and B schedule properties. The plaintiffs ought to have filed a suit for declaration and recovery of possession of their alleged share in the suit property. In a suit for permanent injunction the court ought not have observed that the 36 plaintiffs (Thatti Gangul Reddy and Thatti Chandra Reddy) are found to be owners of the schedule property and further observed the suit in O.S. No. 724/1980 filed by the Gangul

Reddy and Chandra Reddy was dismissed in A.S. No.

97/1998 on 31.07.2000. It is settle principal of law in a suit for permanent injunction the court must see the title of the parties incidentally and the main point for consideration is whether the plaintiffs are in possession and enjoyment of suit property as on the date of filing of the suit only.

27. The defendants counsel further submitted that the main dispute is between plaintiffs and defendants 25 and 26 and their LR’s with regard to share of Thatti Appala

Reddy son of Gangul Reddy. Whether the Thatti Appala

Reddy had lived together along with the brother Seetharami

Reddy by the time of death of Thatti Appala Reddy. It is not in dispute Thatti Appala Reddy died in the year 1932.

The said Thatti Appala Reddy had no issues and leaving behind him his wife T. Achamma is the only surveying legal heir. Admittedly Achamma died in the year 1942. As on the date of death of Appala Reddy in the year 1932. The Act

Hindu Woman’s Right to property Act 1937 will apply. As per Section 3 (3) of Hindu Women right to property Act “any interest devolving on Hindu widow under the provisions of this Section shall be the limited interest known 37 as a Hindu Woman’s estate, provided whoever that she shall have the same right of claiming partition to a male owner. The Hindu Women’s Rights to property Act,1937, was a lands mark in the development of Hindu Law during the Pre-Independence era. It conferred new rights on widows by placing them on the same level as the male issue of the last full owner, making inter alia the widow a simultaneous with their son. The Act also gave a joint to the operation of the rule of survivorship in regard to

Mitakshara coparcenary property. The rule of survivorship, by giving the widow her husband’s interest in the joint family property and suspending its operation in favour of the other coparceners. The widow took however only a limited estate. As per the above provision after the death of Thatti Achamma the share of Thatti Appala Reddy shall be reverted back to the Seetharami Reddy Branch. The defendants counsel submitted that the plaintiffs 1 and 2 are out of possession of 1/6th share. The said appeal No.

97/1998 was allowed on 31.07.2000. The plaintiffs have not chosen to amend the plaint after disposal of the AS. No.

97/1998. The plaintiffs have not chosen to pay court fee for cancellation of sale deed executed in favour of third parties and also for demolishing of the building constructed by the

D18. The defendants counsel further submitted that the suit properties are not in joint possession. The co-owners 38 shall be included in the suit, due to non joiner of co sharers the suit shall be dismissed. The plaint schedule does not contain existing building in the D18 property. The plaintiff sold away some property and they are not shown as parties.

28. The plaintiffs counsel submitted that originally suit was filed against D1 to D23. The purchasers of the suit property were shown as D14 to D23. It is not in dispute D1 to D13 are the original sharers along with plaintiffs. D24 himself came on record by filing Order 1

Rule 10 of CPC petition. D25 and D26 are also came on record as per the order in I.A. No. 320/1996 Dt:

12.02.1997. During the pendency of suit D25 and D26 are died. D48 to D50 being the LR’s of D25. D51 and D52 are being the LR’s of D26. D1 to D3 are the sons of Thatti

Chinna Obula Reddy. The case of the plaintiffs is that the suit properties are the ancestral properties of plaintiffs family Seetharami Reddy and Thatti Appala Reddy had put together entitled to 1/3rd share. The first plaintiff and father of the second plaintiff are the sons of Seetharami

Reddy. They were lived together as joint family and Thatti

Appala Reddy was acted as manager of the joint family.

Thatti Appala Reddy and Achamma had two daughters 39 namely Pedda Erukulamma and Chinna Erukulamma i.e.,

D25 and D26.

29. The plaintiffs counsel further submitted that first plaintiff and second plaintiff got issued legal notice through their counsel Dt: 23.02.1980 to the defendant No. 25 and

D26. They have received Ex. A7 legal notice but they have not chosen to give reply. Merely non issuance of reply it does not mean D25 and D26 have admitted the contents of the Ex. A7. The said legal notice contains after the death of Thatti Appala Reddy his share in all the family properties had devolved upon his sole surveying brother

Seetharami Reddy by the Law of Surveyorship. It further contains Thatti Appala Reddy died in the year 1932 in undivided status leaving behind him his wife Achamma and his two daughters i.e., D25 and D26 and he had no sons.

Para No. 3 of the Ex. A7 contains Achamma had only a right of maintenance and she expressed the desire to live separately and wanted some property to be given to her to be enjoyed during her life time for maintenance. She was give half share in the property owned by the family in Sy.

No. 431/1, 446 and 434 (B schedule item No. 1 to 3) locally called as Eguva Kuntalu and Diguva Kuntalu of Bandameeda

Kammapalle for her maintenance to reverted to them after her death.

40

30. Ex. A1 is the certified Xerox copy of registered sale deed executed by Venkataramana Reddy in favour of Thatti Appala Reddy Dt: 30.09.1930 in respect of land situated at B.K. Palle revenue village and Basinikonda

Village and it covers survey numbers of the suit properties.

Ex. A2 certified copy of the death register extract clearly shows Thatti Appala Reddy died on 28.03.1932. Ex. A3 is the certified Xerox copy of 10-1 Account for Sy. No. 6 extent Ac. 6-20 cents and it contain names Thatti Maddi

Reddy and Makam Subba Raju and Thatti Seethanna as pattadars. Ex. A4 is the certified Xerox copy 10-1 Account for Sy. No. 445 and 483 stands in the name of Seethanna and Chinna Obula Reddy, Venkata Reddy, T. Venkatramana

Reddy and Parikala Reddy. Ex A5 is the certified xerox copy of 10(1) extract for Sy. No.445 and 483 of B.K.Palle and it stands in the name of Seethanna, Chinnaobul Reddy

Venkatareddy, Venkatramana Reddy and Parikela Reddy for an extent of 16.04 cents. Ex. A6 is the certified Xerox copy of 10-1 stands in the name of Thatti Maddi Reddy, Obula

Reddy, Appi Reddy, Seethanna, Chinna Obula Reddy and covered survey numbers 431/1,446 and 434 lands situated at B.K. Palle. Ex A7 is the certified xerox copy of legal notice Dt::23-2-1980 got issued by the plaintiffs 1 and 2 to the D25 and 26 Ex. A8 is the certified Xerox copy of acknowledgement in respect of Ex. A7 legal notice showing 41

D25 and D26 received the Ex. A7 legal notice. Ex. A9 is the certified copy of plaint in O.S. No. 724/1980 filed by plaintiff No. 1 and 2 on the file of District Munsif against the

D25 and D26. Ex. A10 is the certified copy of written statement filed in O.S. No. 724/1980. Para no. 3 of the written statement clearly admitted that It is true that said

Thatti Appala Reddy is the elder brother of Seetharami

Reddy who is the father of the first plaintiff and the grandfather of second plaintiff and that they were members of a joint Hindu family. D25 and D26 have clearly admitted the relationship of the parties and they were joint family members. They further pleaded that Thatti Appala

Reddy and Seetharami Reddy were entitled to 1/3rd share in the properties mentioned in the plaint A and B schedule and as such Thatti Appala Reddy entitled to 1/6th share in the said property. It was further pleaded that the lands were not subdivided by that time she and the other co-owners including Seetharami Reddy were cultivating and in possession of separate extents for conveniance of cultivation. Ex. A11 is the certified copy of decree in O.S.

No. 724/1980. It was observed that defendants are restrained from interfering with plaintiffs possession and enjoyment of suit properties. Ex. A12 is the certified copy of judgment in O.S. No. 724/1980. Ex. A13 and Ex. A14 are the certified copies of decree and judgment in O.S.

42

No.724/1980 and A.S. No. 97/1998. The said appeal was allowed and suit was dismissed. In para No. 63 of the judgment after the death of her husband Thatti Appala

Reddy in 1932 she got only limited interest which is called widow estate. The property it was inherited by her is only for limited purpose of enjoyment and after her death in 1942 the property reverted back to the reversions i.e., the heirs of Thatti Appala Reddy brother Seetharami Reddy.

Ex. A15 is the certified copy of registered partition deed Dt:

04.03.2010 between Thatti Sidda Reddy and Thatti Uthama

Reddy. Ex. A16 is the certified copy of registered partition deed Dt: 06.03.2010 between Thatti Uthama Reddy, Devi,

Pujitha, Krushitha, Ramanamma, Sudha Rani and

Ramadevi. Ex. A15 and Ex. A16 documents came into existence during the pendency of the suit. Ex. A17 is the registered sale deed executed by Avula Achamma in favour of Thatti Gangul Reddy Dt: 14.05.1973. Ex. A17 marked through the PW5. Admittedly there is no pleading in the plaint averments about Ex. A17.

31. PW2 has identified his signature as 2nd attestor on the original of Ex. B1. Ex. B1 is the signature portion containing on the Certified Xerox copy of registered sale deed Dt: 28.04.2012 executed by Thatti Achamma and others in favour of Gangasani Devendra Reddy. Ex. B2 is 43 the signature of the PW2 as a first attestor on the original of registered sale deed Dt: 30.4.2012 executed by Avula

Achamma and others in favour of Nimmanapalle Irfan Khan.

It is evidently clearly Ex. B1 and Ex. B2 sale deeds came in to force during the pendency of suit. Ex. B3 is the certified copy of registered sale deed Dt: 30.09.1980 executed by

D24 in favour of D2. Ex. B4 is the certified copy of registered sale deed Dt: 08.04.1982 executed by D24 in favour of D2. Ex. B5 is the original sale deed Dt:

20.10.1915 executed by Makkam Chinna Venkata Swamy in favour of Thatti Sidda Reddy which is marked through

DW3. Ex. B5 is the more than 30 years document. Ex.

B6 is the certified copy of the partition agreement Dt:

05.07.1977 which is marked for limited purpose. The plaintiffs counsel totally denied the execution of the original of Ex. B6. The recital of the document speaks the shares are allotted as per the A, B and C schedule. Ex. B7 is the registered sale deed Dt: 09.02.1989 executed by D12 in favour of D19. Ex. B8 is the certified copy of registered sale deed Dt: 17.03.1983 executed in favour of D19. Ex.

B9 is the certified copy of RH page issued by SRO

Madanapalle from the period 1915 to 1955 of Basinikonda

Village and it contains name Thatti Sidda Reddy, Pujitha

Reddy, Venkata Reddy and Appi Reddy. Ex. B10 is the registration copy of the registered gift deed executed by 44

Thatti Appi Reddy in favour of Achamma for an extent of Ac.

4.75 cents of B.K. Palle. Ex. B11 is the registration copy of registered gift deed Dt: 26.07.1961 and enclosing the

Encumbrance certificate contain names Avula Achamma and

Thatti Appi Reddy. Ex. B12 is the registered will Dt:

09.08.2012 executed by Achamma in favour of her sons.

Ex. B12 was executed during the pendency of suit. Ex.

B13 is the Death certificate of Avula Achamma stating that she died on 01.10.2012. Ex. B14 is the original registered sale deed Dt: 30.04.2012 executed by Avula Achamma and others in favour of N. Irfan Khan. Ex. B15 is the served copy of the legal notice Dt: 25.07.2012 issued by D54 and

D58 to D60 calling for cancellation of the registered sale deed Dt: 30.04.2012. Ex. B15 is the legal notice issued during the pendency of the suit. Ex. B15 and Ex. B16 are exchange of legal notices was taken place during the pendency of suit. Ex. B17 is the registration copy of the sale deed Dt: 20.06.1983 executed by D4 and her daughter in favour of D27. Ex. B18 is the 1B Namuna issued by

Meeseva in favour of D27. Ex. B19 is the certified copy of mortgage deed Dt: 08.01.1960 executed by Poreddi Chinna

Erukulamma in favour of Poreddi Pedda Erukulamma. Ex.

B20 is the certified copy of settlement register it contains names Obulareddigari Obula Reddy, Thatti Appi Reddy and

T. Seethanna as pattadars. Ex. B21 is the certified copy of 45 the settlement register it contains name Thatti Achamma and Thatti Seethanna, Thatti Appi Reddy, Thatti

Nallapareddigari Obul Reddy, Thatti Maddi Reddy and some others. The land situated in Basinikonda Village in Sy. No.

47/2 is Ac. 00.79 cents and Sy. No. 77 is Ac. 1.61 cents in total Ac. 2.40 cents. Ex. B22 is the certified copy of the settlement register stands in the name of Obul Reddy,

Thatti Achamma, and Thatti Seethanna and subdivision no.

1-6 is Ac. 00.30 cents. Ex. B23 is the certified copy of settlement register stands in the name of T. Achamma, T.

Seethanna and others and it contain sub division survey numbers with extent Ac. 2.09 cents. Ex. B24 is the certified copy of settlement register stands in the name T.

Seethanna, T. Maddi Reddy and Makam Subbaraju and

Makam Subbaraju name inserted without any initial. Ex.

B25 is the certified copy of settlement register stands in the name Seethanna, Chinna Obul Reddy, Venkata Reddy, and

Venkatramana Reddy with an extent Ac. 16.04 cents. Ex.

B26 is the certified copy of settlement register stands in the name T. Maddi Reddy and Nagi Reddy, Bayya Reddy and

Erukulamma it may be Chinna Erukulamma or Pedda

Erukulamma with extent Ac. 12.03 cents. Ex. B27 is the certified copy of registered sale deed Dt: 12.07.1998 executed by Poreddi Chinna Erukulamma in favour of

Eswarappa. Ex. B28 is the certified copy of registered sale 46 deed Dt: 16.08.1979 executed by Thatti Pedda Reddeppa in favour of Punganuru Venkataramana Reddy. Ex. B29 is the certified copy of registered sale deed Dt: 14.12.1979 executed by Thatti Obulamma and her sons in favour of M.

Nagi Reddy and others. Ex. B30 is the certified copy of registered sale deed Dt: 15.12.1979 executed by Thatti

Gangul Reddy and others in favour of M. Nagi Reddy and others. Ex. B31 is the certified copy of registered sale deed

Dt: 15.12.1979 executed by T. Erukala Reddy and others

infavour M. Nagi Reddy. Ex. B32 is the certified copy of registered sale deed Dt: 15.12.1979 executed by Thatti

Gangul Reddy and others in favour of P. Anitha Reddy (D15). It appears plaintiff no. 1 and 2 have not executed

Ex. B32. Ex. B33 is the certified copy of registered sale deed Dt: 15.12.1979 executed by T. Erukala Reddy and others in favour of D15. The document executed by the D1 to D13, D25 and D26. Ex. B34 is the certified copy of registered sale deed Dt: 03.10.1981 executed by P. Yella

Reddy and others in favour of Narayana. Ex. B35 is the certified copy of registered sale deed Dt: 09.12.1982 executed by Poreddi Chinna Erukulamma and in favour of

Chinnappa. Ex. B36 is the certified copy of registered sale deed Dt: 03.08.1984 executed by Poreddi Erukulamma and her son in favour of Shaik Sardar Lal. Ex. B37 is the certified copy of registered sale deed Dt: 13.05.1985 47 executed by P. Pedda Erukulamma and others in favour of

Gold Food Industries. Ex. B38 is the registered sale deed

Dt: 28.04.2012 executed by defendants 10,12,42 to 47 and

the LR’s of D11 in favour of Devendra Reddy. Ex. B39 is the Pattadar Pass Book issued in the name of D59. Ex. B40 is the Pattadar Pass Book issued in the name of D60. Ex.

B38 to Ex. B 40 obtained during the pendency of the suit in respect of Sy. No. 77,78,79 and 80 is Ac. 1 ½ cents. Ex.

B41 is the certified copy of registered sale deed Dt:

15.12.1979 jointly executed by T. Gangul Reddy and others infavour of Anitha Reddy. Ex. B42 is the original registered will Dt: 24.4.1974 executed by Thatti Bayyamma.

32. The defendants counsel relied upon the that following decisions 2008 (3) ALD page 469 in between N.

Narayana Rao died by LR’s by v/s N. Rajeswara Rao. In a suit for partition all persons who have share in properties to be partitioned as a necessary parties. Non Impleading of such person entire dismissal of suit. As per the decision reported in 2010 (5) ALD page 339 in between

K.Bhaskara Rao, v/s K.A. Rama Rao. Hon’ble High Court observed that O1 R9 CPC necessary parties non joinder of fatal, defect cannot be cured by Impleading them in appeal.

As per another decision reported in 2012 (4) Alt page 253 in between Jahangiriji died per LR’s v/s K. Kumar. Defect of non joinder of necessary parties in the suit cannot be 48 cured by Impleading them in appeal. As per the another decision reported in 2008 (1) ALD page 347 in between

D. Dhashinamurthy v/s V. Vijaya Kumari. Non joinder of necessary parties in the absence of all the sharers decree of this nature cannot be executed and appeal dismissed due to non joinder of necessary parties. As per the another decision reported in 2012 (1) ALT page 356 in between

Avula Jayarami Reddy v/s Y. Nagarathnamma. It was observed that she did not join him as a party to the suit in partition suit. All parties having a share be joined as parties. Partition suit is not maintainable as it is non joinder of necessary party.

33. Some of the defendant’s counsels submitted that the suit is bad for non joinder of necessary parties i.e. the plaintiffs 1 and 2 have sold away property to others and the plaintiff. No.2 family members are not included as plaintiffs in the present suit. PW2 in his cross examination admitted that he is deposing evidence on behalf of all his family members. There is no conflict between the co–Plaintiffs due to non joinder of other family members. “As per the

decision reported in 2015 1 ALT page.454 in between

T Chandra Sekhar and another Vs Sunchu Rajamallu

and others.” Honourable High Court observed that petition filed under order 1 Rule 10 cpc impleadment of third parties can be impleaded even at the stage of partition 49 in Final Decree Proceedings. If he has a right in the suit property and if there is possibility if his right is being affected, if he is not added as a party. The above Principle of Law clearly applicable to the present suit facts on hand.

During pendency of the suit the necessary parties were added in the present suit. The contention of the D5 and other defendants the suit is bad for non joinder of necessary parties cannot be accepted.

The further contention of the defendant No.5 and some other defendants the suit is barred by the limitation. Appal

Reddy died in the year 1932 and leaving behind him his wife Achamma and two daughters (D25 and D26). The defendants 25 and 26 have pleaded in the written statement in earlier suit O.S.724/1980. The limitation starts after the death of Appal Reddy and they have to file suit with in 12 years i.e. 1942. The learned counsel further submitted that the Plaintiffs ought to have file suit for declaration and recovery of possession, after appeal

Judgment in Ex.A13 and Ex A14 in A.S.No.97/1998. The defendants counsel relied upon decision reported in 2008 (4) ALT page 42 in between V. Koteswara Rao v/s Muncipal

Corporation Warangal. Bar of limitation even if the opposite party does not take the plea bar of limitation court has duty to ensure that suits barred by limitation are not 50 entertained. It is settled principal of law merely defendants have not taken plea in written statement it is the duty of the court to see whether the suit is barred by limitation or not. There is no Bar to file a suit for Partition after observation of the Plaintiffs right in Appeal. “ As per

the decision reported in 2013 (5) ALT Page.312 in-

between Reddi Radhakrishna Vs Reddy Lakshmi and

others Honourable High Court observed that Limitation

Act,1963, Articles 110 and 113 when a person is excluded from joint family property and when he seeks to enforce the right to a share therein, it is Article 110 of Limitation Act applies and not article 113 which applies to suits for which there is no prescribed period of Limitation in such a case from the date on which exclusion becomes known to plaintiffs. The present suit filed in the year 1994. The defendants have failed to prove that the suit is barred by

Limitation. As per the above Article 113 there is no prescribed period to the Plaintiffs sought relief of Partition and when the defendants are not co operating for partition of suit properties only. The Parties are arrayed as Plaintiffs or defendants each party has to be treated as Plaintiff in a suit for Partition.

The learned defendants counsel further submitted that the

Plaintiffs are out of possession of the some of the items suit 51 property as observed in Ex.A14 i.e. Judgment in Appeal.

“As per the decision reported in 2014 (6) ALT

page.587 in Katta Subba Rao and another case it was observed that Joint family status in Hindu Law there is a

Legal Presumption that joint family status exists unless a pleading is made and proved by adducing evidence that there was severance of such status. Constructive possession

Hindu Law recognizes constrictive possession of ever member of joint family even though he may not be in physical possession of the joint family property. Possession of one co sharer is deemed to be the possession of all other co sharers. The above Principle of Law clearly applicable to the plaintiff’s case in view of the observation in Ex.A14 some of the items plaintiffs are not in possession.

The defendants counsel further submitted that D25 and

D26 and their L.R’s have perfected their title over the suit property. “As per the decision reported in 2004 (5)

ALT page.293 (DB). Between Kavitha Goud

Represented. By GPA Vs N. Sudharshan Reddy and

others it was observed that a member of joint family while calming absolute to a certain property as having been allotted to him in partition cannot claim taking an inconsistent plea that the acquired title to the said by adverse possession.

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34. As per the Ex.B6 unregistered partition agreement Dt: 05.07.1977 the sharers have got executed the same and admitting about the division of property.

The recitals contains the allottees are entitled to take possession of their respective shares from January 1978 and shares are allotted in A, B and C Schedule. The document discloses the clear partition between the parties and allotment of shares. It was suggested to the PW1 that on 05.07.1977 PW1 and other sharers have got executed unregistered partition agreement and divided the properties and same was denied. PW1 in his cross examination he deposed that there is no division of the properties. PW2 in his cross examination deposed that

Appal Reddy and Seetharami Reddy has got 1/3rd share in the suit property through their ancestors. The defendants counsel submitted that as per Ex. B6 the parties have got executed sale deeds in respect of B and other properties.

The plaintiffs are not entitled 1/3rd share in item No. 7 to 13 and 17 which were got subdivided long back. D5 to D7 are in possession of 1/12th share. The plaintiffs have pleaded in the plaint after the death of Appal Reddy, his share in all the family properties had devolved his sole surveying brother Seetharami Reddy by the law of surveyorship.

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35. As per the decision reported in 2004 (3) ALT page 51 in between Khaja Habeeb Huddin v/s M.D. Ibrahim and others. Hon’ble High Court observed that registration

Act u/sec. 17 and 49 unregistered partition deed.

document in question provides for the extent of shares of various persons and intends to bring about a partition such a document is partition deed. The document is not registered one. Whoever it can be received in evidence for the collateral purpose of severance status and nothing more. The above decision is clearly applicable to the Ex.

B6 and same can be looked into limited purpose.

36. It is settled principle of Law, Burden of joint family properties. Initial burden is on plaintiffs to show that the property is joint family property and then it shifts on the defendants to show that the same was not joint family property. Burden lies on the person who asserts that a particular property is a joint family property. As per the sections 101 to 103 of Indian Evidence Act the plea taken by the defendants that as per the Ex. B6 the partition was effected and the items 7 to 13 and 17 which were got subdivided.

37. DW1 in his cross examination admitted that plaintiffs have got 1/3rd share in the suit properties. it was 54 further admitted that DW1, D1, D3, D4 and PW4 are together entitled for 1/3rd share. It was further admitted that D5 to D13 are entitled for remaining 1/3rd share in the suit properties. It was further admitted that the property covered under Ex. B3 which is joint extent purchased from

D24. It is true that he purchased Ex. B4 property from

D24 which was in joint possession. He further admitted that he has objection for partition of plaint schedule property and allotment of 1/3rd share to the plaintiffs after allotting 1/3rd share to the DW1 and his two brothers and

D4 and including his purchasers. It was further admitted that D1 to D13 are co owners in the suit properties. It was further admitted that D4 is entitled to 1/4th share in the suit property. DW2 in his cross examination admitted that the plaintiffs are having 1/3rd share in the suit property. It was further admitted that she has no objection to allot 1/3rd share to the plaintiffs in the suit properties. It was further admitted that she has executed sale deed in favour of D27 in respect of item No. 14 and 16 with joint extent. D2 had purchased property from D24 with joint extent under Ex. B3 and Ex. B4. She does not know whether D24 sold away more than his extent he possessed by him in the suit property in favour of D2.

She does not know whether Bayyamma executed any will in favour of D53 and his mother under Ex. B42. DW2 is 55 claiming Ac. 4-50 cents of land i.e., 1/12th share in the suit properties. She further admitted that she has sold away 10 Kuntas of land in joint status by way of three sale deeds.

DW3 clearly admitted that he has no objection to allot share to the second defendant in the suit property. It was further admitted that D10 and D12 have got share in the suit property. He does not know whether the some extent of suit property sold away to D19 or not. He has no objection to allot the D10 and D12 share to the D19. It was further admitted that Ex. B5 is a old document more than 100 years. DW3 did not file any subsequent alienation document. D4 is entitled 1/6th share after death of her husband. DW3 did not file subdivision proceedings.

There was no document reducing in writing in respect of partition. He does not know whether D25 executed a registered will Dt: 10.02.1976. It was further admitted that there is no record to show that Appala Reddy and

Seetharami Reddy are divided and residing separately.

Thattivaripalle Village is situated in Sy. No. 6. DW3, D6 and D24 have executed sale deed in favour D15 and he got constructed house and compound wall. It was further admitted that as per the recitals of Ex. B6 the partition was effected on the date of execution of document. It was further admitted that no notices were served to all the sharers before subdivision of the suit properties in the year 56 1974 and statements of the sharers was not recorded. Ex.

B6 properties situated in Basinikonda Village. Admittedly original of Ex. B6 not produced before the court. It was further admitted that Appala Reddy and Seetharami Reddy never divided their properties. witness again says in the year 1924 they got divided but there was no document reducing into writing. In the absence of documentary evidence it is not safe to accept that both of them got divided in the year 1924. DW3 did not file any record to show that Achamma name was mutated in the revenue record and so also there is no record to show that D25 and

D26 have cultivated the suit lands after death of Achamma.

DW3 and other sharers sold away some extent in Sy. No. 5 and 6 in Golden Foods industries.

38. DW4 clearly admitted that she has purchased Ex.

B8 property in joint extent in Sy. No. 82. It was suggested to DW4 her vendors have no right to alienate the property covered under Ex. B7 and Ex. B8 with extent Ac. 00.02 cents each. DW5 clearly admitted that DW4 had purchased property without boundaries. It was further admitted that

P. Krishna Reddy did not shown registered partition deed to

DW5 before purchased the property. Ex. B7 and Ex. B8 does not contain plot numbers and approval of the plots by the Grama Panchayath. The plaintiffs counsel suggested to the DW5 stating that in A.S. No. 97/1998 court observed 57 that D25 and D26 are not entitled any share in the suit property as such they have preferred second appeal before

Hon’ble High Court and said appeal was dismissed. DW6 in

his cross examination admitted that his maternal grandfather and his brothers have equally entitled share in the properties of Nallapa Reddy. Original of Ex. B10 and

Ex. B11 are not traced out as such registration copies filed.

On showing the signature contains on original registered sale deed Dt: 14.05.1973 does not belongs to a Krishna

Reddy. Revenue authorities have not issued Pattadar Pass

Book and title deed in the name of his mother. Her mother name was not mutated in the revenue records. He does not know the other attestors of Ex. B10 and Ex. B11.

It was suggested to the DW6 that Ex. B14 is nominal document and they have no right to execute Ex. B14. He further suggested to the witness Ex. B14 during the life time of his mother and her father sold away entire extent belongs to T. Appi Reddy and no property remains with them. It was further suggested to witness that they have no right in the suit properties. He does not know whether

D59 has purchased the property from D10, 12, 30 to 33 and 42 to 47. The learned counsel submitted that the defendant grandfather has executed registered gift settlement in favour of their mother Avula Achamma in respect of B schedule properties on 26.07.1961. Avula 58

Achamma has entitled 1/24th share in item No. 1 to 4 and 1/5th share in item No. 5 of plait B schedule property by virtue of registered gift deed Dt: 26.07.1961 executed by her father in favour of her Avula Achamma. Ex. B12 is original registered will Dt: 09.08.2012 executed by Avula

Achamma infavour of Defendants No. 54 and 55 said to have executed during the pendency of the suit. Ex. B14 during the life time of his mother and her father sold away entire extent belongs to T. Appi Reddy and no property remains with them.

39. It was further suggest to the witness they have no right in the suit properties. Ex. B14 original sale deed

Dt: 30.04.2012 marked and same obtained during the

pendency of suit. Ex. B15 and Ex. B16 exchange of legal notices. It was further admitted that Nallappa Reddy has got 1/6th share in the suit property. DW7 admitted in the cross examination who identified as one of the attestors of the Ex. B12. DW8 identified his signature containing on

Ex. B12. DW9 clearly admitted that D2 is having share in the suit property. He further admits that D10 and D12 have got right in the suit property. It was further admitted that D5 to D13 are enjoying the undivided share and they were co-sharers. He does not know whether D54 to D58 having share in the suit property. It was further admits that DW9 R. Sivamma have not obtained permission from 59 the Hon’ble District Court to alienate the share of the minors property. Witness voluntaries Sivamma has signed on behalf of the minors. Sivamma has got some other property besides property covered under Ex. B17. They have purchased the property covered under Ex. B17 in joint extent. It was further admitted that D4 and her daughters have succeeded the property after the death of husband of the D4. They have got 1/12th share in the suit property.

DW10 clearly admitted that D1 to D3 are having share in the suit properties. It was further admitted that T.

Nallappa Reddy has got 1/6th share in the suit property. It was further admitted that D12 share in Sy. No. 82 sold away to D19 covered under Ex. B7. It was further admitted that he obtained certified copies from certified copies in O.S. No. 724/1980. He further admitted that he did not obtained certified copies from SRO office. At the time of marking certified copies witness is directed to obtain certified copies from the originals and same marked subject to objection. As per the decision reported in 2013 (1) ALD page 733 in Division Bunch in between D. Ravi Yadav v/s

Cherukula Uday Kumar and others. It was observed that

Evidence Act u/s 77 and 79 certified copies of production of in proof of contents of public documents permissibility and presumption.

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As per the above principal of law certified copies the court shall presume will be presume under section 79. Dw10 further admitted that he does not know whether D25 and

D26 have adopted the written statement of D5 or not. It was suggested to the DW10 that D25 never executed any document in his favour and same was denied. DW10 is claiming share of the both D25 and D26, D5 and D48 and

D49 are claiming through D25. It was suggested that after death of Appala Reddy his wife Achamma have not entitled any right in his share and same was denied. DW11 clearly admitted in the cross examination that he purchased the property covered under Ex. B38 from the branch of T.

Nallapa Reddy. PW10 vendor Nallapa Reddy had got 1/6th share. He does not know the pendency of the present suit as on the date of Ex. B38. Admittedly original of Ex.

B38 obtained during the pendencey of the suit. It was suggest to DW11 his vendor has no right to alienate Ac.

00.44 cents and same was denied. DW11 further admitted that he sold away Three kuntas of land out of property covered under Ex. B38. DW12 clearly admitted in the cross examination that he has purchased the property in Sy. No. 77,78,79 and 80 with total extent Ac. 00.22 cents. Ex. B40 is the pass book it contains Ac. 00.21 ½ cents. He purchased the property from A. Achamma, A.

Venkataramana Reddy, Sreenivasulu Reddy and others.

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He has no objection to allot share to D19 covered under Ex. B7 and Ex. B9. It was suggested to DW11 that his vendor intends to sell the actual extent of Ac. 00.2 ½ cents i.e., equallent to one Kunta and he obtained Ex. B40 moreextent taking advantage of their innocence and fraud played against them. He sold away some extent of property to other in Ex. B14. Ex. B14 recitals contains their vendor acquired the property by virtue of gift deed Dt:

26.07.1961 executed by T. Appi Reddy. PW11 did not obtained Encumbrance certificate from 26.07.1961 till the date of Ex. B14. DW13 filed Chief Affidavit but did not appear for cross examination and his evidence is closed.

DW14 clearly admitted in the cross examination that he has got two brothers Krishna Reddy and Venkata Reddy. Out of which Krishna Reddy died. Sivamma is maternal aunt.

It was further admitted that Salamma had three sons and one daughter namely Venkatramana Reddy, Krishna Reddy and Venkata Reddy. Sivamma had two daughters namely

Sulochana and Chandrakala. Admittedly Sulochana and

Chanralaakal who are the daughter of D4.

It was suggest to the DW14 stating that counter claim is not maintainable and same was denied. DW15 clearly admitted in the cross examination that he did not sign as attestor on the registered will Dt: 24.04.1974 in Ex. B42.

DW15 is closely related to the D53. D15 is the son of the 62 second attestor of the registered will Dt: 24.04.1974.

Admittedly DW15 have not brought any document with containing signatures of his father for comparison of the same. DW16 clearly admitted in the cross examination that he has nothing to do with the share of D2. D53 is elder brother of D16. DW16 did not file any record to show that he is in joint possession and enjoyment of suit property. It was suggested to the DW16 that he is not entitled any share in the suit property and D53 alone is entitled share as per the will and same was denied. It was further suggested to D16 Bayyamma has no right to execute will and same is created one.

40. As per the decision reported in 2008 (5) ALT page 341 inbetween Amara Venkata Subbaiah and sons and others v/s Shaik Husain Bai and others. Hon’ble High

Court observed that Indian Evidence Act u/sec 68, Indian

Succession Act 1925 U/sec. 63(c) proof of will. Will be proved by propounder by examining one or more attesting witnesses , will be given effect to it is proved. However if challengers of will proves his allegations of fraud, coercion or undue influence in regard to execution of will it can be rejected. If execution of will is surrounded by suspicious circumstances.

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41. The above principle of law Ex. B42 of the will and profounder fails to remove the suspicious circumstances. The other side contending that testatrix had no right to bequeath the Ex. B42 property.

42. The plaintiffs are contending that after death of Appal Reddy and his wife T. Achamma got right to enjoy the property towards her maintenance i.e., her pre existing right. After death of Achamma or her two daughters D25 and D26 have not acquired any right of deceased Estate of

Appala Reddy.

43. As per the decision reported in AIR 1999 (S.C. 1147) in between beni Bai, Appellant v/s

Raghubir Prasad Respondent. The Hon’ble Apex court observed that in particulars No. 8 in the present case, the widow was conferred the limited right in lieu of maintenance in recognition pre existing right.

This principle was statutorily recognized by their enactment known as Hindu Women rights to property Act, 1937 and Hindu Married Women Right to separate residence and maintenance Act 1946.

44. As per the decision 1995 (2) An.W.R. 1 (S.C). The Hon’ble Apex court delivered judgment in between Vijay Pal Singh and another appellant v/s Dy.

Director of Consolidation and others. It was observed that 64 the Hindu Women Right to property Act 1937 does not apply to claim made by Shiva Devi but her right is one of limited estate. Since Bhanwar Sing died in 1910 she has no right to share in the property left by her husband and the sons of Kulwar sign are entitled to succeed to the estate of Bhanwar Sign. The above case facts clearly applicable to the present case Appala Reddy died in the year 1932 and

T. Achamma died in the year 1942. The right in the case of widow is a pre existing right which existed under the

Shastric Hindu Law long before the passing of the 1937 or 1946 Act.

45. The D5 and D6 counsel further submitted that the right of a widow to succeed as heir to her husband was recognized at least 200 years ago Vriddha Manu,

Yajnavalkaya, Vishnu, Brihaspathi, Katyanayana, Sankaha,

Likhitha and Devala fully recognize her right to succeed to her husband. Widow is only heir to her husband a widow therefore can only succeeded to her husband property or rights i.e., to the property which was actually vested in his name either in title or in possession at the time of his death. As per the law prevailing prior to Hindu succession

Act of 1937 came in to force widow was entitled to succeed to her husband property. Hindu women right to property act 1937. The counsel relied upon decision reported 1989 (1) APLJ page no. 27. Widow of the deceased brother 65 cannot maintain a suit for partition on the basis of on earlier partition after 1947 as Hindu women right to property act was made applicable to the Agricultural lands from the year 1947 and widow was only a maintenance holder. The counsel further relied upon decision AIR 1996 S.C. page 146 in between Vijaya Pal Sign and another v/s Deputy

Director of Consolidation. The Hon'ble Apex court observed that husband of a widow was separated from his brothers and was in possession of his share of property and after his death in the year 1910 his widows name was mutated and continued in the record of right her limited estate would be enlarged into absolute right by operation of u/sec. 14(1)

Hindu Succession Act. The above decision facts are not directly applicable to the present suit facts on hand. There is no evidence on record to prove that Thatti Appala Reddy and Thatti Seetharami Reddy have divided and the name of

Thatti Appala Reddy and after his death Achamma name was mutated in the revenue record. The plaintiffs counsel submitted that the 10 (1) account marked through

Defendants and item No. 1 to 3 of the B schedule property was given to the Achamma for her maintenance as such her name found in revenue records in the respect of three survey numbers only. The defendants cannot take advantage the name of the Achamma found in 10 (1) in Ex.

B21, Ex. B22 and Ex. B23. The defendants counsel further 66 relied upon decision AIR 1966 S.C. page 1879 in between

Eramma Appellant V/s Veerupan. The Hon'ble apex court observed that on the death of widow it is the only Hindu law apply and therefore under the custom in force under which a daughter was not entitled to succeed to ancestor property of the father in preference to the reversioner should apply and she is entitled to succeeded properties. The defendant counsel further relied upon AIR 1953 Madras page No. 22.

The property acquired by father at partition between him and sons in his separate property and on his death it passes to his widow. The counsel submitted that after death of

Achamma the D25 and D26 became entitled to her share in the suit properties. They have exercise of their right in the suit lands have executed various sale deeds. The plaintiffs never questioned the execution of registered sale deeds and other documents executed by D25 and D26.

The plaintiffs are not entitled for 1/3rd share and they have sold away several properties and they have not mentioned the same in the plaint. The D25 and 26 were entitled for 1/6th share in the suit property. Ex. B19 to Ex. B37 are marked subject to objection which are the certified copies of the public documents. The counsel relied upon decision 2017 (1) ALD page 626 in between K. Narasinga Rao v/s K.

Supriya and another Para No. 14 U/sec. 65, 74 and 77 of

Indian Evidence Act certified copies to the certified copies 67 obtained from the court proceedings of another suit are public documents can be received secondary evidence subject to objection. The above principal of law clearly applicable to the Ex. B19 to Ex. B37. At the time of marking of the same the court received the document subject to objection. At the stage of arguments the Ex.

B19 to Ex. B37 can be admitted into evidence as secondary evidence. If the documents are not admitted the party rights may be prejudice. The original documents are not available to summons the same or to obtain certified copies from the originals. Ex. B19 to Ex. B37 certified copies obtained from previously marked Exhibits in earlier suit.

The plaintiffs have to prove their title independently without depending upon weakness of the defendants case.

46. The defendant No. 5 counsel relied upon another decision 2007 (2) ALT page 21 in between P.

Jagadeeswar v/s P. Lakshmi bai Admissions as to rights over property. Rights of parties to property need to be decided on the basis of oral and documentary evidence and by applicable principle of law. The plaintiffs herein relied upon the admissions made in the written statement pleadings filed by the D25 and D26 in earlier suit and also admissions of the defendants witnesses.

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47. The defendants counsel relied upon decision reported in AIR 1952 S.C. page 109 in between M. Nagi

Reddy and others v/s P. Durairaja Naidu and others.

Alienation by Hindu widow suit for possession by reversioners mesne profits claim for from widows death (limitation Act (1908) Art. 141 Hindu Law Reversioners.

The defendants counsel relied upon another decision reported in AIR 1970 S.C. page 789 in between Fateh Bibi etc., appellants v/s Charan Dass, Respondent. Hindu law of Inheritance (Amendment) Act 1929 section 1 Act applies even when a Hindu male dies intestate before 21.02.1929 but is succeeded by female heir who dies after that date.

48. The learned counsel submitted that Thatti

Seetharami Reddy never took steps for taking possession the share of his brother T. Appala Reddy after death of

Achamma. The plaintiffs counsel submitted that the plaintiffs are in joint possession of the suit property along with other co sharers.

49. The defendants counsel relied upon decision reported 2014 (6) ALD page 27 in between Vidya Sagar v/s

Ram Krishan Sign Died by LR’s and others. Limitation Act 1963 Articles 65 suit for recovery of possession based on title bar of limitation claim of plaintiff based on will executed by grandfather on 01.05.1967 bequeathing suit property to 69 him, when he was aged about 5 years plaintiff attained majority in 1981 and taken up proceedings for grant of probate in 1983 but taken no steps to seek relief of recovery of possession. The above decision facts are not directly applicable to the present suit facts on hand. The plaintiffs are not minors to file the suit after attaining majority. The cause of action para shown in the plaint the plaintiffs demanded the defendants for partition and immediately cause of action arose.

The defendants counsel relied upon decision reported 1999 (4) ALT page 118 in between Khasireddy

Ramayamma v/s Kasireddy Ramarao. Mere cancellation of such a document by execution another document does not affect the legal consequences with flow under a duly executed and registered document. The plaintiffs have not admitted the document executed by the party without having right and they have filed suit for partition and there is no need to seek cancellation of said sale deed executed without having any right and same is not binding on the plaintiffs.

50. The defendant No. 5 counsel submitted that the issues decided in earlier suit in O.S. No. 724/1980 and

AS. No. 97/1998 and court observed the plaintiffs herein

are the owners of the suit property. The said observation is 70 not binding on the defendants. The counsel relied upon decision 2010(2) ALD page 1 (DB) in between Y. Jangamma and other v/s special court under AP land grabbing (prohibition Act ) Resjudicata applicability of scope finding recorded in an earlier injunction suit cannot be treated as resjudicata see, A.P. land grabbing (Prohibition) Act 1982

Sections 7, 7A and 8. The counsel further relied upon decision 2012 (4) ALD page 280 in between Mova

Venkataswara Rao and another v/s V. Chinaramaya died and others. Hon’ble High Court observed that earlier suit was filed seeking bear injuction title was not in issue and the same was not even gone into incidentally. The decision earlier suit and consequential don’t operate cannot resjudicata. The defendant counsel relied upon another decision 2016 (3) ALD page 724 in between G. Sundara

Narasaraju and others v/s P.Venakta Narasimha Raju and others. Hon’ble High Court observed that the documents were considered in former suit only on limited accepts and to find out as to whether plaintiffs in former suit were in possession or not as on the date of institution of suit. Non filing of some documents in former suit is ground to disbelieve said document and previous suit is filed for injunction. 2010 (1) S.C.J. page 362 between Ramachanra

Dagudu Swanavani by LR’s v/s Vittu Hiramahar by LR’s.

The Hon'ble Apex court observed that when the material 71 issue has been tried can determined between same parties in a proper suit by competent as to the status of one of them in the relations to the other he cannot be again tried in other suit between the same parties. In a suit for injunction the issue would be confined to possession only.

If the right to possession of property cannot be decided without decision to the property of a person who approached the court. The observation in the appeal 97/1998 the plaintiffs cannot take advantage and they have to prove their share in the suit properties independently.

51. The defendant no. 59 and 60 counsel submitted that plaintiffs have not pleaded in the plaint about the execution of Ex. A17. They cannot contend that it is 30 years old document and same is admissible evidence without pleading. As per the decision 2011 (2) ALD page 44 S.C. The Hon'ble Apex court observed that beyond pleadings of parties court cannot consider any fact which is beyond the pleadings of the parties. PW5 T. Reddi Sekhar

Reddy clearly admitted in the cross examination no Pattadar

Pass Books were issued in respect of Ex. A17. He identified his signature containing on Ex. B38 as identified witness.

He know the D59. He further admitted that plaintiffs have not sought relief in the plaint prayer about Ex. A17 property. He do know what is the main source of property acquired by Avula Achamma in the suit property. The 72 counsel suggested to the PW5 Avula Achamma never executed Ex. A17 infavour of his father and same was denied. He do know what the property purchased by D60 under Ex. B14. In view of the admission of PW5 plaintiffs are not entitled to seek partition of the Ex. A17 property.

The plaintiffs have not pleaded about the Ex. A17 property and they are not entitled any share in Ex. A17 property.

It is settled principle of law without pleading the parties are not entitled to adduce evidence.

52. The plaintiffs counsel submitted that after the death of Thatti Achamma her daughters D25 and D26 or their children are not entitled any share in the property of

Thatti Appala Reddy. The share Thatti Appala Reddy shall be reverted back to the Thatti Seetharami Reddy. The plaintiffs counsel relied upon a decision AIR 1977 (S.C.) page 1944 in between Vaddiboyana Tulasamma and others appellant v/s Baddiboyana Sesha Reddy by LR’s respondents Hindu Succession Act U/se. 14 (1 and 2) Hindu female acquiring under compromised in lieu of satisfaction of her right of maintenance. Compromised prescribing limited interest. In para No. 29 Hindu Women right to property act 1937 which provided that on partition a widow would be entitled to the same share as the sons in the property of her husband. The act of 1937 while a giving a share to the wife on partition had not disturbed her right 73 claim interest which was preserved intact and although

she was not permitted to sue for partition she was

undoutedly to sue for maintenance. The above principle of law Cleary applicable to the present suit facts on hand. The plaintiffs are entitled to the 1/3rd share as prayed in the suit. Thatti Achamma or her two daughters i.e.,

D25 an D26 or their childrens are not succeeded any estate of the deceased Thatti Achamma.

Additional Issue framed on 24.4.2017:

Whether the D53 is entitled to partition of the written statement schedule properties against the plaintiffs and other defendants?

53. Admittedly the said counter claim filed on 14.6.2010 and the office took several objections but the

D53 did not comply the office objections. The same was not numbered by assigning I.A. number. The then

Presiding Officer have not passed any order whether the counter claim is numbered or not. There is no docket order specifically to file written statement by the plaintiffs or other defendants. There is no opportunity given to the plaintiffs to file rejoinder basing on the counter claim. How the counter claim is maintainable against the co defendants.

Merely paying of fixed court fee it does not mean D53 is entitled to adjudicate the counter claim. However D53 74 adduced oral evidence and sought counter claim relief against the plaintiffs. D53 claiming right basing on the registered Will Dt::24.4.1974 said to have executed by

Thatti Bayamma in favour D53. The said original Will is marked as Ex B 42 through DW14. During cross examination clearly admitted that there is no document stands in the name of Bayamma to succeeds through her ancestors. Admittedly DW14 was not present at the time of execution of B 42. He has no personal knowledge about execution of Ex B 42. There is no supporting documentary evidence to execute the Will by testatrix in favour of DW14.

The contention of the other defendants Ex B42 is created one with the help of attestors. It was further admitted that

DW14, his mother Salamma and Bayamma names were not mutated in the revenue records and never issued pattadar pass book in their names. DW15 deposed that he identified signature of his father containing on the Ex B42.

Admittedly DW15 did not produce any document with containing his father signature for comparison. The counter claim filed by D53 was filed 18 years after institution of the suit. The D53 has failed to prove that the counter claim filed within the limitation period. The D4 counsel relied upon decision reported in 2012 (4) ALT page 5 S.C. in between A. Shanmugam v/s Ariya Kshatriya

Rajikula Vamsathu Madiyala Nanddlavana papipalanai 75

Sangam Represented by is president Etc. The apex court observed that purity of pleadings. The pleadings foundation of the litigation. Pleading must set forth sufficient factual details of the facts. Pleadings must inspire confident and creditability. The above principle of law clearly applicable to the present counter claim petition filed by the D53.

There is no description of the parties names who are the counter claimants / Plaintiffs and who are the Respondents / Defendants.

54. The D4 counsel relied upon decision reported in 2006 (3) ALT page 87 S.C. in between Joseph Antony

Lazares by LR’s v/s A.J. Francis. The apex court observed that execution of will genuine undue influence and coercion.

Entire circumstances leading to execution and registration of will have got to be scrutinize carefully. The D4 counsel relied upon decision AIR 2001(S.C) page 2802 in between

N. Kamalam and another v/s Ayyaswamy. Attestation of will effect of subscribing a signature on the part of his scribe cannot be identified to be of same status as that of the attesting witness. The apex court clearly observed the examination of attestor of the will is mandatory. DW14 clearly admitted that Thatti Gangul Reddy never executed any document in favour of his mother or his grandmother.

Thatti Gangul Reddy died prior to marriage of Salamma and admission made by PW2 that Thatti Gangul Reddy died prior 76 to 1937. Thatti Sivamma has been in possession of the properties hence Bayyamma and Salamma has no right in the properties of Thatti Gangul Reddy. The title of

Bayyamma has not mentioned in Ex. B42. The recitals of

Ex. B42 entertained the doubt. The burden lies on the propounder to remove the suspicious circumstances.

55. As per the decision reported in 2002 (4)ALT

Page 426 (DB) in between G. Seethamahalakshmi and another Vs. P.Raja Rao and others. It was observed that mere saying that the signature of attesting witness is of him may not be sufficient unless he produces the signature of attesting witness on some admissible document and made both the signatures were available for comparison by the court to find out whether the person acted as a real witness.

56. The above principle of law clearly applicable to Ex B42 Will. D53 propounder of the Will has fails to comply the provisions under Section 68 and 69 of Indian

Evidence Act. DW14 and DW15 evidence is no way helpful to claim the share in the written statement schedule properties by way of counter claim. Accordingly additional issue is answered against D53.

The plaintiff counsel relied upon decision reported in 2015 (5) ALT page 383 in between B.

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Chandra kala v/s A. Anuradha and another. Hon’ble High

Court observed that Hindu succession scope of the scene widows possession strength in case of the principal of survivor continue to apply.

The plaintiffs counsel relied upon another decision reported in 2015 (6) page 55 in between Girijala Subba Rao died for LR’s v/s Kamireddi Satyanarayana and others.

Hon’ble High Court observed that Property given to A Hindu

Widow towards her maintenance and remained in her possession on the date when the Hindu Succession came into operation becomes her absolute estate.

The plaintiffs counsel relied upon another decision 2014 (5) ALT page 454 D.B. in between B.

Kondamma and others v/s S. Rami Reddy her LR’s.

limited rights of a women if a property given to a Hindu women with limited rights her life in recognition of the pre- exiting right to maintain her and if she was alive by the time of Hindu Succession Act, 1956 came into force, her limited rights stand enlarged in to absolute ones.

The plaintiff counsel relied upon another decision reported 2011 (3) ALT page 7 (S.C) in between

Ramakrishna Mutt Represented by Manager v/s M.

Maheswaran and others. The Hon'ble Apex court observed 78 that constructive possession of Hindu Female sufficient for application of section 14 (1) of Hindu Succession Act.

The plaintiffs counsel relied upon another decision reported 1995 (1) ALT page 68 in between Atava

Akkulamma v/s G. Papi Reddy. Hon’ble High Court observed that since the plaintiff (Widow of the original owner) had acquired the suit property and possessed if both

before and after commencement of the act. She was

entitled to hold it as full owner.

The plaintiffs counsel relied upon another decision reported 1995 (3) ALT page 44 (S.C.) in between

Mangatmal and another v/s Punni devi. The apex court observed that maintenance includes provision for residence limited ownership rights in property given to a female in recognitation of her pre-existing right to maintenance to upon coming in to force of the act.

The above decisions clearly shows the limited rights of widow will be enlarged into absolute rights after passing of the Hindu Succession Act 1956. Prior to that the widow had got limited rights of the estate of the deceased husband.

The plaintiffs relied upon decision 2017 (2) ALT page 736 in between B. Jagadeeswra Rao v/s Sri Ravi enterprises. Hon’ble High Court observed that effect of non 79 registration is that such a document shall not affect any immovable property. It cannot be received as evidence of any transaction.

The plaintiffs counsel relied upon another decision reported 2014 (2) ALT page 275 in between Shaik

Qutubuddin and another v/s Goli Viswanatham and others.

Hon’ble High Court observed that when an objection is

raised at the time of marking of document and same objection decide immediately without postponing same to the final stage of the judgment.

57. The plaintiff counsel relied upon another decision reported 2009 (3) ALT page 562 in between N. Sreehari for

LR’s v/s N. Prakash and others. Copy of the will admissibility certified copies of the will said to have executed by plaintiffs grandfather. unmarked copy of will are not available. The plaintiffs counsel took objection for marking the Ex. B19 to Ex. B37 subject to objection. I have already discussed above Ex. B19 to Ex. B37 can be looked into same as secondary evidence and certified copies are public documents under section 74 of the Indian

Evidence Act.

58. The plaintiffs counsel relied upon another decision reported 1977 AIR (S.C) page 409 in between

Union of India v/s Mokesh Builders and financiers. U/sec.

80 18 of the Evidence Act an admission by a party is sub stand evidence facts admitted and admissions duly proved or admissible evidence irrespective of whether the party making them appeared in the witness box or not. The above principle of law clearly applicable to the present case the earlier admission made by the D25 and D26 in earlier suit are binding in nature.

59. The plaintiff counsel relied upon another decision reported 2001 (5) ALT page 367 D.V. in between M.

Manik Reddy and another v/s M. Anusuya Devi and others.

the Hon’ble High Court observed that registration act u/sec.

17 instrument of partition mere payment of stamp duty and penalty as directed by court does not make the award admissible in evidence. The above principle of law applicable to the Ex. B6. The court received the evidence for collateral purpose only.

60. D27 has examined as DW9 and deposed that D4 sold away property covered under Ex. B17 Dt: 20.06.1983.

Ex. B18 is the 1-B Namuna. DW9 clearly admitted that defendants 5 to 13 are enjoying the undivided share. he has purchased the property covered under Ex. B17 with joint share. The counsel for D4 submitted that Sivamma has no right to execute Ex. B17 on behalf of the minor without obtaining permission from the Hon’ble district court.

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Ex. B17 recitals discloses Sivamma executed on behalf of the minors as natural mother and guardian and same is binding on the D4 and her legal representatives. D4 and her daughters have succeeded the property after death of husband of the D4 they have got entitled 1/12th share in the suit property. DW9 evidence is made it clear, he purchased Ex. B17 property with joint extent and the suit properties are deemed to the joined in between the co sharers. The aggrieved party have not filed any suit for cancellation of original of Ex. B17 after attaining majority of the minors.

61. The cause of action for filing of the suit the plaintiffs have clearly pleaded in the para no. 10 of the plaint on 01.06.1994 the plaintiff have demanded the defendants for partition. The D5 counsel contention there is no cause of action to file the suit cannot be accepted.

After death of T. Achamma in the year 1942 the properties given to her towards her maintenance and same revert back to the plaintiffs family, as per the than prevailing law i.e., prior to the passing of Hindu Succession Act 1956.

Merely non filing of suit for declaration it does not mean the suit for partition is not maintainable. The non joinder of persons to whom D25 and D26 said to have been executed sale deed is not binding on the plaintiffs. The original co sharers are added as parties in the suit. The D25 and D26 82 have no right to alienate the properties. The plaint averments and the evidence shows the mother of the D25 and D26 was allowed to enjoy the 1/6th share out of 1/3rd share of the family in item No. 1 to 3 of B schedule towards her maintenance and remaining 1/6th share has been in possession of plaintiffs family. The plaintiffs have been in joint possession of suit property as such the plaintiffs have filed the suit for partition.

62. Originally plaintiffs No. 1 and 2 have filed the suit against the D1 to D23. After the death of plaintiff no. 1 plaintiffs no. 3 and 4 were added as parties. The subsequent purchasers from the co sharers were added as

D14 to D23 and the remaining parties were added as their own accord under order 1 rule 10 CPC as well as LR’s of the original parties. The suit is not bad for non joinder of necessary parties as contended by the D5 and some of the defendants. There is no conflict between the plaintiff no.

2 and his family members and he is representing his branch of family after death of second plaintiff father.

63. As per the entries made in Ex. A3 certified Xerox copy of 10-1 Account for Sy. No. 6 of Basinikonda Village the name of Thatti Seetharami Reddy (Seethanna) found as owner of the property along with Thatti Maddi Reddy and others. As per Ex. A4 certified Xerox copy of 10-1 account 83

Sy. No. 7 and other numbers of Basinikonda village entries contains names of Thatti Appi Reddy and Thatti Seethanna.

Ex. A5 certified Xerox copy of 10-1 extract Sy. No. 445 and 483 of B.K. Palle village. Entries made it clear Seethanna as one of the owner of the suit properties along with other co sharers. As per Ex. A6 10-1 Account covered Sy. No.

445 and 483. Entries contain the name of Appi Reddy and

Seethanna along with other co sharers. Merely non filing of registered sale deeds it does not mean the plaintiffs have no share in the suit properties. The plaintiffs are claiming their right through their ancestors. As per Ex. A10 the certified copy of written statement in O.S. No. 724/1980 filed by the D25 and D26 made it clear, Thatti Appala Reddy and Thatti Seetharami Reddy were entitled to 1/3rd share in the paint A and B schedule properties and as such Appala

Reddy had entitled to 1/6th share in the suit properties. it was further admitted that the suit lands were not subdivided and the other co owners including Thatti

Seetharami Reddy were cultivating the same. U/sec. 58 of the Indian Evidence Act the admitted facts need not be proved and the D25 and D26 categorically admitted the share of plaintiffs in the suit properties. Merely non filing of suit for declaration and recovery of possession basing on the observation in AS. No. 97/1998 it does not mean the plaintiffs have no right to file suit for partition against the 84 defendants. as per Ex. A7 legal notice Dt: 23.02.1980 contains Sy. No. 431/1, 446, 434 i.e., item No. 1 to 3 of the

B schedule property given to Thatti Achamma towards her maintenance and it further contains and the said lands reverted to them after her death. The D25 and D26 have not chosen to deny the Ex. A7 legal notice and same deemed to be admitted. As per the decision reported in

AIR 1977 S.C. 1944 in Thulasamma case is clearly applicable to the present case about the limited rights .

Hon’bel Apex court further observed that only if the widow

with limited rights of maintenance is surveyed till the passing of Hindu Succession 1956. She had become absolute or full owner of the properties of her husband.

As per the text of Raghavachari Hindu Law, in the Hindu women’s rights to property act 1937 as introduction it is noted the widow took place limited estate in her husband’s interest if the joint family property and the said act is repealed in the year 1956. The said Hindu Women’s right to property act 1937 has no retrospective effect.

Therefore Thatti Achamma had given property covered three survey numbers towards her maintenance to revert to them after her death. After death of Thatti Atchamma the defendant No. 25 and 26 are not entitled to any share in the suit properties. If any property alienated by D25 and

D26 and said sale transaction are not binding on the 85 plaintiffs. The plaintiffs have sold away property Ac. 00.20 cents in Sy. No. 6 i.e., item No. 10 of the A schedule has to be deducted from their original 1/3rd share. The plaintiffs have purchased Ac. 00.18 cents in item No. 13 of the plaint

A schedule shall be entitled apart from their original 1/3rd share. The plaintiffs are not entitled to partition of the property covered under Ex. A17. The plaintiffs have not pleaded specifically about the claiming of Ex A17 property to seek partition of the same.. Hence the evidence of PW5 i.e., (third plaintiff) cannot be admitted into evidence.

64. D1 to D4 and one Venaktaramana

Reddy are entitled to 1/3rd share. The defendant No. 5 to 13 have together entitled to the remaining 1/3rd share in the suit properties. The purchasers from some of the co sharers basing on the registered sale deeds and same binding on the respective vendors within their original share allotted to them. The said sale transactions are not binding on the plaintiffs and some of the sale deed have executed during the pendency of the suit and lispendeny will apply to the said sale deeds. The plaintiffs are not entitled to seek partition of any house or building constructed in the suit survey numbers by the purchasers.

The plaintiffs are entitled to partition of the suit survey numbers shown in A and B schedule properties only.

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65. The daughters of late. Thatti Appala Reddy are namely Pedda Erukulamma and Chinna Erukulamma are not entitled to 1/6th share in the suit properties. The defendants have failed to prove that item No. 7 to 13 and 17 in the A schedule are not in joint properties. As per the

Ex. B6 is the certified copy of unregistered partition deed

Dt: 05.07.1977 which is marked for limited purpose. Ex.

B6 does not contain the entire plaint A and B schedule properties. Ex. B6 does not contain the signatures of the all the parties. There is no revenue record to show that the revenue authorities had served notices to the co sharers at the time of alleged subdivision proceedings. It is not believable to prove that the properties are divided and the properties are subdivided in the revenue records. The defendant No. 5 and 6 and D25 and D26 have failed to prove that Ex. B6 was acted upon and the sharers have been in separate possession and enjoyment of the said extents. The defendants further failed to prove that Thatti

Seetharami Reddy got divided from his brother Thatti

Appala Reddy by the time of death of Thatti Appala Reddy in the year 1932. As per the legal notice Ex. A7 legal notice three items i.e., 1 to 3 of B schedule properties had allotted to Thatti Achamma during her life time towards her maintenance. As such the name of Thatti Achamma might have been mentioned in the revenue records and mere 87 possession of the said items it does not mean she was the absolute owner of the said property. Admittedly Thatti

Achamma died prior to the passing of the Hindu Succession

Act 1956. The Women’s right to property act 1937 was came in to force during the life of Thatti Achamma and by the time Thatti Achamma has limited right of maintenance.

The defendants 5 to 7 and others have no right to claim right over the suit properties by adverse possession because they are claiming right over the suit property by succession. The defendants have further failed to prove the suit is bad for non joinder of necessary parties. During the pendency of the suit the purchasers and other legal representatives were added on record. I have already discussed if any co sharer is not added In the suit and he is entitled to come on record in final decree proceedings within the shares allotted to the original co sharers. There is no conflict between the plaintiffs to claim their share in the suit properties. Ex. B10 was registered on 17.12.1979, where as Ex. B16 is registered on 18.12.1979.

The plaintiffs never executed Ex. B16 along with D1 to D13 and D25 and D26 in favour of D15. The sale deeds executed by some of the defendants are not binding on the plaintiffs and excess extents. The plaintiffs have failed to prove that the mother of the D54 to D58 have sold the property to the deceased first plaintiff under Ex. A17. The 88 court is not inclined to allot property covered under Ex. A17 without any specific pleadings in the plaint. The sale deeds executed by D8 to D12 and their entitle extent and extents sold by them which is Cleary shows that the purchasers have obtained sale deeds more extents from their vendors than they had entitled extents. The said extents purchased by the purchasers are not binding on the plaintiffs. The sale deed stands in the name of P. Anitha

Reddy Dt: 19.12.1979 executed by the other defendants is not binding on the plaintiffs. The earlier suit filed for injunction and the present suit is filed for partition. The said discussion and finding of the court on different issue.

The D25 and 26 are clearly admitted the share of the plaintiffs in the suit properties in their written statement.

The defendants have failed to prove that Thatti Bayyamma got right to executed registered will Dt: 24.04.1974 in respect of property covered under the will. The defendants are not entitled to claim any share by virtue of the will Dt:

24.04.1974. The second defendant is entitled to the properties purchased under two registered sale deeds

Dt::30-9-1980 and 8-4-1982. along with his original share.

As such D2 is entitled to 1/18th share in the suit properties.

The ancestors of D1 to D4 and one Venkatramana REddy had 1/3rd share and the remaining 1/3rd share belongs to the defendants 5 to 13 and one Appi Reddy.Thatti Appi 89

Reddy has sold away his share to D13. The defendants 5 to 13 have became entitled to the remaining 1/3rd share. The defendants 14 to 23 are the purchasers of some extent in the plaint schedule properties. D27 is purchased from

D24 in respect of land Sy. No.78 and Ac 0-13 cents in Sy.

No.No.80 .Item No.16 in Sy. No.No.80 of plaint schedule under registered sale deed . Defendants 28 and 29 are the son and daughter of Deceased No.7 and they became entitled to the deceased D7 share. The defendants No.30 to 33 who are the legal representatives of deceased D11 and they became entitled to the share of deceased D11.

Defendants 34 to 41 are the legal heirs of D13 and they have succeeded to the share deceased D13. D40 to 47 are the legal representatives of D9 and they became entitled to his share in the suit properties. D53 claiming share basing on the Will 24.4.74 said to have executed by Bayamma.

D53 propounder of the Will has fails to prove that

Bayamma had got right to bequeath the property covered under the Will. D53 is not entitled any share in the suit properties. D54 to 58 who came on record by way of filing

Order 1 Rule 10 CPC by claiming as LR’s of Atchamma. They are not entitled to any share in the plaint schedule property by way of registered gift deed . I have already observed the plaintiffs have failed to prove they have purchased property covered under Ex A17 as such the property covered under 90

Ex A17 are entitled to the D54 to D57. The deceased

Atchamma the mother of the D54 to 57 and the wife of

D58 has sold away the property covered under the gift deed

Dt::27.6.1961 in the suit properties to D13. Atchamma has

sold away 0.04 1/6 cents in item No.13., 1/24th share in items 12,6,14 and 1/36th share in item No.3 and 4 and other properties to the deceased first plaintiff under registered sale deed. Therefore D54 to D58 are not entitled for any share and they have fails to prove they are in joint possession and enjoyment of plaint schedule property. D59 has obtained registered sale deed during the pendency of suit Dt::28.4.2012 from D10, 12 and D42 to D47 who are the LR’s of D9 and D12 . As such, D59 is entitled to claim property basing on the rights of his vendors executed the registered sale deed in his favour. Similarly D60 has obtained registered sale deed Dt::30-4-2012 during the pendency of the suit from D54 to D57 and their mother

A.Atchamma. Thatti Appi Reddy had got 1/24th share as such D54 to D57 are entitled to same. The subsequent purchaser D60 work out the remedies and D19 also work out his remedies as subsequent purchasers . The purchasers of the suit property have to claim their rights within the share allotted to the original co sharers and the said extents sold away by the co sharers does not affect to the original share allotted to the plaintiffs i.e. 1/3rd share.

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Item No.1 The defendants 60 to 65 are not entitled to any share in the suit properties . DW12 in his cross examination admits that as per the recitals of ExB14 contains their vendors acquired property by way of gift deed executed by

Appi Reddy. The plaintiffs counsel suggested to the DW12 stating that the father of Appi Reddy by name Nallapareddy had 1/6th share out of which his sons succeeded share equally and they have obtained Ex B14 for more ex tent and same was denied. Dw12 further admits that Atchamma executed registered. Sale deed in favour of first plaintiff prior to he purchased the property. Previous sale transaction is binding on DW12 and his vendors. DW12 further admits that he sold away some extent of property to others covered under Ex B14. Merely plaintiff No.2 and another family members have signed as attestors on the sale deeds executed by some of the defendants it does not mean the plaintiffs have got knowledge the contents and the rights of vendors. Accordingly issues No. 1 to 8 and

Additional issues framed on 31.01.2001. Additional issues

framed on 20.03.2017 and Additional issue framed on 24.04.2017 are answered in favour of the plaintiffs and against the some of the defendants. The counter claimant (D53) is not entitled to pass decree against the plaintiffs and the other defendants as prayed for. Accordingly issues 92 1 to 8 and additional issues are answered in favour of the plaintiffs and against the defendants.

Issue No.9:

66. In the result, the suit is preliminary decreed with costs in favour of the plaintiffs and against the defendants.

The plaintiffs are entitled to 1/3rd share in A and B schedule property after deducting Ac. 00.20 cents in item No. 10 and also entitled Additional extent Ac. 00.18 cents in item No.

13. D1 to D4 and one Venkataramana Reddy are entitled to 1/3rd share. D2 is entitled to 1/18th share including the property covered under two registered sale deeds Dt::30- 9-1980 and 8-4-1982. D5 to D13 and D54 to 57 are entitled the remaining 1/3rd share. The defendants 53, 61 to 65 are not entitled to any share in the suit properties. The plaintiffs are not entitled to claim any structures or buildings constructed in the part of the suit properties. The subsequent purchasers are entitled to claim their share as per the original shares allotted to the original co sharers .

The excess extents purchased by them is not binding on the plaintiffs.

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The D53 is not entitled to seek partition of written statement schedule property against the plaintiffs and the defendants. The counter claim petition is dismissed without costs.

Typed to Dictation by the Personal Assistant and

pronounced by me in the open court this the 27th day of

April, 2017.

Additional. Senior Civil Judge,

Madanapalle.

Appendix of Evidence

Witnesses examined on behalf of plaintiffs

PW1:T.Gangul Reddy.

PW2:Chandra Reddy.

PW3:P.Akkulappa.

PW4:T.Venkatramana Reddy.

PW5:T.Reddisekhar Reddy.

Witnesses examined on behalf of Defendants

DW1: Thatti Appoji Reddy.

DW2:Thatti Sivamma.

DW3:Thatti Sidda Reddy.

DW4:C.Sujatha.

DW5:C.M.Bhaskar Reddy.

DW6:A.Venkatramana Reddy.

DW7:M.Venkata Reddy.

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DW8:Shaik Abdul Rahiman.

DW9:Kuppala Akkulappa.

DW10:Chinna Yella Reddy.

DW11: G.Devendra Reddy.

DW12:N.Irfnan Khan.

DW13:P.Anitha Reddy.

DW14:A.B.Reddigari Venkatramana Reddy.

DW15:A.Jayasind Reddy. (Chief Affidavit filed only)

DW16:A.Balanagireddigari Venkatreddy.

Exhibits marked on behalf of the plaintiffs

Ex. A1 is the certified Xerox copy of registered sale deed executed by Venkataramana Reddy in favour of Thatti

Appala Reddy Dt: 30.09.1930 in respect of land situated

B.K. Palle revenue village and Basinikonda Village.

Ex. A2 certified copy of the death register extract clearly shows Thatti Appala Reddy died on 28.03.1932.

Ex. A3 is the certified Xerox copy of 10-1 Account for Sy.

No. 6 extent Ac. 6-20 cents .

Ex. A4 is the certified Xerox copy 10-1 Account for Sy. No.

445 and 483 stands in the name of Seethanna and Chinna

Obula Reddy, Venkata Reddy, T. Venkatramana Reddy and

Parikala Reddy.

Ex A5 is the certified Xerox copy of 10(1) extract for Sy.

No.445 and 483 of B.K.Palle.

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Ex. A6 is the certified Xerox copy of 10-1 stands in the name of Thatti Maddi Reddy, Obula Reddy, Appi Reddy,

Seethanna, Chinna Obula Reddy.

Ex A7 is the certified Xerox copy of legal notice Dt::23-2- 1980 .

Ex. A8 is the certified Xerox copy of acknowledgement.

Ex. A9 is the certified copy of plaint in O.S. No. 724/1980.

Ex. A10 is the certified copy of written statement filed in

O.S. No. 724/1980.

Ex. A11 is the certified copy of decree in O.S. No.

724/1980.

Ex. A12 is the certified copy of judgment in O.S. No.

724/1980.

Ex. A13 and Ex. A14 are the certified copy of decree and judgment in O.S. No. A.S. No. 97/1998.

Ex. A15 is the certified copy of registration partition deed

Dt: 04.03.2010 between Thatti Sidda Reddy and Thatti

Uthama Reddy.

Ex. A16 is the certified copy of registration partition deed

Dt: 06.03.2010 between Thatti Uthama Reddy, Devi,

Pujitha, Krushitha, Ramanamma, Sudha Rani and

Ramadevi.

Ex. A17 is the registered sale deed executed by Avula

Achamma in favour of Thatti Gangul Reddy Dt: 14.05.1973.

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Exhibits marked on behalf of Defendants:

Ex. B1 is the signature portion containing on the sale deed.

Certified Xerox copy of registered sale deed Dt: 28.04.2012 executed by Thatti Achamma and others in favour of

Gangasani Devendra Reddy.

Ex. B2 is the signature o the PW2 as a first attestor on the original of registered sale deed Dt: 30.4.2012 executed by

Avula Achamma and others in favour of Nimmanapalle Irfan

Khan.

Ex. B3 is the certified copy of registered sale deed Dt:

30.09.1980 executed by D24 in favour of D2.

Ex. B4 is the certified copy of registered sale deed Dt:

08.04.1982 executed by D24 in favour of D2.

(Ex. B5 is the original sale deed Dt: 20.10.1915 executed by Makkam Chinna Venkata Swamy in favour of Thatti

Sidda Reddy which is marked through DW3.

(Ex. B5 is the more than 30 years document.)

Ex. B6 is the certified copy of the partition agreement Dt:

05.07.1977 .(Marked for limited purpose ).

Ex. B7 is the registered sale deed Dt: 09.02.1989 executed by D12 in favour of D19.

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Ex. B8 is the certified copy of registered sale deed Dt:

17.03.1983 executed in favour D19.

Ex. B9 is the certified copy of RH page issued by SRO

Madanapalle.

Ex. B10 is the registration copy of the registered gift deed executed by Thatti Appi Reddy in favour of Achamma for an extent of Ac. 4.75 cents of B.K. Palle.

Ex. B11 is the registration copy of registered gift deed Dt:

26.07.1961.

Ex. B12 is the registered will Dt: 09.08.2012 executed by

Achamma in favour of her sons.

Ex. B13 is the Death certificate of Avula Achamma stating that she died on 01.10.2012.

Ex. B14 is the original registered sale deed Dt: 30.04.2012 executed by Avula Achamma and other in favour of N. Irfan

Khan.

Ex. B15 is the served copy of the legal notice Dt:

25.07.2012 .

Ex. B15 and Ex. B16 exchange of legal notices was taken during the pendency of suit.

Ex. B17 is the registration copy of the sale deed Dt:

20.06.1983 executed by D4 and her daughter in favour of

D27.

Ex. B18 is the 1B Namuna issued by Meeseva in favour of

D27.

98

Ex. B19 is the certified copy of mortgage deed Dt:

08.01.1960 executed by Poreddi Chinna Erukulamma in favour of Poreddi Pedda Erukulamma.

Ex. B20 is the certified copy of settlement register it contains names Obulareddigari Obula Reddy, Thatti Appi

Reddy and T. Seethanna as pattadars.

Ex. B21 is the certified copy of the settlement register it contains name Thatti Achamma and Thatti Seethanna,

Thatti Appi Reddy, Thatti Nallapareddigari Obul Reddy,

Thatti Maddi Reddy and some others.

Ex. B22 is the certified copy of the settlement register stands in the name of Obul Reddy, Thatti Achamma, and

Thatti Seethanna.

Ex. B23 is the certified copy of settlement register stands in the name of T. Achamma, T. Seethanna and others and it contain sub division survey numbers with extent Ac. 2.09 cents.

Ex. B24 is the certified copy of settlement register stands in the name T. Seethanna, T. Maddi Reddy and Makam

Subbaraju and Makam Subbaraju name inserted without any initial.

Ex. B25 is the certified copy of settlement register stands in the name Seethanna, Chinna Obul Reddy, Venkata

Reddy, and Venkatramana Reddy with an extent Ac. 16.04 cents.

99

Ex. B26 is the certified copy of settlement register stands in the name T. Maddi Reddy and Nagi Reddy, Bayya Reddy and Erukulamma it may be Chinna Erukulamma or Pedda

Erukulamma with extent Ac. 12.03 cents.

Ex. B27 is the certified copy of registered sale deed Dt:

12.07.1998 executed by Poreddi Chinna Erukulamma in favour of Eswarappa.

Ex. B28 is the certified copy of registered sale deed Dt:

16.08.1979 executed by Thatti Pedda Reddeppa in favour of

Punganuru Venkataramana Reddy.

Ex. B29 is the certified copy of registered sale deed Dt:

14.12.1979 executed by Thatti Obulamma and her sons in favour of M. Nagi Reddy and others.

Ex. B30 is the certified copy of registered sale deed Dt:

15.12.1979 executed by Thatti Gangul Reddy and others in favour of M. Nagi Reddy and others.

Ex. B31 is the certified copy of registered sale deed Dt:

15.12.1979 executed by T. Erukala Reddy and others infavour M. Nagi Reddy.

Ex. B32 is the certified copy of registered sale deed Dt:

15.12.1979 executed by Thatti Gangul Reddy and other in favour of P. Anitha Reddy (D15) .

Ex. B33 is the certified copy of registered sale deed Dt:

15.12.1979 executed by T. Erukala Reddy and other in favour of D15.

100

Ex. B34 is the certified copy of registered sale deed Dt: 03.10.1981 executed by P. Yella Reddy and others in favour of Narayana. Ex. B35 is the certified copy of registered sale deed Dt: 09.12.1982 executed by Poreddi Chinna Erukulamma and in favour of Chinnappa. Ex. B36 is the certified copy of registered sale deed Dt:

03.08.1984 executed by Poreddi Erukulamma her son in favour of Shaik Sardar Lal.

Ex. B37 is the certified copy of registered sale deed Dt:

13.05.1985 executed by P. Pedda Erukulamma and others in favour of Gold Food Industries.

Ex. B38 is the registered sale deed Dt: 28.04.2012 executed by defendants 10,12,42 to 47 and the LR’s of D11 in favour of Devendra Reddy.

Ex. B39 is the Pattadar Pass Book issued in the name of

D59.

Ex. B40 is the Pattadar Pass Book issued in the name of

D60.

Ex. B41 is the certified copy of registered sale deed Dt:

15.12.1979 jointly executed by T. Gangul Reddy and others infavour of Anitha Reddy.

Ex. B42 is the original registered will Dt: 24.4.1974 executed by Thatti Bayyamma.

Addl.Senior Civil Judge, Madanapalle.

101

1

.IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE,

MADANAPALLE

Present : Sri P. BHASKARA RAO Addl. Senior Civil Judge, Madanapalle.

Thursday the Twenty seventh (27th) day of April, 2017.

O.S. No. 73/1994

Between:

1. Thatti Gangul Reddy, (Died)

2. Thatti Chandra Reddy.

3. Thatti Reddy Sekhar Reddy,

4. Avula Prameelamma (The Plaintiffs 3 and 4 are added as per orders passed in I.A. No. 588 of 2012 dated 23-8-2012) … plaintiffs

AND

1. Thatti Pedda Uthama Reddy,

2. Thatti Appoji Reddy,

3. Thatti Subbi Reddy,

4. Thatti Sivamma,

5. Thatti Sidda Reddy,

6. Thatti Uthama Reddy,

7. Thatti Budda Reddy (died),

8. Thatti Reddeppa Reddy,

9. Thatti Nallappa Reddy (died), 10.Thatti Chinnappa Reddy, 11.Thatti Venkata Reddy (died), 12.Thatti Krishna Reddy.

2 13.Thatti Erukala Reddy (died), 14.Bodireddigari Nirmalamma, 15.Palakuri Anitha Reddy, 16.Kasireddi Syamalamma, 17.Moremreddigari Nagi Reddy.

18.Golden Foods Industries, represented by its Managing Director Sri Bingi Sreeramaiah, 19.Cherakuravaripalle Sujatha, 20.Thupalle Samireddy, 21.Machireddigari Subba Reddy, 22.Moore Vasundramma, 23.Bodreddi Dwarakanatha Reddy, 24.Thatti Venkatramana Reddy.

(D-24 added as per orders in I.A. No.320 of 1996 allowed on 12-2-1997).

25.Poreddi Pedda Erukalamma (died).

26.Poreddi Chinna Erukalamma (died).

(D-25 and D-26 are added as per orders in I.A. No. 1580 of 1994 allowed on 18-9-97).

27.Kuppala Akkulappa.

(D-27 is added as per orders in I.A. No. 298 of 2002 allowed on 20-11-1992).

28.Thatti Venkatramana Reddy, 29.Thatti Rajamma.

(D-28 and D-29 added as per L.Rs., of deceased late Thatti Budda Reddy as per orders in I.A. No. 471 of 2005 allowed on 20-6-2005).

30.Thatti Chinna Reddemma, 31.Thatti Siva Reddy, 32.Thatti Jayapal Reddy, 33.Vanisree.

3 (D-30 to D-33 are the L.Rs. of the deceased Thatti Venkata Reddy as per orders in I.A. No. 644 of 2005 allowed on 28- 7-2005).

34.Thatti Lakshmamma, 35.Thatti Venkatramana Reddy, 36.Thatti Obul Reddy, 37.Thatti Siva Reddy, 38.M. Venkatalakshmamma, 39.Siddala Krishna Veni, 40.Avula Rajamma, 41.Siddala Syamalamma.

(D-34 to D-41 are the L.Rs., of deceased L.Rs., of Erukala Reddy, as per orders in I.A. No. 643 of 2005 allowed on 26- 7-2005).

42.Thatti Achamma, 43.Thatti Sreenivasulu Reddy, 44.Thatti Ramachandra Reddy, 45.Thatti Mohan Reddy, 46.Siddala Venkatalakshmamma, 47.Siddala Ramanamma.

(D-42 to D-47 are the L.Rs., of deceased Thatti Nallappa Reddy as per orders in I.A.No.1045 of 2004 allowed on 8-4- 2005).

48.Thatti Sreenivasulu Reddy, 49.Padmavathamma, 50.Pushpavathi @ Pushapamma.

(D-48 to D-50 are added as per orders in I.A. No. 107 of 2006 dated 23-10-2006).

51.Poreddy Chinna Yella Reddy.

52.K. Parvathamma.

4 (D-51 and D-52 are added as per orders in I.A. No.474 of 2006 dated 23-10-2006).

53. Avula Balanagireddigari Venkatramana Reddy.

(D-53 is added as per orders in I.A. No.546 of 2008 dated 11-9-2008).

54. Avula Venkataramana Reddy

55. Avula Sreenivasulu Reddy

56. Avula Bhaskar Reddy

57. Thatti Lalithamma

58. Avula Rami Reddy (Died) (D-54 to 58 are added as per orders in I.A.No.632 of 2012,

dated 14-08-2015).

(The mother of D-54 to 58 filed I.A.296/2013 she died during pendency of I.A. and her L.Rs. are impleaded as parties to the petition in I.A.No.634/2012) (D-54 to 57 are recognized as LRs. of deceased D- 58 as per orders in I.A.No.213 of 2016, dated 08-03-2016).

59. Gangasani Devendra Reddy (D-59 is added as per orders in I.A. No.634 of 2012, dated 14-08-2015).

60. Nimmanapalle Irfan Khan (D-60 is added as per orders in I.A. No.635 of 2012, dated 14-08-2015).

(D-59 & 60 are added Subject to result in C.R.P.No.5410/2015 & C.R.P.No.5571/2015 pending before

Hon'ble High Court of A.P.)

(D-54 to 60 are impleaded as they themselves filed petition U/o 1 Rule 10 C.P.C. to implead them as defendants to the suit)

61. Avula Balanagireddigari Venkata Reddy

62. Marasani Ramalakshmi

63. Avula Rukminamma 5

64. Avula Amala

65. Avula Aswini (D-61 to 65 are added as per orders in I.A.No.190 of 2017,

dated 13-03-2017).

… Defendants.

Counter claim filed by D53 along with written statement on 14.6.2010 without showing the description of parties names as the plaintiff and defendants.

Thatti Gangul Reddy and others Plaintiffs.

Vs.

Tatti Pedda Uthama Reddy and others Defendants.

This suit and counter claim filed by the D53 coming on this day (24.04.2017) before me for hearing in the presence of Sri Y. Samba Siva Reddy, Advocate for the Plaintiffs, and of Sri N.S.N.Prasad, Advocate for D5, 6,12,25 and D26; Sri

A.Sivarami Reddy, Advocate for D1,D2, D7 and D8; Sri

A.Phani, Advocate for D4 and D54 to 58, Sri.

A.Anjaneyulu, Advocate for Defendant No.13 14 and D19 ,

Sri K.Vasudeva Rao, Advocate for D15,M.Chaitanya Kumar,

Advocate for D18, Sri B.Madhava Reddy, Advocate for D16 and D17; Sri K.Manjunatha Reddy, Advocate for D28, D59 and 60, Sri K.Sridhar, Advocate for D61 to 65; Sri

B.Bhujanga Rao, Advocate for D19, Sri K.Jitendra, Advocate for D53, Sri B.Amaranatha Reddy, Advocate for D51 and

D54, Sri N.Reedynagulu, Advocate for D27, and 6

Sri S.Sesha Chalapathy, Advocate for D.52, Sri

C.Vijayakumar Reddy, Advocate for D8, upon perusing the material on record, and having stood over for consideration till this day, this Court made the following:-

J U D G M E N T

This suit is filed by the plaintiffs to pass a preliminary decree for partition of plaintiffs 1/3rd share in the plaint A and B schedule for division of the same into

THREE equal shares and allot ONE such share to the plaintiffs taking into consideration good and bad soil of the land less Ac. 00.20 cents in item No. 10 and for an

Additional extent of Ac. 00.18 cents and item No. 13 of the

plaint A schedule and costs.

The Defendant No.53 filed written statement along with counter claim Order VIII Rule 6 (1A)

CPC to pass a decree in favour of Defendant No.53 and against the plaintiffs and other defendants.

2. The brief facts of the plaint averments are as follows:-

The plaintiffs submits that, Seetharami Reddy had a brother by name Appala Reddy. First plaintiff and the deceased father of the second plaintiff by name Bayya 7

Reddy are the sons of the Late. Seetharami Reddy. Appala

Reddy had no sons and had only two daughters namely

Pedda Erukulamma and Chinna Erukulamma. Appala Reddy and Seetharami Reddy were members of a Hindu joint family members and Appala Reddy was acted as manager of joint family. Appala Reddy died intestate in the year 1932 leaving behind him his wife Achamma and his two daughters. After death of Appala Reddy his share was devolved upon his sole surveying brother i.e., Seetharami

Reddy and his sons i.e., first plaintiff and his deceased brother Bayya Reddy.

Achamma who is the wife of Appala Reddy had only right of maintenance after death of her husband and she died in the year 1942. Her daughters have no share in the properties. The plaintiffs had filed a suit in O.S. No.

724/1980 on the file of 1st Additional District Munsif Court

Madanapalle for permanent injunction and the said suit was decreed. The daughters of late. Appala Reddy have no right over the plaint A and B schedule properties. The plaintiffs have acquired right and title in respect of 1/3rd share in plaint A and B schedule.

The suit properties are the ancestral properties of plaintiffs and Seetharami Reddy had 1/3rd share. The defendants No. 1 to 4 and one Venkatramana 8

Reddy had 1/3rd share and remaining 1/3rd share belong to ancestors of the defendants No. 5 to 13 and one Appi

Reddy. Venkatramana Reddy had sold away his share to the 2nd defendant Appoji Reddy. The defendants 1 to 4 have became entitled 1/3rd share. The share of Appi Reddy sold away to Erukala Reddy (D13). The defendants 5 to 13 have became entitled to remaining 1/3rd share. The defendant

No. 24 is not entitled for 1/12th share and he has sold away major portion of his share to the 2nd defendant and others.

The defendants No. 25 and 26 have no share in the suit properties. The aggrieved parties preferred appeal AS NO. 54/1993 against the decree and judgment passed in O.S. No. 724/1980. The said appeal was transferred to Sub Court Madanapalle and renumbered as A.S. No. 97/1998.

In the said appeal it was observed that the plaintiffs herein are the owners and they have got right and title to the share claimed by them in the suit properties.

After death of Appala Reddy his share had devolved upon his surveying members of the joint family i.e., Seetharami

Reddy and not devolved upon Appal Reddy’s Wife Achamma who is mother of D25 and D26. The judgment passed in

A.S. No. 97/1998 operates as resjudicata and defendant no.

25 and 26 cannot re-agitate the same. D25 and D26 are 9 not entitled for any share in the suit properties and they are not necessary parties to the suit. Defendants No. 48 to 50 have no right over the suit properties. The D51 and D52 have no right over the suit properties because deceased D6 herself had no right over the suit properties. Similarly D53 has no right over the suit properties.

The registered sale deed Dt: 24.04.1974 is not executed by Thatti Bayyamma in favour of her daughter

Salamma (Mother of D53) and same is forged and fabricated one. D4 is the daughter-in-law of Thatti

Bayyamma and she is in possession and enjoyment of share of Thatti Gangul Reddy.

First plaintiff Thatti Gangul Reddy died intestate on 16.12.2011 leaving behind him the plaintiffs no. 3 and 4 as his legal representatives. They had succeeded to the share of first plaintiff in the suit properties. The plaintiffs 3 and 4 are entitled to pass a decree along with second plaintiff for 1/3rd share in the suit properties, after excluding

Ac. 00.20 cents in item No. 10 and Ac. 00.18 cents in item

No. 13 of A schedule. D61 to D65 have no right over the suit properties. The plaint schedule properties are joint properties and they are not divided by metes and bounds.

D14 to D23 are the purchasers of some extents in A and B schedule properties as such they are necessary parties.

10

The plaintiffs are entitled to 1/3rd share, D1 to D4 are entitled to 1/3rd share and D4 to D13 are entitled to 1/3rd share. The 1st plaintiff had purchased an extent Ac. 00.16 cents in item No. 13 in plaint A schedule.

Defendants No. 14 to 23 are the purchasers from

D1 to D13. The plaintiffs have demanded the defendants for partition on 01.06.1994 and they have not co-operated for partition of the same. The plaintiffs have filed rejoinder denying the claim of newly added defendants. The plaintiffs further submitted that they have purchased some extent of items in suit properties during pendency of the suit. Hence the suit is filed.

3. The 2nd defendant filed written statement denying the plaint averments except relationship of the parties. D2 submits that on 30.09.1980 and 08.04.1982 purchased the lands under two different sale deeds in A schedule in Sy. No. 47/2 an extent of Ac. 00.07 cents in Sy.

No. 77 an extent of Ac. 00.07, in Sy. No. 54 an extent Ac.

00.08 cents in Sy. No. 83 is Ac. 00.15 cents in Sy. No. 6-5 is Ac. 00.03 cents. IN B schedule Sy. No. 455 is Ac. 2.24 cents in Sy. No. 246 is Ac. 00.23 cents in Sy. No. 431/1 is

Ac. 00.50 cents in Sy. No. 434 is Ac. 00.50 cents from T.

Venkatramana Reddy D24 in respect of 1/15th share and also this defendant is entitled ancestral properties share 11 1/15th share and in total 1/18th share in the entire suit properties. Since the date of purchase he is in possession and enjoyment of the same. Some extent of the land acquired by the R & B department for formation of the road under Award No. 2 and 3 General 96 and 97 Dt:

12.08.1996. The defendant received the compensation amount under protest and referred the matter to civil court and same is pending. The defendant further submits that plaintiffs are not entitled to claim any relief in the above suit.

D4 have filed written statement and also

Additional written statement. The D4 denied the plaint

averments. He further submits that plaintiffs had never demanded the defendants for partition of the suit properties. The defendants are ready and willing for partition of the suit properties and defendant is entitled 1/12th share. The defendant is in joint possession of the same, after amended the Sy. No. 75 and substitute the 78 in item No. 14 and added in item No. 17 in Sy. No. 83/3 is

Ac. 00.65 cents. It further submits that Bayyamma and her daughter Salamma have no right in the properties as Thatti

Gangul Reddy died prior to 1938 i.e., Women’s right to the properties Act 1938. The defendant No.5 filed written statement along with schedule and also filed Additional 12 written statement. Adoption memo filed by D6, D12, D25 and D26 adopting the written statement of D5.

D25 and D26 have not filed any separate written statement. There was subdivision of the lands shown as item No. 7 to 13 and 17 of the suit properties in the year 1974 by the revenue officials as per the enjoyment of the co owners. The description of the survey numbers shown as item No.7 to 13 and 17 are not correct and survey numbers are not in existence. The plaintiffs have suppressed the subdivision of the lands. Pedda Erukulamma and Chinna

Erukulamma were entitle to and were in possession and enjoyment of the lands in Sy.No.6-5 Ac.1.03 cents, 6/6 Ac.

00.15 cents, 6/9 is Ac.2.10 cents, Sy. No. 7/14 is Ac.00.20 cents, 7/15 is Ac.00.10 cents, Sy.No.54/2A is Ac.00.14 cents, Sy. No. 663-1A, is Ac.00.08 cents, Sy. No.63/1R is

Ac.00.46 cents, Sy. No.80/7 is Ac.00.30 cents, Sy. No. 82/2 is Ac.00.25 cents and Ac00.20 cents and other properties.

The B schedule lands are divided and said lands are not joint. On 05.07.1977 the co owners have executed an agreement in respect of B schedule. As per the agreement they have been enjoying the same. The plaintiffs are not entitled to seek for the division of item No. 7 to 13 and 17.

The suit is bad for non joinder of Pedda Erukulamma and

Chinna Erukulamma, younger brother and sisters of second plaintiff and their mother Yellamma and co owners.

13

The defendants No. 25 and 26 have preferred second appeal against the decree and judgment in A.S. No.

97/1998 which is still pending. The defendant No. 8 filed written statement denying the plaint averments. The defendant father is entitled to an extent 1/24th share in A and B schedule properties item and in item No. 13. The father of the defendant purchased an extent of Ac. 00.25 cents from one T. Seethanna and his sons Bayya Reddy under registered sale deed Dt: 14.07.1955. Venkata Reddy was in possession and enjoyment of the same. The defendant is entitled 1/24th share and in addition to that Ac.

00.25 cents in item No. 13 of A schedule. This defendant has no objection to divide the suit properties and to allot his share.

The defendant No. 14 filed written statement denying the plaint averments. She has purchased an extent Ac. 00.56 cents item No. 7 in Sy. No. 82/1 and in Sy.

No. 82/2 including the usage of the road under registered sale deed Dt: 09.03.1983. She never objected for partition of the same.

The defendant No. 15 filed written statement denying the plaint averments. The defendant is a bonafide purchaser of item No. 10 and 11. The 14 defendants have purchased Ac. 00.11 cents in Sy. No. 6-5-

A. The defendant is also purchased an extent Ac. 00.47 cents in S. No. 4-2D and Ac.00.20 cents in Sy. No.6-2 for

Rs. 6,200/- from Yellamma. The defendant purchased full extent Ac. 00.57 cents in S.No. 4-2B from Yellamma and her son Nallapa Reddy under registered sale deed Dt:

14.12.1979. The defendant also purchased Ac. 00.45 cents in S. No. 4-2C and another extent of Ac.00.25 cents in S.

No. 6-1. Thatti Erukala Reddy purchased under registered sale deed Dt: 14.12.1979. She has purchased an extent

Ac. 00.11 cents in S.No.6-5. They have purchased the property covered sale deed Dt: 15.12.1979 jointly. This defendant has been in possession and enjoyment of extent purchased by her. This defendant has purchased item No.

10 to 11 in A schedule. The same dividing in to house plots and it was approved by the Grama Panchayath

Basinikonda. The defendants have also a raised Zinc sheet roofed house for their residential purpose. She lost original sale deed as such not filed the original sale deed. The plaintiffs are not entitled to the reliefs as prayed for.

The defendant No. 16 and 17 filed written statement denying the plaint averments. The plaintiffs and her two daughters and D1 to D13 had succeeded the joint family properties for their respective share and divided some of the properties of the family through an agreement 15

Dt: 05.07.1977. In the said division the vendor of his

defendants have been allotted to Sy. No. 4/2E an extent Ac.

00.72 cents and in S. No. 6-3 is Ac. 00.34 cents. In S. No.

5/5B in Ac. 00.22 cents along with other properties. The defendants have purchased entire extents in survey number jointly through registered sale deed Dt: 14.12.1979, 15.12.1979 and 15.12.1979 respectively. The Revenue authorities have issued pass book and title deed to third defendants. These defendants have divided said properties through a registered partition deed. D16 have constructed a house in the property fell to her share and D17 kept his share of property as vacant site. This defendants prays the suit is liable to dismissed.

The defendant No. 19 filed written statement denying the plaint averments. The co-owners are enjoying their extent approximately to their shares and properties are not divided. This defendant has purchased in A schedule from D10 under registered sale deed Dt:

17.03.1997. This defendant also purchased B schedule from

D12 under registered sale deed Dt: 09.02.1989. This defendant has no objection for partition and separate possession of the same. The defendant No. 27 filed written statement denying the plaint averments. T. Sivamma is entitle to 1/12th share in suit properties. The said

Sivamma has sold the property in Sy. No. 78 paiki Ac.

16 00.10 cents and Sy. No. 80 paiki Ac. 00.13 cents in item

No. 16 of A schedule. On 20.06.1983 sale deeds executed in favour this defendant. This defendant is in possession and enjoyment of Ac. 00.13 cents in item No. 16 in A schedule Ac. 00.10 cents in Sy. No. 78/4 of Basinikonda

Village. This defendant is ready and willing to cooperate for amicable partition.

The defendant No.28 filed written statement denying the plaint averments. Thatti Sidda Reddy had purchased several suit properties in the said properties. The plaintiffs and other are claiming joint share. D5 and D6 are entitled for 1/8th share and D28 and D29 are entitled for other 1/8th share in the suit properties. The plaintiffs have not shown the share of each defendant in the suit lands. In item No.10

Makkam family are entitled Ac.00.17 cents and they are not shown as parties.

They have sold away Ac. 6.03 cents retaining Ac.00.17 cents to Thatti Sidda Reddy under registered sale deed.

Makamm Family members are necessary parties. This defendant is not a party in O.S.No.724/1980 and said judgment is not binding on this defendant. The plaintiffs are not in joint possession of the extents claimed by them.

The defendants pray the suit is liable to be dismissed. D27 17 filed Additional written statement denying the plaint averments. He has purchased the item No. 14 and 16 from

D4 and her daughters on 20.06.1983 and they have executed sale deed in favour of D27. This defendant is entitled Ac.00.10 cents in Sy. No. 78 and Ac.00.13 cents in

Sy.No.80 of Basinikonda Revenue Village. This defendants prays to pass a preliminary decree by allotting Ac.00.10 cents in Sy.No.78 and Ac.00.13 cents in Sy. No. 80 to this defendants.

The defendant No. 51 filed written statement denying the plaint averments. It is true that the defendants 48 to 50 have no right or title is any interest in the suit property. Pedda Erukulamma is entitled for half share in his father’s 1/6th share which is equal to 1/12th share. It is further submitted that D25 during her life time had executed a registered will in favour of D51 and infavour of her daughter Shankaramma in respect of the properties owned by her. The properties were divided into 2 schedule under will and A schedule properties were bequeathed to D51 and B schedule properties were bequeathed to her daughter Shankaramma. D48 to D50 are the LR’s of said Shankaramma. D51 alone is entitled 1/6th share as per the will executed by Pedda Erukulamma on 10.02.1976. There is no partition deed or sub division proceedings for the plaint schedule properties. There is no 18 necessary for the partition of the properties again and basing on the possession the revenue authorities sub divided the lands. There is no cause of action to file the suit. The plaintiffs ought to have filed suit for declaration.

The suit claim is barred by limitation. The suit is liable to be dismissed. The defendant No. 52 filed Additional written statement denying the plaint averments. Chinna

Erukulamma had executed a registered document Dt:

19.09.2003 in favour of K. Parvathamma she is entitled 1/3rd share and another 2/3rd share to her son Chinna Yella

Reddy. After death of Chinna Erukulamma came in to force and D52 is entitled to 1/3rd share. He is entitled 2/3rd share out of 1/3rd share of the suit properties. Both D51 and D52 are enjoying their shares separately. The suit is bad for non joinder of necessary parties. The defendant No. 53 filed written statement and counter claim on 14.06.2010 seeking partition of the Plaint A schedule property to allot share to the D53 as per the registered will Dt: 24.04.1974 and also filed Additional written statement. This defendants submits that plaintiff will get only 1/6th share and properties are divided into 6 share among six families.

This defendant not aware of the suit proceedings O.S. No.

724/1980 and A.S. No. 97/1998. The plaintiffs in collusion with the some of the defendants filed the suit. They have got knowledge registered will 24.04.1974. This defendant 19 further submits that Thatti Bayyamma out of love and affection executed a registered will 24.04.1974 in favour of her daughter Avula Balanagireddigari Salamma. The properties were devolved upon her son Avula

Balanagireddigari Venkatramana Reddy and he is in possession of the same. Defendant No. 61 to 65 are not necessary parties to the suit. This defendant prays to pass a preliminary decree in his favour and also to dismiss the suit.

The defendant No. 54 filed written statement filed denying the plaint averments. This defendant submits that the maternal grandfather Thatti Appi Reddy has gifted share in plaint B schedule properties out of love and affection to the mother this defendant Avula Achamma and her father has executed registered gift settlement deed in favour of this defendant’s mother Dt: 26.07.1961. The mother of the defendant is entitled 1/24th share in item No. 1,5,7,10,12 and 13, 1/36th share in item No. 3 and 4. 1/48th share in item No. 8,9,11,15,16 and 18, 1/96th share in item No. 17, 1/10th share in Sy. No. 64/1 and 1/5th share in Sy. No.

11/5. The mother of the defendant had been in joint possession and enjoyment of the same. The mother of the defendant has executed registered will in favour of D54 to

D57 bequeathing including suit properties. Suit is bad for non joinder of necessary parties. The defendants prays to 20 pass a decree in favour of this defendant and D55 to D57 in respect of his share.

The defendant No.59 and 60 filed written statement denying the plaint averments. D30 to D33 are the Legal representatives of D11. D40 to D47 are LR’s of

D9. On 28.04.2012 D10, 12, 30 to 33, 42 to 47 have sold 1/12th share in item No. 4,5,14 and 16 with an extent of

Ac. 00.44 cents. On 30.04.2012 this defendants have sold away 1/24th share in item No. 4, 5, 14 and 16 with an extent Ac. 00.22 cents in B schedule to D60. The defendants pray to pass a necessary orders in their favour in respect of written statement properties. D55 to D57 filed memo adopting the written statement of D54.

The defendant No. 61, 63 and 64 filed written statement and also filed adoption memo by D62 and D65 and denied the plaint averments. Thatti Venkatramana

Reddy died leaving behind his wife T. Sivamma D4 and two daughters Salamma given in marriage to Avula

Balanagireddigari Nagi Reddy and begotten three sons namely Venkatramana D53, Venkata Reddy, D61 and

Krishna Reddy died Ramalakshmi D62. The younger brother of D61 Krishna Reddy died leaving behind him his wife

Rukminamma D63 and two daughters Aswani and Amala

D64 and D65. The parents of the D61 and D62 died 21 instestate. This defendants are entitled 3/4th share and D53 is entitled 1/4th share in the suit properties as mentioned in the registered will got executed by Bayyamma in favour of

Salamma. This defendants co owners in the suit properties and they are not added in the present suit. The suit is bad for non joinder of necessary parties.

This defendants and his brothers and plaintiffs have been in joint possession of the same. This defendants prays to pass a preliminary decree in their favour as per the registered will Dt: 24.04.1974.

04. The court framed the following issues and

additional issues basing on the material available on record

and also counter claim filed by D53 for the purpose of trial.

1.Whether the plaintiffs are entitled for 1/3rd share in the plaint A and B schedule properties?

2.Whether the Pedda Yerukulamma and Chinna

Yerukulamma, the daughters of late Thatti Appala Reddy are entitled for 1/6th share in the suit properties?

3.Whether the lands shown as items 7 to 13 and 17 in the plaint A schedule are not joint and sub divided?

4.Whether the defendants 5 to 7 and others have perfected their right and title to the properties that are in their possession after sub division, by adverse possession?

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5.Whether the suit lands shown as items 1 to 6, 14 to 26 of the plaint A schedule and the lands described in the plaint

B schedule are not joint and are divided?

6.Whether there was division of some of the plaint schedule properties between the plaintiffs, the defendants 5 to 7 and other co-owners under an agreement (partition agreement) Dt: 05.07.1977 and in the said division the plaintiff, the defendants 5 to 7 and other defendants are allotted the items 2 and 4 of the plaint A schedule and

Pedda Yerukulamma and Chinna Yerukulamma were allotted items 1 and 3 of the plaint B schedule and items 5 of the plaint B schedule was allotted to the share of Thatti

Venkatramana Reddy, the husband of the 4th defendant and the Thatti Nagaraja?

7.Whether the suit is bad for non joinder of Pedda

Yerukulamma and Chinna Yerukulamma, their younger brother, sisters of the 2nd plaintiff and their mother and other co sharers whose names are mentioned in the written statement schedule?

8.Whether the plaintiffs Pedda Yerukulamma, Chinna

Yerukulamma and other co owners have sold items 10 and 11 of the plaint A schedule to Smt. P . Anitha Reddy, W/o

Venkatramana Reddy under registered sale deed Dt:

19.12.1979 and Smt. P. Anitha Reddy is in Possession of the same?

9.To what relief.

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Additional Issues framed on 31.01.2011.

1.Whether the finding in A.S. No. 97/1978 on the file of this court operates as Resjudicata?

2.Whether the D25 and D26 are debarred from re-agitating the same matter.

Additional Issues framed on 20.03.2017.

1.Whether the Thatti Bayyamma s/o T. Gangul Reddy has executed a registered will Dt: 24.04.1974 in respect of plaint A and B schedule properties?

2.Whether the mother of the defendants 61 to 65 is necessary parties to the suit?

3.Whether the suit is bad for non joinder of co owners?

4.Whether the defendants 61 to 65 are entitled to share in the suit property?

Additional issue Framed on 24.04.2017

1. Whether the D53 is entitled to pass a preliminary decree against the plaintiffs and other defendants basing on the registered will Dt:

24.04.1974?

5. During the course of trial on behalf of the plaintiffs PW1 to PW5 were examined and Ex. A1 to Ex. A17 24 were marked. On behalf of defendants DW1 to DW16 were examined and Ex. B1 to Ex. B42 were marked.

6. Heard the oral arguments on behalf of the plaintiffs and the defendants. The plaintiffs counsel and some of the defendants counsel filed written arguments.

Issues No. 1 to 8 and Additional Issues:

7. The first plaintiff has examined as PW1 and

Ex. A1 to Ex. A8 were marked. PW1 was cross examined in part and his evidence is incomplete due to death of PW1.

The 2nd plaintiff has examined as PW2 and marked Ex. A9 to

A14 were marked. Ex. B41 certified copy of sale deed Dt:

18.12.1979 is marked during the cross examination of PW2.

One Pujari Akkulappa has examined as PW3 to prove the joint status of the plaint schedule properties between the plaintiffs and some of the defendants. One T.

Venkataramana Reddy has examined as PW4 to prove that he sold away major portion of share to the 2nd defendant Thatti Appoji Reddy, Thatti Gangul Reddy, The deceased first plaintiff covered under Ex. B3 and Ex. B4 sale deeds. PW5 is namely Thatti Reddi Sekhar Reddy (3rd plaintiff) has examined as PW5 and marked Ex. A17 which is the original registered sale deed Dt: 14.05.1973 executed 25 by Avula Achamma in favour of his father Thatti Gangul

Reddy.

8. The second defendant has examined as DW1 and marked Ex. B3 is the certified copy of registered sale deed executed by T. Venkataramana Reddy (D24) in his favour. Ex. B4 is the certified copy of registered sale deed executed by T. Venkataramana Reddy (D24) Dt:

08.04.1982. Ex. B1 is the certified copy of sale deed Dt:

28.04.2012 and Ex. B2 certified copy of sale deed Dt:

30.04.2012 were marked during the cross examination of

PW2. The fourth defendant has examined as DW2. The fifth defendant is namely Thatti Sidda Reddy has examined as DW3 who is son in law of D25 through him marked

Ex. B5 is the original registered sale deed Dt: 20.10.1915 executed by Makam Chinna Venkata Swamy S/o Narayana

Swamy Setty in favour of Late. Thatti Sidda Reddy and Ex.

B6 is the certified copy of unregistered partition deed Dt:

05.07.1977 which is marked for limited purpose.

Defendant No. 19 is namely Cherakuravulavaripalle Sujatha has examined as DW4 and marked Ex. B7 is the certified copy of registered sale deed Dt: 09.02.1989 executed by the D12 in her favour. Ex. B8 is the certified copy of registered sale deed Dt: 17.03.1983 executed by D10 in her favour. The husband of the DW4 has examined as DW5 to support the case of DW4.

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The defendant No. 54 is namely Avula Venkata

Ramana Reddy has examined as DW6 and marked B9 to Ex.

B13. One Muliniti Venkata Reddy has examined as DW7 to identify his signature as attestor in which containing on

Ex. B12 registered will Dt: 09.08.2012. The another attestor of Ex. B12 is namely Shaik Abdul Rahiman has examined as DW8. Defendant No. 27 is namely Kappala

Akkulappa has examined as DW9 and marked Ex. B17 is the registration copy of the sale deed Dt: 20.06.1983 executed by D4 and her daughters in favour of D27. Ex. B18 is the 1B Namuna obtained from Meeseva subject to objection.

Defendant No. 53 is namely Poreddi Chinna Yella Reddy examined as DW10 and marked Ex. B19 to Ex. B37 which are marked subject to objection. Defendant No. 59 is namely Gangasani Devendra Reddy has examined as DW11 and marked Ex. B38 is the certified Xerox copy of registered sale deed Dt: 28.04.2012 executed by defendant no. 10, 12, 30 to 33, and 42 to 47 in favour of DW1. Ex. B39 is the Pattadar Pass Book issued in his name. Defendant no.

60 is namely Nimmanapalle Irfan khan has examined as

DW12 and marked Ex. B40 is the Pattadar Pass Book issued in his name. Defendant 15 has filed Chief Affidavit but did not turn-up for cross examination.

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Defendant No. 53 is namely Avula Balanagiri

Reddi Gari Venkataramana Reddy has examined as DW14 and marked Ex. B42 is the original will Dt: 24.04.1974 executed by T. Bayyamma in favour of his mother

Salamma. DW15 is the second attestor's son of Ex. B42 is namely Avula Jayasind Reddy to identify his father signature containing on the will. The defendant No. 61 has examined as DW16 who is the son in law of D4 and younger brother of D54 to D56.

9. The facts are not in dispute. The plaintiff

No.1 and the father of the plaintiff No.2 by name Bayya

Reddy are brothers being the sons of late Seetharami

Reddy. Seetharami Reddy had a brother by name Appala

Reddy. Appala Reddy had no sons and had only two daughters namely Pedda Erukulamma and Chinna

Erukulamma i.e., D25 and D26. Both Appala Reddy and

Seetharami Reddy had members of joint Hindu family members and Appala Reddy acted as a joint family manager. Admittedly Appala Reddy died in the year 1932 intestate and his wife Achamma died in the year 1942.

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10. The dispute arose between the plaintiffs No.

1 and 2 and D25 and D26 with regard to plaint schedule properties. The plaintiffs No. 1 and 2 have filed a suit in

O.S. No. 724/1980 on the file of First Additional District

Munsif Madanapalle for permanent injunction against the defendants No. 25 and 26 not to interfere with their peaceful possession and enjoyment of plaint schedule properties. The said suit was decreed in favour of plaintiffs.

The aggrieved parties preferred appeal AS. No. 54/1993 on the file of Hon’ble II Additional District Judge, Madanapalle and same was transferred and numbered as AS.No.

97/1998 on the file of Sub Court Madanapalle. In the said appeal it was observed that the plaintiffs herein are the owners and they have got right and title to the share claimed by them in the suit properties and denied the contention of the D25 and D26.

11. In view of the said observation the plaintiffs

No. 1 and 2 herein have filed suit against defendants for partition of plaint A and B schedule properties situated at

Basinikonda Village and that B.K. Palle Village. During pendency of the suit first plaintiff died intestate on 16.12.2011 leaving behind him the plaintiffs 3 and 4 who are his son and daughter as his Legal Representatives.

The plaintiffs 3 and 4 have succeeded to the share of the 29 first plaintiff in the suit properties. Subsequently the defendants No. 24 to 65 were added as per the orders of the different Interlocutory Applications.

The relationship of the parties not in dispute.

The defendant no.2 is contended that there was no demand of partition by the plaintiffs. The plaintiffs have not issued legal notice prior to the filing of the suit. Defendant No. 2 had purchased the land by way of two registered sale deed

Dt: 30.09.1980 and 08.04.1982 in respect of 1/15th share

and originally the D2 is also entitled to his share and in total D2 is entitled 1/18th share. D2 in his written statement in para No. 5 admitted that the share of plaintiffs 1/3rd share in ancestral properties. Defendant No.4

Sivamma in her written statement claiming that she is entitled to 1/12th share in joint possession of the plaint schedule properties. She further contended that she is not a party in O.S. No. 724/1980 and that plaintiffs never demanded her for partition of the suit properties. She got it mentioned in the written statement she has no objection for partition of the plaint schedule properties.

12. Defendant No. 5 clearly admitted in the written statement stating that Appala Reddy died in the year 1932 leaving behind him his wife and two daughters 30 are namely Pedda Erukulamma and Chinna Erukulamma i.e., D25 and D26. D5 further contended that after death of Appala Reddy his wife Achamma succeeded and became entitled property as per law. Achamma was in possession of her husband share. He further admitted that Achamma died in the year 1942. She was enjoyed 1/6th share in the suit properties and after the death of Achamma the property had devolved upon D25 and D26 in respect of her 1/6th share, the same was subdivided in the revenue records in the year 1974 in respect of item No. 7 to 13 and

17. He further contended that D5 and D6 and D7 are entitled to 1/12th share and they are in possession and enjoyment of the same. They further contend that they have perfected their title over the item No. 7 to 13 and 17 and same was not in joint. On 05.07.1977 executed agreement between plaintiffs, defendants, Pedda

Erukulamma and Chinna Erukulamma have also got executed agreement in respect of B schedule property and other properties. As per the agreement they have sold away some extents by the plaintiffs and they are not entitled to seek for division of the item No. 7 to 13 and 17.

It further contended that plaintiffs are not entitled to 1/3rd share and suit is bad for non joinder of Pedda Erukulamma and Chinna Erukulamma and younger brother, sisters and mother of the second plaintiff. The defendant No. 5 got it 31 mentioned schedule properties in his written statement. D5 written statement was adopted by D6, D12, D25 and D26.

13. Defendant No. 8 is contending that D8 father is entitled to 1/24th share. The defendant No. 8 father had purchased item No. 13 in Sy. No. 63/1 with an extent Ac.

00.25 cents by way of registered sale deed Dt: 14.07.1955.

Defendant No. 8 clearly admitted that he has no objection for partition of the plaint schedule properties.

14. Defendant No. 14 in her written statement contended that she has purchased an extent of Ac. 00.56 cents in Sy. No. 7 and in Sy. No. 82/1 and in Sy. No. 82/2 with a right of passage under the registered sale deed Dt:

09.03.1983 and she has been in possession and enjoyment of the same. She further submits that she has no objection for partition of the plaint schedule property.

15. Defendant No. 15 submits that she has purchased the property an extent of Ac. 00.11 cents in Sy. No. 6/5A.

The defendant also purchased an extent Ac. 00.47 cents in

Sy. No. 4/2D and Ac. 00.20 cents in Sy. No. 6/2 under registered sale deed Dt: 14.02.1979. This defendant also purchased an extent Ac. 00.57 cents in Sy. No. 4/2B under 32 registered sale deed Dt: 14.12.1979. This defendant also purchased Ac. 00.45 cents in Sy. No. 4/2C and another extent of Ac. 00.25 cents in Sy. No. 6/1 from Thatti Erukala

Reddy under registered sale deed Dt: 14.12.1979.

16. The defendant No. 16 and 17 contended that they have purchased joint extent by way of registered sale deed

Dt: 14.12.1979, 15.12.1979 and 15.12.1979.

17. The defendant No. 19 submits that defendant No.

5 to 13 are entitled and they are in possession and enjoyment of 1/3rd share and she has no objection for partition of the suit property. She has purchased B schedule property from D12 under registered sale deed Dt:

09.02.1989 and also purchased from Defendant No. 10 by way of registered sale deed Dt: 17.03.1993.

18. The defendant No. 27 had no objection for partition of the same and also to separate the Ac.00.12 cents in item No. 16 of A schedule purchased by him from the suit property.

19. Defendant No. 28 submits that D5 and D6 are entitled to 1/8th share and defendant No. 28 and 29 are entitled to other 1/8th share in the suit properties. In item

No. 10 of Makam family are entitled to joint share and they 33 possessed Ac. 00.17 cents. They have not made as parties to the suit. This defendant is in separate possession of the said extent.

20. The defendant No. 51 filed the written statement.

As per section 14 of Hindu Succession Act D25 and D26 have become absolute owners of the suit property. The rights of the parties will be decided and the plaintiffs ought to have filed suit for declaration in respect of 1/6th share.

D25 and D26 are entitled to 1/6th share. D48 to D50 have no right over the suit property.

21. Defendant 52 submits that Chinna Erukulamma executed registered will Dt: 19.09.2003 in favour of K.

Parvathamma. She is entitled to 1/3rd share and another 2/3rd share to her son Chinna Yella Reddy (D51). D52 is entitled to 1/3rd share. Defendant No. 51 is the elder brother of said Parvathamma and he is entitled to 2/3rd share out of 1/3rd share. D51 and D52 are enjoying their respective shares.

22. Defendant No. 53 filed written statement and also counter claim under order 8 Rule 6(A) CPC. He contended that plaintiffs will get only 1/6th share. The properties shall be divided in to 6 shares and each family is entitled to 1/6th 34 share. On 24.04.1974 Thatti Bayyamma executed registered Will Dt: 24.04.1974 in favour of her daughters

Avula Balanagireddigari Salamma bequeathing her properties and after death of said Thatti Bayyamma the properties devolved upon Avula Balanagireddigari Salamma and after death of Salamma D53 succeeded to the said properties by virtue of will Dt: 24.04.1974. D53 prays to direct the plaintiffs and other defendants to cooperate for division and partition of A and B schedule properties.

23. Defendant No. 54 submits that the maternal grandfather Thatti Appi Reddy has gifted share in A schedule to the mother of the this defendant Avula

Achamma and her father has executed registered gift settlement deed in favour of this defendant’s mother in respect of A schedule. The mother of this defendant is entitled to 1/24th share in item No. 1,5, 7, 10, 12, 13, 1/36th share in item No. 3 and 4, 1/40th share in item No.

8,9,11,15,16,18, 1/96th share in item No. 17, item No.

1/10th share in Sy. No. 64/1 and 1/5th share in Sy. No. 11/5 of Basinikonda village by virtue of registered gift deed Dt:

26.07.1961. This defendant further submits that the grandfather of this defendant has executed gift settlement deed Dt: 26.07.1961 in respect of B schedule. His mother is entitled to 1/24th share in item No. 1,2,3,4, and 1/5th share 35 in item No. 5 of the plaint B schedule. Avula Achamma has executed Will Dt: 09.08.2012 in favour of D54 to D57.

24. Defendant No. 55 to D57 submits that on 30.04.2012 the defendants 54 to 58 and their mother late

Achamma have sold 1/24th share in item No. 4,5,14 and 16 with an extent of Ac. 00.22 cents of B schedule of the written statement.

25. Defendant No. 61 to D65 submits that the defendants are entitled 3/4th share and D53 is entitled to 1/4th share in the properties mentioned in the registered will got executed by Bayyamma in favour of Salamma.

26. Whether the plaintiffs are entitled to 1/3rd share in the plaint A and B schedule properties. Whether the D25 and D26 who are the daughters of late Thatti Appala Reddy are entitled to 1/6th share. Whether the suit properties are not joint and subdivided. Whether the suit is bad for non joinder of necessary parties. The learned defendant Nos.

5,6,12,25 and 26 counsel submitted that plaintiffs have not filed any document to claim their 1/3rd share in the plaint A and B schedule properties. The plaintiffs ought to have filed a suit for declaration and recovery of possession of their alleged share in the suit property. In a suit for permanent injunction the court ought not have observed that the 36 plaintiffs (Thatti Gangul Reddy and Thatti Chandra Reddy) are found to be owners of the schedule property and further observed the suit in O.S. No. 724/1980 filed by the Gangul

Reddy and Chandra Reddy was dismissed in A.S. No.

97/1998 on 31.07.2000. It is settle principal of law in a suit for permanent injunction the court must see the title of the parties incidentally and the main point for consideration is whether the plaintiffs are in possession and enjoyment of suit property as on the date of filing of the suit only.

27. The defendants counsel further submitted that the main dispute is between plaintiffs and defendants 25 and 26 and their LR’s with regard to share of Thatti Appala

Reddy son of Gangul Reddy. Whether the Thatti Appala

Reddy had lived together along with the brother Seetharami

Reddy by the time of death of Thatti Appala Reddy. It is not in dispute Thatti Appala Reddy died in the year 1932.

The said Thatti Appala Reddy had no issues and leaving behind him his wife T. Achamma is the only surveying legal heir. Admittedly Achamma died in the year 1942. As on the date of death of Appala Reddy in the year 1932. The Act

Hindu Woman’s Right to property Act 1937 will apply. As per Section 3 (3) of Hindu Women right to property Act “any interest devolving on Hindu widow under the provisions of this Section shall be the limited interest known 37 as a Hindu Woman’s estate, provided whoever that she shall have the same right of claiming partition to a male owner. The Hindu Women’s Rights to property Act,1937, was a lands mark in the development of Hindu Law during the Pre-Independence era. It conferred new rights on widows by placing them on the same level as the male issue of the last full owner, making inter alia the widow a simultaneous with their son. The Act also gave a joint to the operation of the rule of survivorship in regard to

Mitakshara coparcenary property. The rule of survivorship, by giving the widow her husband’s interest in the joint family property and suspending its operation in favour of the other coparceners. The widow took however only a limited estate. As per the above provision after the death of Thatti Achamma the share of Thatti Appala Reddy shall be reverted back to the Seetharami Reddy Branch. The defendants counsel submitted that the plaintiffs 1 and 2 are out of possession of 1/6th share. The said appeal No.

97/1998 was allowed on 31.07.2000. The plaintiffs have not chosen to amend the plaint after disposal of the AS. No.

97/1998. The plaintiffs have not chosen to pay court fee for cancellation of sale deed executed in favour of third parties and also for demolishing of the building constructed by the

D18. The defendants counsel further submitted that the suit properties are not in joint possession. The co-owners 38 shall be included in the suit, due to non joiner of co sharers the suit shall be dismissed. The plaint schedule does not contain existing building in the D18 property. The plaintiff sold away some property and they are not shown as parties.

28. The plaintiffs counsel submitted that originally suit was filed against D1 to D23. The purchasers of the suit property were shown as D14 to D23. It is not in dispute D1 to D13 are the original sharers along with plaintiffs. D24 himself came on record by filing Order 1

Rule 10 of CPC petition. D25 and D26 are also came on record as per the order in I.A. No. 320/1996 Dt:

12.02.1997. During the pendency of suit D25 and D26 are died. D48 to D50 being the LR’s of D25. D51 and D52 are being the LR’s of D26. D1 to D3 are the sons of Thatti

Chinna Obula Reddy. The case of the plaintiffs is that the suit properties are the ancestral properties of plaintiffs family Seetharami Reddy and Thatti Appala Reddy had put together entitled to 1/3rd share. The first plaintiff and father of the second plaintiff are the sons of Seetharami

Reddy. They were lived together as joint family and Thatti

Appala Reddy was acted as manager of the joint family.

Thatti Appala Reddy and Achamma had two daughters 39 namely Pedda Erukulamma and Chinna Erukulamma i.e.,

D25 and D26.

29. The plaintiffs counsel further submitted that first plaintiff and second plaintiff got issued legal notice through their counsel Dt: 23.02.1980 to the defendant No. 25 and

D26. They have received Ex. A7 legal notice but they have not chosen to give reply. Merely non issuance of reply it does not mean D25 and D26 have admitted the contents of the Ex. A7. The said legal notice contains after the death of Thatti Appala Reddy his share in all the family properties had devolved upon his sole surveying brother

Seetharami Reddy by the Law of Surveyorship. It further contains Thatti Appala Reddy died in the year 1932 in undivided status leaving behind him his wife Achamma and his two daughters i.e., D25 and D26 and he had no sons.

Para No. 3 of the Ex. A7 contains Achamma had only a right of maintenance and she expressed the desire to live separately and wanted some property to be given to her to be enjoyed during her life time for maintenance. She was give half share in the property owned by the family in Sy.

No. 431/1, 446 and 434 (B schedule item No. 1 to 3) locally called as Eguva Kuntalu and Diguva Kuntalu of Bandameeda

Kammapalle for her maintenance to reverted to them after her death.

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30. Ex. A1 is the certified Xerox copy of registered sale deed executed by Venkataramana Reddy in favour of Thatti Appala Reddy Dt: 30.09.1930 in respect of land situated at B.K. Palle revenue village and Basinikonda

Village and it covers survey numbers of the suit properties.

Ex. A2 certified copy of the death register extract clearly shows Thatti Appala Reddy died on 28.03.1932. Ex. A3 is the certified Xerox copy of 10-1 Account for Sy. No. 6 extent Ac. 6-20 cents and it contain names Thatti Maddi

Reddy and Makam Subba Raju and Thatti Seethanna as pattadars. Ex. A4 is the certified Xerox copy 10-1 Account for Sy. No. 445 and 483 stands in the name of Seethanna and Chinna Obula Reddy, Venkata Reddy, T. Venkatramana

Reddy and Parikala Reddy. Ex A5 is the certified xerox copy of 10(1) extract for Sy. No.445 and 483 of B.K.Palle and it stands in the name of Seethanna, Chinnaobul Reddy

Venkatareddy, Venkatramana Reddy and Parikela Reddy for an extent of 16.04 cents. Ex. A6 is the certified Xerox copy of 10-1 stands in the name of Thatti Maddi Reddy, Obula

Reddy, Appi Reddy, Seethanna, Chinna Obula Reddy and covered survey numbers 431/1,446 and 434 lands situated at B.K. Palle. Ex A7 is the certified xerox copy of legal notice Dt::23-2-1980 got issued by the plaintiffs 1 and 2 to the D25 and 26 Ex. A8 is the certified Xerox copy of acknowledgement in respect of Ex. A7 legal notice showing 41

D25 and D26 received the Ex. A7 legal notice. Ex. A9 is the certified copy of plaint in O.S. No. 724/1980 filed by plaintiff No. 1 and 2 on the file of District Munsif against the

D25 and D26. Ex. A10 is the certified copy of written statement filed in O.S. No. 724/1980. Para no. 3 of the written statement clearly admitted that It is true that said

Thatti Appala Reddy is the elder brother of Seetharami

Reddy who is the father of the first plaintiff and the grandfather of second plaintiff and that they were members of a joint Hindu family. D25 and D26 have clearly admitted the relationship of the parties and they were joint family members. They further pleaded that Thatti Appala

Reddy and Seetharami Reddy were entitled to 1/3rd share in the properties mentioned in the plaint A and B schedule and as such Thatti Appala Reddy entitled to 1/6th share in the said property. It was further pleaded that the lands were not subdivided by that time she and the other co-owners including Seetharami Reddy were cultivating and in possession of separate extents for conveniance of cultivation. Ex. A11 is the certified copy of decree in O.S.

No. 724/1980. It was observed that defendants are restrained from interfering with plaintiffs possession and enjoyment of suit properties. Ex. A12 is the certified copy of judgment in O.S. No. 724/1980. Ex. A13 and Ex. A14 are the certified copies of decree and judgment in O.S.

42

No.724/1980 and A.S. No. 97/1998. The said appeal was allowed and suit was dismissed. In para No. 63 of the judgment after the death of her husband Thatti Appala

Reddy in 1932 she got only limited interest which is called widow estate. The property it was inherited by her is only for limited purpose of enjoyment and after her death in 1942 the property reverted back to the reversions i.e., the heirs of Thatti Appala Reddy brother Seetharami Reddy.

Ex. A15 is the certified copy of registered partition deed Dt:

04.03.2010 between Thatti Sidda Reddy and Thatti Uthama

Reddy. Ex. A16 is the certified copy of registered partition deed Dt: 06.03.2010 between Thatti Uthama Reddy, Devi,

Pujitha, Krushitha, Ramanamma, Sudha Rani and

Ramadevi. Ex. A15 and Ex. A16 documents came into existence during the pendency of the suit. Ex. A17 is the registered sale deed executed by Avula Achamma in favour of Thatti Gangul Reddy Dt: 14.05.1973. Ex. A17 marked through the PW5. Admittedly there is no pleading in the plaint averments about Ex. A17.

31. PW2 has identified his signature as 2nd attestor on the original of Ex. B1. Ex. B1 is the signature portion containing on the Certified Xerox copy of registered sale deed Dt: 28.04.2012 executed by Thatti Achamma and others in favour of Gangasani Devendra Reddy. Ex. B2 is 43 the signature of the PW2 as a first attestor on the original of registered sale deed Dt: 30.4.2012 executed by Avula

Achamma and others in favour of Nimmanapalle Irfan Khan.

It is evidently clearly Ex. B1 and Ex. B2 sale deeds came in to force during the pendency of suit. Ex. B3 is the certified copy of registered sale deed Dt: 30.09.1980 executed by

D24 in favour of D2. Ex. B4 is the certified copy of registered sale deed Dt: 08.04.1982 executed by D24 in favour of D2. Ex. B5 is the original sale deed Dt:

20.10.1915 executed by Makkam Chinna Venkata Swamy in favour of Thatti Sidda Reddy which is marked through

DW3. Ex. B5 is the more than 30 years document. Ex.

B6 is the certified copy of the partition agreement Dt:

05.07.1977 which is marked for limited purpose. The plaintiffs counsel totally denied the execution of the original of Ex. B6. The recital of the document speaks the shares are allotted as per the A, B and C schedule. Ex. B7 is the registered sale deed Dt: 09.02.1989 executed by D12 in favour of D19. Ex. B8 is the certified copy of registered sale deed Dt: 17.03.1983 executed in favour of D19. Ex.

B9 is the certified copy of RH page issued by SRO

Madanapalle from the period 1915 to 1955 of Basinikonda

Village and it contains name Thatti Sidda Reddy, Pujitha

Reddy, Venkata Reddy and Appi Reddy. Ex. B10 is the registration copy of the registered gift deed executed by 44

Thatti Appi Reddy in favour of Achamma for an extent of Ac.

4.75 cents of B.K. Palle. Ex. B11 is the registration copy of registered gift deed Dt: 26.07.1961 and enclosing the

Encumbrance certificate contain names Avula Achamma and

Thatti Appi Reddy. Ex. B12 is the registered will Dt:

09.08.2012 executed by Achamma in favour of her sons.

Ex. B12 was executed during the pendency of suit. Ex.

B13 is the Death certificate of Avula Achamma stating that she died on 01.10.2012. Ex. B14 is the original registered sale deed Dt: 30.04.2012 executed by Avula Achamma and others in favour of N. Irfan Khan. Ex. B15 is the served copy of the legal notice Dt: 25.07.2012 issued by D54 and

D58 to D60 calling for cancellation of the registered sale deed Dt: 30.04.2012. Ex. B15 is the legal notice issued during the pendency of the suit. Ex. B15 and Ex. B16 are exchange of legal notices was taken place during the pendency of suit. Ex. B17 is the registration copy of the sale deed Dt: 20.06.1983 executed by D4 and her daughter in favour of D27. Ex. B18 is the 1B Namuna issued by

Meeseva in favour of D27. Ex. B19 is the certified copy of mortgage deed Dt: 08.01.1960 executed by Poreddi Chinna

Erukulamma in favour of Poreddi Pedda Erukulamma. Ex.

B20 is the certified copy of settlement register it contains names Obulareddigari Obula Reddy, Thatti Appi Reddy and

T. Seethanna as pattadars. Ex. B21 is the certified copy of 45 the settlement register it contains name Thatti Achamma and Thatti Seethanna, Thatti Appi Reddy, Thatti

Nallapareddigari Obul Reddy, Thatti Maddi Reddy and some others. The land situated in Basinikonda Village in Sy. No.

47/2 is Ac. 00.79 cents and Sy. No. 77 is Ac. 1.61 cents in total Ac. 2.40 cents. Ex. B22 is the certified copy of the settlement register stands in the name of Obul Reddy,

Thatti Achamma, and Thatti Seethanna and subdivision no.

1-6 is Ac. 00.30 cents. Ex. B23 is the certified copy of settlement register stands in the name of T. Achamma, T.

Seethanna and others and it contain sub division survey numbers with extent Ac. 2.09 cents. Ex. B24 is the certified copy of settlement register stands in the name T.

Seethanna, T. Maddi Reddy and Makam Subbaraju and

Makam Subbaraju name inserted without any initial. Ex.

B25 is the certified copy of settlement register stands in the name Seethanna, Chinna Obul Reddy, Venkata Reddy, and

Venkatramana Reddy with an extent Ac. 16.04 cents. Ex.

B26 is the certified copy of settlement register stands in the name T. Maddi Reddy and Nagi Reddy, Bayya Reddy and

Erukulamma it may be Chinna Erukulamma or Pedda

Erukulamma with extent Ac. 12.03 cents. Ex. B27 is the certified copy of registered sale deed Dt: 12.07.1998 executed by Poreddi Chinna Erukulamma in favour of

Eswarappa. Ex. B28 is the certified copy of registered sale 46 deed Dt: 16.08.1979 executed by Thatti Pedda Reddeppa in favour of Punganuru Venkataramana Reddy. Ex. B29 is the certified copy of registered sale deed Dt: 14.12.1979 executed by Thatti Obulamma and her sons in favour of M.

Nagi Reddy and others. Ex. B30 is the certified copy of registered sale deed Dt: 15.12.1979 executed by Thatti

Gangul Reddy and others in favour of M. Nagi Reddy and others. Ex. B31 is the certified copy of registered sale deed

Dt: 15.12.1979 executed by T. Erukala Reddy and others

infavour M. Nagi Reddy. Ex. B32 is the certified copy of registered sale deed Dt: 15.12.1979 executed by Thatti

Gangul Reddy and others in favour of P. Anitha Reddy (D15). It appears plaintiff no. 1 and 2 have not executed

Ex. B32. Ex. B33 is the certified copy of registered sale deed Dt: 15.12.1979 executed by T. Erukala Reddy and others in favour of D15. The document executed by the D1 to D13, D25 and D26. Ex. B34 is the certified copy of registered sale deed Dt: 03.10.1981 executed by P. Yella

Reddy and others in favour of Narayana. Ex. B35 is the certified copy of registered sale deed Dt: 09.12.1982 executed by Poreddi Chinna Erukulamma and in favour of

Chinnappa. Ex. B36 is the certified copy of registered sale deed Dt: 03.08.1984 executed by Poreddi Erukulamma and her son in favour of Shaik Sardar Lal. Ex. B37 is the certified copy of registered sale deed Dt: 13.05.1985 47 executed by P. Pedda Erukulamma and others in favour of

Gold Food Industries. Ex. B38 is the registered sale deed

Dt: 28.04.2012 executed by defendants 10,12,42 to 47 and

the LR’s of D11 in favour of Devendra Reddy. Ex. B39 is the Pattadar Pass Book issued in the name of D59. Ex. B40 is the Pattadar Pass Book issued in the name of D60. Ex.

B38 to Ex. B 40 obtained during the pendency of the suit in respect of Sy. No. 77,78,79 and 80 is Ac. 1 ½ cents. Ex.

B41 is the certified copy of registered sale deed Dt:

15.12.1979 jointly executed by T. Gangul Reddy and others infavour of Anitha Reddy. Ex. B42 is the original registered will Dt: 24.4.1974 executed by Thatti Bayyamma.

32. The defendants counsel relied upon the that following decisions 2008 (3) ALD page 469 in between N.

Narayana Rao died by LR’s by v/s N. Rajeswara Rao. In a suit for partition all persons who have share in properties to be partitioned as a necessary parties. Non Impleading of such person entire dismissal of suit. As per the decision reported in 2010 (5) ALD page 339 in between

K.Bhaskara Rao, v/s K.A. Rama Rao. Hon’ble High Court observed that O1 R9 CPC necessary parties non joinder of fatal, defect cannot be cured by Impleading them in appeal.

As per another decision reported in 2012 (4) Alt page 253 in between Jahangiriji died per LR’s v/s K. Kumar. Defect of non joinder of necessary parties in the suit cannot be 48 cured by Impleading them in appeal. As per the another decision reported in 2008 (1) ALD page 347 in between

D. Dhashinamurthy v/s V. Vijaya Kumari. Non joinder of necessary parties in the absence of all the sharers decree of this nature cannot be executed and appeal dismissed due to non joinder of necessary parties. As per the another decision reported in 2012 (1) ALT page 356 in between

Avula Jayarami Reddy v/s Y. Nagarathnamma. It was observed that she did not join him as a party to the suit in partition suit. All parties having a share be joined as parties. Partition suit is not maintainable as it is non joinder of necessary party.

33. Some of the defendant’s counsels submitted that the suit is bad for non joinder of necessary parties i.e. the plaintiffs 1 and 2 have sold away property to others and the plaintiff. No.2 family members are not included as plaintiffs in the present suit. PW2 in his cross examination admitted that he is deposing evidence on behalf of all his family members. There is no conflict between the co–Plaintiffs due to non joinder of other family members. “As per the

decision reported in 2015 1 ALT page.454 in between

T Chandra Sekhar and another Vs Sunchu Rajamallu

and others.” Honourable High Court observed that petition filed under order 1 Rule 10 cpc impleadment of third parties can be impleaded even at the stage of partition 49 in Final Decree Proceedings. If he has a right in the suit property and if there is possibility if his right is being affected, if he is not added as a party. The above Principle of Law clearly applicable to the present suit facts on hand.

During pendency of the suit the necessary parties were added in the present suit. The contention of the D5 and other defendants the suit is bad for non joinder of necessary parties cannot be accepted.

The further contention of the defendant No.5 and some other defendants the suit is barred by the limitation. Appal

Reddy died in the year 1932 and leaving behind him his wife Achamma and two daughters (D25 and D26). The defendants 25 and 26 have pleaded in the written statement in earlier suit O.S.724/1980. The limitation starts after the death of Appal Reddy and they have to file suit with in 12 years i.e. 1942. The learned counsel further submitted that the Plaintiffs ought to have file suit for declaration and recovery of possession, after appeal

Judgment in Ex.A13 and Ex A14 in A.S.No.97/1998. The defendants counsel relied upon decision reported in 2008 (4) ALT page 42 in between V. Koteswara Rao v/s Muncipal

Corporation Warangal. Bar of limitation even if the opposite party does not take the plea bar of limitation court has duty to ensure that suits barred by limitation are not 50 entertained. It is settled principal of law merely defendants have not taken plea in written statement it is the duty of the court to see whether the suit is barred by limitation or not. There is no Bar to file a suit for Partition after observation of the Plaintiffs right in Appeal. “ As per

the decision reported in 2013 (5) ALT Page.312 in-

between Reddi Radhakrishna Vs Reddy Lakshmi and

others Honourable High Court observed that Limitation

Act,1963, Articles 110 and 113 when a person is excluded from joint family property and when he seeks to enforce the right to a share therein, it is Article 110 of Limitation Act applies and not article 113 which applies to suits for which there is no prescribed period of Limitation in such a case from the date on which exclusion becomes known to plaintiffs. The present suit filed in the year 1994. The defendants have failed to prove that the suit is barred by

Limitation. As per the above Article 113 there is no prescribed period to the Plaintiffs sought relief of Partition and when the defendants are not co operating for partition of suit properties only. The Parties are arrayed as Plaintiffs or defendants each party has to be treated as Plaintiff in a suit for Partition.

The learned defendants counsel further submitted that the

Plaintiffs are out of possession of the some of the items suit 51 property as observed in Ex.A14 i.e. Judgment in Appeal.

“As per the decision reported in 2014 (6) ALT

page.587 in Katta Subba Rao and another case it was observed that Joint family status in Hindu Law there is a

Legal Presumption that joint family status exists unless a pleading is made and proved by adducing evidence that there was severance of such status. Constructive possession

Hindu Law recognizes constrictive possession of ever member of joint family even though he may not be in physical possession of the joint family property. Possession of one co sharer is deemed to be the possession of all other co sharers. The above Principle of Law clearly applicable to the plaintiff’s case in view of the observation in Ex.A14 some of the items plaintiffs are not in possession.

The defendants counsel further submitted that D25 and

D26 and their L.R’s have perfected their title over the suit property. “As per the decision reported in 2004 (5)

ALT page.293 (DB). Between Kavitha Goud

Represented. By GPA Vs N. Sudharshan Reddy and

others it was observed that a member of joint family while calming absolute to a certain property as having been allotted to him in partition cannot claim taking an inconsistent plea that the acquired title to the said by adverse possession.

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34. As per the Ex.B6 unregistered partition agreement Dt: 05.07.1977 the sharers have got executed the same and admitting about the division of property.

The recitals contains the allottees are entitled to take possession of their respective shares from January 1978 and shares are allotted in A, B and C Schedule. The document discloses the clear partition between the parties and allotment of shares. It was suggested to the PW1 that on 05.07.1977 PW1 and other sharers have got executed unregistered partition agreement and divided the properties and same was denied. PW1 in his cross examination he deposed that there is no division of the properties. PW2 in his cross examination deposed that

Appal Reddy and Seetharami Reddy has got 1/3rd share in the suit property through their ancestors. The defendants counsel submitted that as per Ex. B6 the parties have got executed sale deeds in respect of B and other properties.

The plaintiffs are not entitled 1/3rd share in item No. 7 to 13 and 17 which were got subdivided long back. D5 to D7 are in possession of 1/12th share. The plaintiffs have pleaded in the plaint after the death of Appal Reddy, his share in all the family properties had devolved his sole surveying brother Seetharami Reddy by the law of surveyorship.

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35. As per the decision reported in 2004 (3) ALT page 51 in between Khaja Habeeb Huddin v/s M.D. Ibrahim and others. Hon’ble High Court observed that registration

Act u/sec. 17 and 49 unregistered partition deed.

document in question provides for the extent of shares of various persons and intends to bring about a partition such a document is partition deed. The document is not registered one. Whoever it can be received in evidence for the collateral purpose of severance status and nothing more. The above decision is clearly applicable to the Ex.

B6 and same can be looked into limited purpose.

36. It is settled principle of Law, Burden of joint family properties. Initial burden is on plaintiffs to show that the property is joint family property and then it shifts on the defendants to show that the same was not joint family property. Burden lies on the person who asserts that a particular property is a joint family property. As per the sections 101 to 103 of Indian Evidence Act the plea taken by the defendants that as per the Ex. B6 the partition was effected and the items 7 to 13 and 17 which were got subdivided.

37. DW1 in his cross examination admitted that plaintiffs have got 1/3rd share in the suit properties. it was 54 further admitted that DW1, D1, D3, D4 and PW4 are together entitled for 1/3rd share. It was further admitted that D5 to D13 are entitled for remaining 1/3rd share in the suit properties. It was further admitted that the property covered under Ex. B3 which is joint extent purchased from

D24. It is true that he purchased Ex. B4 property from

D24 which was in joint possession. He further admitted that he has objection for partition of plaint schedule property and allotment of 1/3rd share to the plaintiffs after allotting 1/3rd share to the DW1 and his two brothers and

D4 and including his purchasers. It was further admitted that D1 to D13 are co owners in the suit properties. It was further admitted that D4 is entitled to 1/4th share in the suit property. DW2 in his cross examination admitted that the plaintiffs are having 1/3rd share in the suit property. It was further admitted that she has no objection to allot 1/3rd share to the plaintiffs in the suit properties. It was further admitted that she has executed sale deed in favour of D27 in respect of item No. 14 and 16 with joint extent. D2 had purchased property from D24 with joint extent under Ex. B3 and Ex. B4. She does not know whether D24 sold away more than his extent he possessed by him in the suit property in favour of D2.

She does not know whether Bayyamma executed any will in favour of D53 and his mother under Ex. B42. DW2 is 55 claiming Ac. 4-50 cents of land i.e., 1/12th share in the suit properties. She further admitted that she has sold away 10 Kuntas of land in joint status by way of three sale deeds.

DW3 clearly admitted that he has no objection to allot share to the second defendant in the suit property. It was further admitted that D10 and D12 have got share in the suit property. He does not know whether the some extent of suit property sold away to D19 or not. He has no objection to allot the D10 and D12 share to the D19. It was further admitted that Ex. B5 is a old document more than 100 years. DW3 did not file any subsequent alienation document. D4 is entitled 1/6th share after death of her husband. DW3 did not file subdivision proceedings.

There was no document reducing in writing in respect of partition. He does not know whether D25 executed a registered will Dt: 10.02.1976. It was further admitted that there is no record to show that Appala Reddy and

Seetharami Reddy are divided and residing separately.

Thattivaripalle Village is situated in Sy. No. 6. DW3, D6 and D24 have executed sale deed in favour D15 and he got constructed house and compound wall. It was further admitted that as per the recitals of Ex. B6 the partition was effected on the date of execution of document. It was further admitted that no notices were served to all the sharers before subdivision of the suit properties in the year 56 1974 and statements of the sharers was not recorded. Ex.

B6 properties situated in Basinikonda Village. Admittedly original of Ex. B6 not produced before the court. It was further admitted that Appala Reddy and Seetharami Reddy never divided their properties. witness again says in the year 1924 they got divided but there was no document reducing into writing. In the absence of documentary evidence it is not safe to accept that both of them got divided in the year 1924. DW3 did not file any record to show that Achamma name was mutated in the revenue record and so also there is no record to show that D25 and

D26 have cultivated the suit lands after death of Achamma.

DW3 and other sharers sold away some extent in Sy. No. 5 and 6 in Golden Foods industries.

38. DW4 clearly admitted that she has purchased Ex.

B8 property in joint extent in Sy. No. 82. It was suggested to DW4 her vendors have no right to alienate the property covered under Ex. B7 and Ex. B8 with extent Ac. 00.02 cents each. DW5 clearly admitted that DW4 had purchased property without boundaries. It was further admitted that

P. Krishna Reddy did not shown registered partition deed to

DW5 before purchased the property. Ex. B7 and Ex. B8 does not contain plot numbers and approval of the plots by the Grama Panchayath. The plaintiffs counsel suggested to the DW5 stating that in A.S. No. 97/1998 court observed 57 that D25 and D26 are not entitled any share in the suit property as such they have preferred second appeal before

Hon’ble High Court and said appeal was dismissed. DW6 in

his cross examination admitted that his maternal grandfather and his brothers have equally entitled share in the properties of Nallapa Reddy. Original of Ex. B10 and

Ex. B11 are not traced out as such registration copies filed.

On showing the signature contains on original registered sale deed Dt: 14.05.1973 does not belongs to a Krishna

Reddy. Revenue authorities have not issued Pattadar Pass

Book and title deed in the name of his mother. Her mother name was not mutated in the revenue records. He does not know the other attestors of Ex. B10 and Ex. B11.

It was suggested to the DW6 that Ex. B14 is nominal document and they have no right to execute Ex. B14. He further suggested to the witness Ex. B14 during the life time of his mother and her father sold away entire extent belongs to T. Appi Reddy and no property remains with them. It was further suggested to witness that they have no right in the suit properties. He does not know whether

D59 has purchased the property from D10, 12, 30 to 33 and 42 to 47. The learned counsel submitted that the defendant grandfather has executed registered gift settlement in favour of their mother Avula Achamma in respect of B schedule properties on 26.07.1961. Avula 58

Achamma has entitled 1/24th share in item No. 1 to 4 and 1/5th share in item No. 5 of plait B schedule property by virtue of registered gift deed Dt: 26.07.1961 executed by her father in favour of her Avula Achamma. Ex. B12 is original registered will Dt: 09.08.2012 executed by Avula

Achamma infavour of Defendants No. 54 and 55 said to have executed during the pendency of the suit. Ex. B14 during the life time of his mother and her father sold away entire extent belongs to T. Appi Reddy and no property remains with them.

39. It was further suggest to the witness they have no right in the suit properties. Ex. B14 original sale deed

Dt: 30.04.2012 marked and same obtained during the

pendency of suit. Ex. B15 and Ex. B16 exchange of legal notices. It was further admitted that Nallappa Reddy has got 1/6th share in the suit property. DW7 admitted in the cross examination who identified as one of the attestors of the Ex. B12. DW8 identified his signature containing on

Ex. B12. DW9 clearly admitted that D2 is having share in the suit property. He further admits that D10 and D12 have got right in the suit property. It was further admitted that D5 to D13 are enjoying the undivided share and they were co-sharers. He does not know whether D54 to D58 having share in the suit property. It was further admits that DW9 R. Sivamma have not obtained permission from 59 the Hon’ble District Court to alienate the share of the minors property. Witness voluntaries Sivamma has signed on behalf of the minors. Sivamma has got some other property besides property covered under Ex. B17. They have purchased the property covered under Ex. B17 in joint extent. It was further admitted that D4 and her daughters have succeeded the property after the death of husband of the D4. They have got 1/12th share in the suit property.

DW10 clearly admitted that D1 to D3 are having share in the suit properties. It was further admitted that T.

Nallappa Reddy has got 1/6th share in the suit property. It was further admitted that D12 share in Sy. No. 82 sold away to D19 covered under Ex. B7. It was further admitted that he obtained certified copies from certified copies in O.S. No. 724/1980. He further admitted that he did not obtained certified copies from SRO office. At the time of marking certified copies witness is directed to obtain certified copies from the originals and same marked subject to objection. As per the decision reported in 2013 (1) ALD page 733 in Division Bunch in between D. Ravi Yadav v/s

Cherukula Uday Kumar and others. It was observed that

Evidence Act u/s 77 and 79 certified copies of production of in proof of contents of public documents permissibility and presumption.

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As per the above principal of law certified copies the court shall presume will be presume under section 79. Dw10 further admitted that he does not know whether D25 and

D26 have adopted the written statement of D5 or not. It was suggested to the DW10 that D25 never executed any document in his favour and same was denied. DW10 is claiming share of the both D25 and D26, D5 and D48 and

D49 are claiming through D25. It was suggested that after death of Appala Reddy his wife Achamma have not entitled any right in his share and same was denied. DW11 clearly admitted in the cross examination that he purchased the property covered under Ex. B38 from the branch of T.

Nallapa Reddy. PW10 vendor Nallapa Reddy had got 1/6th share. He does not know the pendency of the present suit as on the date of Ex. B38. Admittedly original of Ex.

B38 obtained during the pendencey of the suit. It was suggest to DW11 his vendor has no right to alienate Ac.

00.44 cents and same was denied. DW11 further admitted that he sold away Three kuntas of land out of property covered under Ex. B38. DW12 clearly admitted in the cross examination that he has purchased the property in Sy. No. 77,78,79 and 80 with total extent Ac. 00.22 cents. Ex. B40 is the pass book it contains Ac. 00.21 ½ cents. He purchased the property from A. Achamma, A.

Venkataramana Reddy, Sreenivasulu Reddy and others.

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He has no objection to allot share to D19 covered under Ex. B7 and Ex. B9. It was suggested to DW11 that his vendor intends to sell the actual extent of Ac. 00.2 ½ cents i.e., equallent to one Kunta and he obtained Ex. B40 moreextent taking advantage of their innocence and fraud played against them. He sold away some extent of property to other in Ex. B14. Ex. B14 recitals contains their vendor acquired the property by virtue of gift deed Dt:

26.07.1961 executed by T. Appi Reddy. PW11 did not obtained Encumbrance certificate from 26.07.1961 till the date of Ex. B14. DW13 filed Chief Affidavit but did not appear for cross examination and his evidence is closed.

DW14 clearly admitted in the cross examination that he has got two brothers Krishna Reddy and Venkata Reddy. Out of which Krishna Reddy died. Sivamma is maternal aunt.

It was further admitted that Salamma had three sons and one daughter namely Venkatramana Reddy, Krishna Reddy and Venkata Reddy. Sivamma had two daughters namely

Sulochana and Chandrakala. Admittedly Sulochana and

Chanralaakal who are the daughter of D4.

It was suggest to the DW14 stating that counter claim is not maintainable and same was denied. DW15 clearly admitted in the cross examination that he did not sign as attestor on the registered will Dt: 24.04.1974 in Ex. B42.

DW15 is closely related to the D53. D15 is the son of the 62 second attestor of the registered will Dt: 24.04.1974.

Admittedly DW15 have not brought any document with containing signatures of his father for comparison of the same. DW16 clearly admitted in the cross examination that he has nothing to do with the share of D2. D53 is elder brother of D16. DW16 did not file any record to show that he is in joint possession and enjoyment of suit property. It was suggested to the DW16 that he is not entitled any share in the suit property and D53 alone is entitled share as per the will and same was denied. It was further suggested to D16 Bayyamma has no right to execute will and same is created one.

40. As per the decision reported in 2008 (5) ALT page 341 inbetween Amara Venkata Subbaiah and sons and others v/s Shaik Husain Bai and others. Hon’ble High

Court observed that Indian Evidence Act u/sec 68, Indian

Succession Act 1925 U/sec. 63(c) proof of will. Will be proved by propounder by examining one or more attesting witnesses , will be given effect to it is proved. However if challengers of will proves his allegations of fraud, coercion or undue influence in regard to execution of will it can be rejected. If execution of will is surrounded by suspicious circumstances.

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41. The above principle of law Ex. B42 of the will and profounder fails to remove the suspicious circumstances. The other side contending that testatrix had no right to bequeath the Ex. B42 property.

42. The plaintiffs are contending that after death of Appal Reddy and his wife T. Achamma got right to enjoy the property towards her maintenance i.e., her pre existing right. After death of Achamma or her two daughters D25 and D26 have not acquired any right of deceased Estate of

Appala Reddy.

43. As per the decision reported in AIR 1999 (S.C. 1147) in between beni Bai, Appellant v/s

Raghubir Prasad Respondent. The Hon’ble Apex court observed that in particulars No. 8 in the present case, the widow was conferred the limited right in lieu of maintenance in recognition pre existing right.

This principle was statutorily recognized by their enactment known as Hindu Women rights to property Act, 1937 and Hindu Married Women Right to separate residence and maintenance Act 1946.

44. As per the decision 1995 (2) An.W.R. 1 (S.C). The Hon’ble Apex court delivered judgment in between Vijay Pal Singh and another appellant v/s Dy.

Director of Consolidation and others. It was observed that 64 the Hindu Women Right to property Act 1937 does not apply to claim made by Shiva Devi but her right is one of limited estate. Since Bhanwar Sing died in 1910 she has no right to share in the property left by her husband and the sons of Kulwar sign are entitled to succeed to the estate of Bhanwar Sign. The above case facts clearly applicable to the present case Appala Reddy died in the year 1932 and

T. Achamma died in the year 1942. The right in the case of widow is a pre existing right which existed under the

Shastric Hindu Law long before the passing of the 1937 or 1946 Act.

45. The D5 and D6 counsel further submitted that the right of a widow to succeed as heir to her husband was recognized at least 200 years ago Vriddha Manu,

Yajnavalkaya, Vishnu, Brihaspathi, Katyanayana, Sankaha,

Likhitha and Devala fully recognize her right to succeed to her husband. Widow is only heir to her husband a widow therefore can only succeeded to her husband property or rights i.e., to the property which was actually vested in his name either in title or in possession at the time of his death. As per the law prevailing prior to Hindu succession

Act of 1937 came in to force widow was entitled to succeed to her husband property. Hindu women right to property act 1937. The counsel relied upon decision reported 1989 (1) APLJ page no. 27. Widow of the deceased brother 65 cannot maintain a suit for partition on the basis of on earlier partition after 1947 as Hindu women right to property act was made applicable to the Agricultural lands from the year 1947 and widow was only a maintenance holder. The counsel further relied upon decision AIR 1996 S.C. page 146 in between Vijaya Pal Sign and another v/s Deputy

Director of Consolidation. The Hon'ble Apex court observed that husband of a widow was separated from his brothers and was in possession of his share of property and after his death in the year 1910 his widows name was mutated and continued in the record of right her limited estate would be enlarged into absolute right by operation of u/sec. 14(1)

Hindu Succession Act. The above decision facts are not directly applicable to the present suit facts on hand. There is no evidence on record to prove that Thatti Appala Reddy and Thatti Seetharami Reddy have divided and the name of

Thatti Appala Reddy and after his death Achamma name was mutated in the revenue record. The plaintiffs counsel submitted that the 10 (1) account marked through

Defendants and item No. 1 to 3 of the B schedule property was given to the Achamma for her maintenance as such her name found in revenue records in the respect of three survey numbers only. The defendants cannot take advantage the name of the Achamma found in 10 (1) in Ex.

B21, Ex. B22 and Ex. B23. The defendants counsel further 66 relied upon decision AIR 1966 S.C. page 1879 in between

Eramma Appellant V/s Veerupan. The Hon'ble apex court observed that on the death of widow it is the only Hindu law apply and therefore under the custom in force under which a daughter was not entitled to succeed to ancestor property of the father in preference to the reversioner should apply and she is entitled to succeeded properties. The defendant counsel further relied upon AIR 1953 Madras page No. 22.

The property acquired by father at partition between him and sons in his separate property and on his death it passes to his widow. The counsel submitted that after death of

Achamma the D25 and D26 became entitled to her share in the suit properties. They have exercise of their right in the suit lands have executed various sale deeds. The plaintiffs never questioned the execution of registered sale deeds and other documents executed by D25 and D26.

The plaintiffs are not entitled for 1/3rd share and they have sold away several properties and they have not mentioned the same in the plaint. The D25 and 26 were entitled for 1/6th share in the suit property. Ex. B19 to Ex. B37 are marked subject to objection which are the certified copies of the public documents. The counsel relied upon decision 2017 (1) ALD page 626 in between K. Narasinga Rao v/s K.

Supriya and another Para No. 14 U/sec. 65, 74 and 77 of

Indian Evidence Act certified copies to the certified copies 67 obtained from the court proceedings of another suit are public documents can be received secondary evidence subject to objection. The above principal of law clearly applicable to the Ex. B19 to Ex. B37. At the time of marking of the same the court received the document subject to objection. At the stage of arguments the Ex.

B19 to Ex. B37 can be admitted into evidence as secondary evidence. If the documents are not admitted the party rights may be prejudice. The original documents are not available to summons the same or to obtain certified copies from the originals. Ex. B19 to Ex. B37 certified copies obtained from previously marked Exhibits in earlier suit.

The plaintiffs have to prove their title independently without depending upon weakness of the defendants case.

46. The defendant No. 5 counsel relied upon another decision 2007 (2) ALT page 21 in between P.

Jagadeeswar v/s P. Lakshmi bai Admissions as to rights over property. Rights of parties to property need to be decided on the basis of oral and documentary evidence and by applicable principle of law. The plaintiffs herein relied upon the admissions made in the written statement pleadings filed by the D25 and D26 in earlier suit and also admissions of the defendants witnesses.

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47. The defendants counsel relied upon decision reported in AIR 1952 S.C. page 109 in between M. Nagi

Reddy and others v/s P. Durairaja Naidu and others.

Alienation by Hindu widow suit for possession by reversioners mesne profits claim for from widows death (limitation Act (1908) Art. 141 Hindu Law Reversioners.

The defendants counsel relied upon another decision reported in AIR 1970 S.C. page 789 in between Fateh Bibi etc., appellants v/s Charan Dass, Respondent. Hindu law of Inheritance (Amendment) Act 1929 section 1 Act applies even when a Hindu male dies intestate before 21.02.1929 but is succeeded by female heir who dies after that date.

48. The learned counsel submitted that Thatti

Seetharami Reddy never took steps for taking possession the share of his brother T. Appala Reddy after death of

Achamma. The plaintiffs counsel submitted that the plaintiffs are in joint possession of the suit property along with other co sharers.

49. The defendants counsel relied upon decision reported 2014 (6) ALD page 27 in between Vidya Sagar v/s

Ram Krishan Sign Died by LR’s and others. Limitation Act 1963 Articles 65 suit for recovery of possession based on title bar of limitation claim of plaintiff based on will executed by grandfather on 01.05.1967 bequeathing suit property to 69 him, when he was aged about 5 years plaintiff attained majority in 1981 and taken up proceedings for grant of probate in 1983 but taken no steps to seek relief of recovery of possession. The above decision facts are not directly applicable to the present suit facts on hand. The plaintiffs are not minors to file the suit after attaining majority. The cause of action para shown in the plaint the plaintiffs demanded the defendants for partition and immediately cause of action arose.

The defendants counsel relied upon decision reported 1999 (4) ALT page 118 in between Khasireddy

Ramayamma v/s Kasireddy Ramarao. Mere cancellation of such a document by execution another document does not affect the legal consequences with flow under a duly executed and registered document. The plaintiffs have not admitted the document executed by the party without having right and they have filed suit for partition and there is no need to seek cancellation of said sale deed executed without having any right and same is not binding on the plaintiffs.

50. The defendant No. 5 counsel submitted that the issues decided in earlier suit in O.S. No. 724/1980 and

AS. No. 97/1998 and court observed the plaintiffs herein

are the owners of the suit property. The said observation is 70 not binding on the defendants. The counsel relied upon decision 2010(2) ALD page 1 (DB) in between Y. Jangamma and other v/s special court under AP land grabbing (prohibition Act ) Resjudicata applicability of scope finding recorded in an earlier injunction suit cannot be treated as resjudicata see, A.P. land grabbing (Prohibition) Act 1982

Sections 7, 7A and 8. The counsel further relied upon decision 2012 (4) ALD page 280 in between Mova

Venkataswara Rao and another v/s V. Chinaramaya died and others. Hon’ble High Court observed that earlier suit was filed seeking bear injuction title was not in issue and the same was not even gone into incidentally. The decision earlier suit and consequential don’t operate cannot resjudicata. The defendant counsel relied upon another decision 2016 (3) ALD page 724 in between G. Sundara

Narasaraju and others v/s P.Venakta Narasimha Raju and others. Hon’ble High Court observed that the documents were considered in former suit only on limited accepts and to find out as to whether plaintiffs in former suit were in possession or not as on the date of institution of suit. Non filing of some documents in former suit is ground to disbelieve said document and previous suit is filed for injunction. 2010 (1) S.C.J. page 362 between Ramachanra

Dagudu Swanavani by LR’s v/s Vittu Hiramahar by LR’s.

The Hon'ble Apex court observed that when the material 71 issue has been tried can determined between same parties in a proper suit by competent as to the status of one of them in the relations to the other he cannot be again tried in other suit between the same parties. In a suit for injunction the issue would be confined to possession only.

If the right to possession of property cannot be decided without decision to the property of a person who approached the court. The observation in the appeal 97/1998 the plaintiffs cannot take advantage and they have to prove their share in the suit properties independently.

51. The defendant no. 59 and 60 counsel submitted that plaintiffs have not pleaded in the plaint about the execution of Ex. A17. They cannot contend that it is 30 years old document and same is admissible evidence without pleading. As per the decision 2011 (2) ALD page 44 S.C. The Hon'ble Apex court observed that beyond pleadings of parties court cannot consider any fact which is beyond the pleadings of the parties. PW5 T. Reddi Sekhar

Reddy clearly admitted in the cross examination no Pattadar

Pass Books were issued in respect of Ex. A17. He identified his signature containing on Ex. B38 as identified witness.

He know the D59. He further admitted that plaintiffs have not sought relief in the plaint prayer about Ex. A17 property. He do know what is the main source of property acquired by Avula Achamma in the suit property. The 72 counsel suggested to the PW5 Avula Achamma never executed Ex. A17 infavour of his father and same was denied. He do know what the property purchased by D60 under Ex. B14. In view of the admission of PW5 plaintiffs are not entitled to seek partition of the Ex. A17 property.

The plaintiffs have not pleaded about the Ex. A17 property and they are not entitled any share in Ex. A17 property.

It is settled principle of law without pleading the parties are not entitled to adduce evidence.

52. The plaintiffs counsel submitted that after the death of Thatti Achamma her daughters D25 and D26 or their children are not entitled any share in the property of

Thatti Appala Reddy. The share Thatti Appala Reddy shall be reverted back to the Thatti Seetharami Reddy. The plaintiffs counsel relied upon a decision AIR 1977 (S.C.) page 1944 in between Vaddiboyana Tulasamma and others appellant v/s Baddiboyana Sesha Reddy by LR’s respondents Hindu Succession Act U/se. 14 (1 and 2) Hindu female acquiring under compromised in lieu of satisfaction of her right of maintenance. Compromised prescribing limited interest. In para No. 29 Hindu Women right to property act 1937 which provided that on partition a widow would be entitled to the same share as the sons in the property of her husband. The act of 1937 while a giving a share to the wife on partition had not disturbed her right 73 claim interest which was preserved intact and although

she was not permitted to sue for partition she was

undoutedly to sue for maintenance. The above principle of law Cleary applicable to the present suit facts on hand. The plaintiffs are entitled to the 1/3rd share as prayed in the suit. Thatti Achamma or her two daughters i.e.,

D25 an D26 or their childrens are not succeeded any estate of the deceased Thatti Achamma.

Additional Issue framed on 24.4.2017:

Whether the D53 is entitled to partition of the written statement schedule properties against the plaintiffs and other defendants?

53. Admittedly the said counter claim filed on 14.6.2010 and the office took several objections but the

D53 did not comply the office objections. The same was not numbered by assigning I.A. number. The then

Presiding Officer have not passed any order whether the counter claim is numbered or not. There is no docket order specifically to file written statement by the plaintiffs or other defendants. There is no opportunity given to the plaintiffs to file rejoinder basing on the counter claim. How the counter claim is maintainable against the co defendants.

Merely paying of fixed court fee it does not mean D53 is entitled to adjudicate the counter claim. However D53 74 adduced oral evidence and sought counter claim relief against the plaintiffs. D53 claiming right basing on the registered Will Dt::24.4.1974 said to have executed by

Thatti Bayamma in favour D53. The said original Will is marked as Ex B 42 through DW14. During cross examination clearly admitted that there is no document stands in the name of Bayamma to succeeds through her ancestors. Admittedly DW14 was not present at the time of execution of B 42. He has no personal knowledge about execution of Ex B 42. There is no supporting documentary evidence to execute the Will by testatrix in favour of DW14.

The contention of the other defendants Ex B42 is created one with the help of attestors. It was further admitted that

DW14, his mother Salamma and Bayamma names were not mutated in the revenue records and never issued pattadar pass book in their names. DW15 deposed that he identified signature of his father containing on the Ex B42.

Admittedly DW15 did not produce any document with containing his father signature for comparison. The counter claim filed by D53 was filed 18 years after institution of the suit. The D53 has failed to prove that the counter claim filed within the limitation period. The D4 counsel relied upon decision reported in 2012 (4) ALT page 5 S.C. in between A. Shanmugam v/s Ariya Kshatriya

Rajikula Vamsathu Madiyala Nanddlavana papipalanai 75

Sangam Represented by is president Etc. The apex court observed that purity of pleadings. The pleadings foundation of the litigation. Pleading must set forth sufficient factual details of the facts. Pleadings must inspire confident and creditability. The above principle of law clearly applicable to the present counter claim petition filed by the D53.

There is no description of the parties names who are the counter claimants / Plaintiffs and who are the Respondents / Defendants.

54. The D4 counsel relied upon decision reported in 2006 (3) ALT page 87 S.C. in between Joseph Antony

Lazares by LR’s v/s A.J. Francis. The apex court observed that execution of will genuine undue influence and coercion.

Entire circumstances leading to execution and registration of will have got to be scrutinize carefully. The D4 counsel relied upon decision AIR 2001(S.C) page 2802 in between

N. Kamalam and another v/s Ayyaswamy. Attestation of will effect of subscribing a signature on the part of his scribe cannot be identified to be of same status as that of the attesting witness. The apex court clearly observed the examination of attestor of the will is mandatory. DW14 clearly admitted that Thatti Gangul Reddy never executed any document in favour of his mother or his grandmother.

Thatti Gangul Reddy died prior to marriage of Salamma and admission made by PW2 that Thatti Gangul Reddy died prior 76 to 1937. Thatti Sivamma has been in possession of the properties hence Bayyamma and Salamma has no right in the properties of Thatti Gangul Reddy. The title of

Bayyamma has not mentioned in Ex. B42. The recitals of

Ex. B42 entertained the doubt. The burden lies on the propounder to remove the suspicious circumstances.

55. As per the decision reported in 2002 (4)ALT

Page 426 (DB) in between G. Seethamahalakshmi and another Vs. P.Raja Rao and others. It was observed that mere saying that the signature of attesting witness is of him may not be sufficient unless he produces the signature of attesting witness on some admissible document and made both the signatures were available for comparison by the court to find out whether the person acted as a real witness.

56. The above principle of law clearly applicable to Ex B42 Will. D53 propounder of the Will has fails to comply the provisions under Section 68 and 69 of Indian

Evidence Act. DW14 and DW15 evidence is no way helpful to claim the share in the written statement schedule properties by way of counter claim. Accordingly additional issue is answered against D53.

The plaintiff counsel relied upon decision reported in 2015 (5) ALT page 383 in between B.

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Chandra kala v/s A. Anuradha and another. Hon’ble High

Court observed that Hindu succession scope of the scene widows possession strength in case of the principal of survivor continue to apply.

The plaintiffs counsel relied upon another decision reported in 2015 (6) page 55 in between Girijala Subba Rao died for LR’s v/s Kamireddi Satyanarayana and others.

Hon’ble High Court observed that Property given to A Hindu

Widow towards her maintenance and remained in her possession on the date when the Hindu Succession came into operation becomes her absolute estate.

The plaintiffs counsel relied upon another decision 2014 (5) ALT page 454 D.B. in between B.

Kondamma and others v/s S. Rami Reddy her LR’s.

limited rights of a women if a property given to a Hindu women with limited rights her life in recognition of the pre- exiting right to maintain her and if she was alive by the time of Hindu Succession Act, 1956 came into force, her limited rights stand enlarged in to absolute ones.

The plaintiff counsel relied upon another decision reported 2011 (3) ALT page 7 (S.C) in between

Ramakrishna Mutt Represented by Manager v/s M.

Maheswaran and others. The Hon'ble Apex court observed 78 that constructive possession of Hindu Female sufficient for application of section 14 (1) of Hindu Succession Act.

The plaintiffs counsel relied upon another decision reported 1995 (1) ALT page 68 in between Atava

Akkulamma v/s G. Papi Reddy. Hon’ble High Court observed that since the plaintiff (Widow of the original owner) had acquired the suit property and possessed if both

before and after commencement of the act. She was

entitled to hold it as full owner.

The plaintiffs counsel relied upon another decision reported 1995 (3) ALT page 44 (S.C.) in between

Mangatmal and another v/s Punni devi. The apex court observed that maintenance includes provision for residence limited ownership rights in property given to a female in recognitation of her pre-existing right to maintenance to upon coming in to force of the act.

The above decisions clearly shows the limited rights of widow will be enlarged into absolute rights after passing of the Hindu Succession Act 1956. Prior to that the widow had got limited rights of the estate of the deceased husband.

The plaintiffs relied upon decision 2017 (2) ALT page 736 in between B. Jagadeeswra Rao v/s Sri Ravi enterprises. Hon’ble High Court observed that effect of non 79 registration is that such a document shall not affect any immovable property. It cannot be received as evidence of any transaction.

The plaintiffs counsel relied upon another decision reported 2014 (2) ALT page 275 in between Shaik

Qutubuddin and another v/s Goli Viswanatham and others.

Hon’ble High Court observed that when an objection is

raised at the time of marking of document and same objection decide immediately without postponing same to the final stage of the judgment.

57. The plaintiff counsel relied upon another decision reported 2009 (3) ALT page 562 in between N. Sreehari for

LR’s v/s N. Prakash and others. Copy of the will admissibility certified copies of the will said to have executed by plaintiffs grandfather. unmarked copy of will are not available. The plaintiffs counsel took objection for marking the Ex. B19 to Ex. B37 subject to objection. I have already discussed above Ex. B19 to Ex. B37 can be looked into same as secondary evidence and certified copies are public documents under section 74 of the Indian

Evidence Act.

58. The plaintiffs counsel relied upon another decision reported 1977 AIR (S.C) page 409 in between

Union of India v/s Mokesh Builders and financiers. U/sec.

80 18 of the Evidence Act an admission by a party is sub stand evidence facts admitted and admissions duly proved or admissible evidence irrespective of whether the party making them appeared in the witness box or not. The above principle of law clearly applicable to the present case the earlier admission made by the D25 and D26 in earlier suit are binding in nature.

59. The plaintiff counsel relied upon another decision reported 2001 (5) ALT page 367 D.V. in between M.

Manik Reddy and another v/s M. Anusuya Devi and others.

the Hon’ble High Court observed that registration act u/sec.

17 instrument of partition mere payment of stamp duty and penalty as directed by court does not make the award admissible in evidence. The above principle of law applicable to the Ex. B6. The court received the evidence for collateral purpose only.

60. D27 has examined as DW9 and deposed that D4 sold away property covered under Ex. B17 Dt: 20.06.1983.

Ex. B18 is the 1-B Namuna. DW9 clearly admitted that defendants 5 to 13 are enjoying the undivided share. he has purchased the property covered under Ex. B17 with joint share. The counsel for D4 submitted that Sivamma has no right to execute Ex. B17 on behalf of the minor without obtaining permission from the Hon’ble district court.

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Ex. B17 recitals discloses Sivamma executed on behalf of the minors as natural mother and guardian and same is binding on the D4 and her legal representatives. D4 and her daughters have succeeded the property after death of husband of the D4 they have got entitled 1/12th share in the suit property. DW9 evidence is made it clear, he purchased Ex. B17 property with joint extent and the suit properties are deemed to the joined in between the co sharers. The aggrieved party have not filed any suit for cancellation of original of Ex. B17 after attaining majority of the minors.

61. The cause of action for filing of the suit the plaintiffs have clearly pleaded in the para no. 10 of the plaint on 01.06.1994 the plaintiff have demanded the defendants for partition. The D5 counsel contention there is no cause of action to file the suit cannot be accepted.

After death of T. Achamma in the year 1942 the properties given to her towards her maintenance and same revert back to the plaintiffs family, as per the than prevailing law i.e., prior to the passing of Hindu Succession Act 1956.

Merely non filing of suit for declaration it does not mean the suit for partition is not maintainable. The non joinder of persons to whom D25 and D26 said to have been executed sale deed is not binding on the plaintiffs. The original co sharers are added as parties in the suit. The D25 and D26 82 have no right to alienate the properties. The plaint averments and the evidence shows the mother of the D25 and D26 was allowed to enjoy the 1/6th share out of 1/3rd share of the family in item No. 1 to 3 of B schedule towards her maintenance and remaining 1/6th share has been in possession of plaintiffs family. The plaintiffs have been in joint possession of suit property as such the plaintiffs have filed the suit for partition.

62. Originally plaintiffs No. 1 and 2 have filed the suit against the D1 to D23. After the death of plaintiff no. 1 plaintiffs no. 3 and 4 were added as parties. The subsequent purchasers from the co sharers were added as

D14 to D23 and the remaining parties were added as their own accord under order 1 rule 10 CPC as well as LR’s of the original parties. The suit is not bad for non joinder of necessary parties as contended by the D5 and some of the defendants. There is no conflict between the plaintiff no.

2 and his family members and he is representing his branch of family after death of second plaintiff father.

63. As per the entries made in Ex. A3 certified Xerox copy of 10-1 Account for Sy. No. 6 of Basinikonda Village the name of Thatti Seetharami Reddy (Seethanna) found as owner of the property along with Thatti Maddi Reddy and others. As per Ex. A4 certified Xerox copy of 10-1 account 83

Sy. No. 7 and other numbers of Basinikonda village entries contains names of Thatti Appi Reddy and Thatti Seethanna.

Ex. A5 certified Xerox copy of 10-1 extract Sy. No. 445 and 483 of B.K. Palle village. Entries made it clear Seethanna as one of the owner of the suit properties along with other co sharers. As per Ex. A6 10-1 Account covered Sy. No.

445 and 483. Entries contain the name of Appi Reddy and

Seethanna along with other co sharers. Merely non filing of registered sale deeds it does not mean the plaintiffs have no share in the suit properties. The plaintiffs are claiming their right through their ancestors. As per Ex. A10 the certified copy of written statement in O.S. No. 724/1980 filed by the D25 and D26 made it clear, Thatti Appala Reddy and Thatti Seetharami Reddy were entitled to 1/3rd share in the paint A and B schedule properties and as such Appala

Reddy had entitled to 1/6th share in the suit properties. it was further admitted that the suit lands were not subdivided and the other co owners including Thatti

Seetharami Reddy were cultivating the same. U/sec. 58 of the Indian Evidence Act the admitted facts need not be proved and the D25 and D26 categorically admitted the share of plaintiffs in the suit properties. Merely non filing of suit for declaration and recovery of possession basing on the observation in AS. No. 97/1998 it does not mean the plaintiffs have no right to file suit for partition against the 84 defendants. as per Ex. A7 legal notice Dt: 23.02.1980 contains Sy. No. 431/1, 446, 434 i.e., item No. 1 to 3 of the

B schedule property given to Thatti Achamma towards her maintenance and it further contains and the said lands reverted to them after her death. The D25 and D26 have not chosen to deny the Ex. A7 legal notice and same deemed to be admitted. As per the decision reported in

AIR 1977 S.C. 1944 in Thulasamma case is clearly applicable to the present case about the limited rights .

Hon’bel Apex court further observed that only if the widow

with limited rights of maintenance is surveyed till the passing of Hindu Succession 1956. She had become absolute or full owner of the properties of her husband.

As per the text of Raghavachari Hindu Law, in the Hindu women’s rights to property act 1937 as introduction it is noted the widow took place limited estate in her husband’s interest if the joint family property and the said act is repealed in the year 1956. The said Hindu Women’s right to property act 1937 has no retrospective effect.

Therefore Thatti Achamma had given property covered three survey numbers towards her maintenance to revert to them after her death. After death of Thatti Atchamma the defendant No. 25 and 26 are not entitled to any share in the suit properties. If any property alienated by D25 and

D26 and said sale transaction are not binding on the 85 plaintiffs. The plaintiffs have sold away property Ac. 00.20 cents in Sy. No. 6 i.e., item No. 10 of the A schedule has to be deducted from their original 1/3rd share. The plaintiffs have purchased Ac. 00.18 cents in item No. 13 of the plaint

A schedule shall be entitled apart from their original 1/3rd share. The plaintiffs are not entitled to partition of the property covered under Ex. A17. The plaintiffs have not pleaded specifically about the claiming of Ex A17 property to seek partition of the same.. Hence the evidence of PW5 i.e., (third plaintiff) cannot be admitted into evidence.

64. D1 to D4 and one Venaktaramana

Reddy are entitled to 1/3rd share. The defendant No. 5 to 13 have together entitled to the remaining 1/3rd share in the suit properties. The purchasers from some of the co sharers basing on the registered sale deeds and same binding on the respective vendors within their original share allotted to them. The said sale transactions are not binding on the plaintiffs and some of the sale deed have executed during the pendency of the suit and lispendeny will apply to the said sale deeds. The plaintiffs are not entitled to seek partition of any house or building constructed in the suit survey numbers by the purchasers.

The plaintiffs are entitled to partition of the suit survey numbers shown in A and B schedule properties only.

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65. The daughters of late. Thatti Appala Reddy are namely Pedda Erukulamma and Chinna Erukulamma are not entitled to 1/6th share in the suit properties. The defendants have failed to prove that item No. 7 to 13 and 17 in the A schedule are not in joint properties. As per the

Ex. B6 is the certified copy of unregistered partition deed

Dt: 05.07.1977 which is marked for limited purpose. Ex.

B6 does not contain the entire plaint A and B schedule properties. Ex. B6 does not contain the signatures of the all the parties. There is no revenue record to show that the revenue authorities had served notices to the co sharers at the time of alleged subdivision proceedings. It is not believable to prove that the properties are divided and the properties are subdivided in the revenue records. The defendant No. 5 and 6 and D25 and D26 have failed to prove that Ex. B6 was acted upon and the sharers have been in separate possession and enjoyment of the said extents. The defendants further failed to prove that Thatti

Seetharami Reddy got divided from his brother Thatti

Appala Reddy by the time of death of Thatti Appala Reddy in the year 1932. As per the legal notice Ex. A7 legal notice three items i.e., 1 to 3 of B schedule properties had allotted to Thatti Achamma during her life time towards her maintenance. As such the name of Thatti Achamma might have been mentioned in the revenue records and mere 87 possession of the said items it does not mean she was the absolute owner of the said property. Admittedly Thatti

Achamma died prior to the passing of the Hindu Succession

Act 1956. The Women’s right to property act 1937 was came in to force during the life of Thatti Achamma and by the time Thatti Achamma has limited right of maintenance.

The defendants 5 to 7 and others have no right to claim right over the suit properties by adverse possession because they are claiming right over the suit property by succession. The defendants have further failed to prove the suit is bad for non joinder of necessary parties. During the pendency of the suit the purchasers and other legal representatives were added on record. I have already discussed if any co sharer is not added In the suit and he is entitled to come on record in final decree proceedings within the shares allotted to the original co sharers. There is no conflict between the plaintiffs to claim their share in the suit properties. Ex. B10 was registered on 17.12.1979, where as Ex. B16 is registered on 18.12.1979.

The plaintiffs never executed Ex. B16 along with D1 to D13 and D25 and D26 in favour of D15. The sale deeds executed by some of the defendants are not binding on the plaintiffs and excess extents. The plaintiffs have failed to prove that the mother of the D54 to D58 have sold the property to the deceased first plaintiff under Ex. A17. The 88 court is not inclined to allot property covered under Ex. A17 without any specific pleadings in the plaint. The sale deeds executed by D8 to D12 and their entitle extent and extents sold by them which is Cleary shows that the purchasers have obtained sale deeds more extents from their vendors than they had entitled extents. The said extents purchased by the purchasers are not binding on the plaintiffs. The sale deed stands in the name of P. Anitha

Reddy Dt: 19.12.1979 executed by the other defendants is not binding on the plaintiffs. The earlier suit filed for injunction and the present suit is filed for partition. The said discussion and finding of the court on different issue.

The D25 and 26 are clearly admitted the share of the plaintiffs in the suit properties in their written statement.

The defendants have failed to prove that Thatti Bayyamma got right to executed registered will Dt: 24.04.1974 in respect of property covered under the will. The defendants are not entitled to claim any share by virtue of the will Dt:

24.04.1974. The second defendant is entitled to the properties purchased under two registered sale deeds

Dt::30-9-1980 and 8-4-1982. along with his original share.

As such D2 is entitled to 1/18th share in the suit properties.

The ancestors of D1 to D4 and one Venkatramana REddy had 1/3rd share and the remaining 1/3rd share belongs to the defendants 5 to 13 and one Appi Reddy.Thatti Appi 89

Reddy has sold away his share to D13. The defendants 5 to 13 have became entitled to the remaining 1/3rd share. The defendants 14 to 23 are the purchasers of some extent in the plaint schedule properties. D27 is purchased from

D24 in respect of land Sy. No.78 and Ac 0-13 cents in Sy.

No.No.80 .Item No.16 in Sy. No.No.80 of plaint schedule under registered sale deed . Defendants 28 and 29 are the son and daughter of Deceased No.7 and they became entitled to the deceased D7 share. The defendants No.30 to 33 who are the legal representatives of deceased D11 and they became entitled to the share of deceased D11.

Defendants 34 to 41 are the legal heirs of D13 and they have succeeded to the share deceased D13. D40 to 47 are the legal representatives of D9 and they became entitled to his share in the suit properties. D53 claiming share basing on the Will 24.4.74 said to have executed by Bayamma.

D53 propounder of the Will has fails to prove that

Bayamma had got right to bequeath the property covered under the Will. D53 is not entitled any share in the suit properties. D54 to 58 who came on record by way of filing

Order 1 Rule 10 CPC by claiming as LR’s of Atchamma. They are not entitled to any share in the plaint schedule property by way of registered gift deed . I have already observed the plaintiffs have failed to prove they have purchased property covered under Ex A17 as such the property covered under 90

Ex A17 are entitled to the D54 to D57. The deceased

Atchamma the mother of the D54 to 57 and the wife of

D58 has sold away the property covered under the gift deed

Dt::27.6.1961 in the suit properties to D13. Atchamma has

sold away 0.04 1/6 cents in item No.13., 1/24th share in items 12,6,14 and 1/36th share in item No.3 and 4 and other properties to the deceased first plaintiff under registered sale deed. Therefore D54 to D58 are not entitled for any share and they have fails to prove they are in joint possession and enjoyment of plaint schedule property. D59 has obtained registered sale deed during the pendency of suit Dt::28.4.2012 from D10, 12 and D42 to D47 who are the LR’s of D9 and D12 . As such, D59 is entitled to claim property basing on the rights of his vendors executed the registered sale deed in his favour. Similarly D60 has obtained registered sale deed Dt::30-4-2012 during the pendency of the suit from D54 to D57 and their mother

A.Atchamma. Thatti Appi Reddy had got 1/24th share as such D54 to D57 are entitled to same. The subsequent purchaser D60 work out the remedies and D19 also work out his remedies as subsequent purchasers . The purchasers of the suit property have to claim their rights within the share allotted to the original co sharers and the said extents sold away by the co sharers does not affect to the original share allotted to the plaintiffs i.e. 1/3rd share.

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Item No.1 The defendants 60 to 65 are not entitled to any share in the suit properties . DW12 in his cross examination admits that as per the recitals of ExB14 contains their vendors acquired property by way of gift deed executed by

Appi Reddy. The plaintiffs counsel suggested to the DW12 stating that the father of Appi Reddy by name Nallapareddy had 1/6th share out of which his sons succeeded share equally and they have obtained Ex B14 for more ex tent and same was denied. Dw12 further admits that Atchamma executed registered. Sale deed in favour of first plaintiff prior to he purchased the property. Previous sale transaction is binding on DW12 and his vendors. DW12 further admits that he sold away some extent of property to others covered under Ex B14. Merely plaintiff No.2 and another family members have signed as attestors on the sale deeds executed by some of the defendants it does not mean the plaintiffs have got knowledge the contents and the rights of vendors. Accordingly issues No. 1 to 8 and

Additional issues framed on 31.01.2001. Additional issues

framed on 20.03.2017 and Additional issue framed on 24.04.2017 are answered in favour of the plaintiffs and against the some of the defendants. The counter claimant (D53) is not entitled to pass decree against the plaintiffs and the other defendants as prayed for. Accordingly issues 92 1 to 8 and additional issues are answered in favour of the plaintiffs and against the defendants.

Issue No.9:

66. In the result, the suit is preliminary decreed with costs in favour of the plaintiffs and against the defendants.

The plaintiffs are entitled to 1/3rd share in A and B schedule property after deducting Ac. 00.20 cents in item No. 10 and also entitled Additional extent Ac. 00.18 cents in item No.

13. D1 to D4 and one Venkataramana Reddy are entitled to 1/3rd share. D2 is entitled to 1/18th share including the property covered under two registered sale deeds Dt::30- 9-1980 and 8-4-1982. D5 to D13 and D54 to 57 are entitled the remaining 1/3rd share. The defendants 53, 61 to 65 are not entitled to any share in the suit properties. The plaintiffs are not entitled to claim any structures or buildings constructed in the part of the suit properties. The subsequent purchasers are entitled to claim their share as per the original shares allotted to the original co sharers .

The excess extents purchased by them is not binding on the plaintiffs.

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The D53 is not entitled to seek partition of written statement schedule property against the plaintiffs and the defendants. The counter claim petition is dismissed without costs.

Typed to Dictation by the Personal Assistant and

pronounced by me in the open court this the 27th day of

April, 2017.

Additional. Senior Civil Judge,

Madanapalle.

Appendix of Evidence

Witnesses examined on behalf of plaintiffs

PW1:T.Gangul Reddy.

PW2:Chandra Reddy.

PW3:P.Akkulappa.

PW4:T.Venkatramana Reddy.

PW5:T.Reddisekhar Reddy.

Witnesses examined on behalf of Defendants

DW1: Thatti Appoji Reddy.

DW2:Thatti Sivamma.

DW3:Thatti Sidda Reddy.

DW4:C.Sujatha.

DW5:C.M.Bhaskar Reddy.

DW6:A.Venkatramana Reddy.

DW7:M.Venkata Reddy.

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DW8:Shaik Abdul Rahiman.

DW9:Kuppala Akkulappa.

DW10:Chinna Yella Reddy.

DW11: G.Devendra Reddy.

DW12:N.Irfnan Khan.

DW13:P.Anitha Reddy.

DW14:A.B.Reddigari Venkatramana Reddy.

DW15:A.Jayasind Reddy. (Chief Affidavit filed only)

DW16:A.Balanagireddigari Venkatreddy.

Exhibits marked on behalf of the plaintiffs

Ex. A1 is the certified Xerox copy of registered sale deed executed by Venkataramana Reddy in favour of Thatti

Appala Reddy Dt: 30.09.1930 in respect of land situated

B.K. Palle revenue village and Basinikonda Village.

Ex. A2 certified copy of the death register extract clearly shows Thatti Appala Reddy died on 28.03.1932.

Ex. A3 is the certified Xerox copy of 10-1 Account for Sy.

No. 6 extent Ac. 6-20 cents .

Ex. A4 is the certified Xerox copy 10-1 Account for Sy. No.

445 and 483 stands in the name of Seethanna and Chinna

Obula Reddy, Venkata Reddy, T. Venkatramana Reddy and

Parikala Reddy.

Ex A5 is the certified Xerox copy of 10(1) extract for Sy.

No.445 and 483 of B.K.Palle.

95

Ex. A6 is the certified Xerox copy of 10-1 stands in the name of Thatti Maddi Reddy, Obula Reddy, Appi Reddy,

Seethanna, Chinna Obula Reddy.

Ex A7 is the certified Xerox copy of legal notice Dt::23-2- 1980 .

Ex. A8 is the certified Xerox copy of acknowledgement.

Ex. A9 is the certified copy of plaint in O.S. No. 724/1980.

Ex. A10 is the certified copy of written statement filed in

O.S. No. 724/1980.

Ex. A11 is the certified copy of decree in O.S. No.

724/1980.

Ex. A12 is the certified copy of judgment in O.S. No.

724/1980.

Ex. A13 and Ex. A14 are the certified copy of decree and judgment in O.S. No. A.S. No. 97/1998.

Ex. A15 is the certified copy of registration partition deed

Dt: 04.03.2010 between Thatti Sidda Reddy and Thatti

Uthama Reddy.

Ex. A16 is the certified copy of registration partition deed

Dt: 06.03.2010 between Thatti Uthama Reddy, Devi,

Pujitha, Krushitha, Ramanamma, Sudha Rani and

Ramadevi.

Ex. A17 is the registered sale deed executed by Avula

Achamma in favour of Thatti Gangul Reddy Dt: 14.05.1973.

96

Exhibits marked on behalf of Defendants:

Ex. B1 is the signature portion containing on the sale deed.

Certified Xerox copy of registered sale deed Dt: 28.04.2012 executed by Thatti Achamma and others in favour of

Gangasani Devendra Reddy.

Ex. B2 is the signature o the PW2 as a first attestor on the original of registered sale deed Dt: 30.4.2012 executed by

Avula Achamma and others in favour of Nimmanapalle Irfan

Khan.

Ex. B3 is the certified copy of registered sale deed Dt:

30.09.1980 executed by D24 in favour of D2.

Ex. B4 is the certified copy of registered sale deed Dt:

08.04.1982 executed by D24 in favour of D2.

(Ex. B5 is the original sale deed Dt: 20.10.1915 executed by Makkam Chinna Venkata Swamy in favour of Thatti

Sidda Reddy which is marked through DW3.

(Ex. B5 is the more than 30 years document.)

Ex. B6 is the certified copy of the partition agreement Dt:

05.07.1977 .(Marked for limited purpose ).

Ex. B7 is the registered sale deed Dt: 09.02.1989 executed by D12 in favour of D19.

97

Ex. B8 is the certified copy of registered sale deed Dt:

17.03.1983 executed in favour D19.

Ex. B9 is the certified copy of RH page issued by SRO

Madanapalle.

Ex. B10 is the registration copy of the registered gift deed executed by Thatti Appi Reddy in favour of Achamma for an extent of Ac. 4.75 cents of B.K. Palle.

Ex. B11 is the registration copy of registered gift deed Dt:

26.07.1961.

Ex. B12 is the registered will Dt: 09.08.2012 executed by

Achamma in favour of her sons.

Ex. B13 is the Death certificate of Avula Achamma stating that she died on 01.10.2012.

Ex. B14 is the original registered sale deed Dt: 30.04.2012 executed by Avula Achamma and other in favour of N. Irfan

Khan.

Ex. B15 is the served copy of the legal notice Dt:

25.07.2012 .

Ex. B15 and Ex. B16 exchange of legal notices was taken during the pendency of suit.

Ex. B17 is the registration copy of the sale deed Dt:

20.06.1983 executed by D4 and her daughter in favour of

D27.

Ex. B18 is the 1B Namuna issued by Meeseva in favour of

D27.

98

Ex. B19 is the certified copy of mortgage deed Dt:

08.01.1960 executed by Poreddi Chinna Erukulamma in favour of Poreddi Pedda Erukulamma.

Ex. B20 is the certified copy of settlement register it contains names Obulareddigari Obula Reddy, Thatti Appi

Reddy and T. Seethanna as pattadars.

Ex. B21 is the certified copy of the settlement register it contains name Thatti Achamma and Thatti Seethanna,

Thatti Appi Reddy, Thatti Nallapareddigari Obul Reddy,

Thatti Maddi Reddy and some others.

Ex. B22 is the certified copy of the settlement register stands in the name of Obul Reddy, Thatti Achamma, and

Thatti Seethanna.

Ex. B23 is the certified copy of settlement register stands in the name of T. Achamma, T. Seethanna and others and it contain sub division survey numbers with extent Ac. 2.09 cents.

Ex. B24 is the certified copy of settlement register stands in the name T. Seethanna, T. Maddi Reddy and Makam

Subbaraju and Makam Subbaraju name inserted without any initial.

Ex. B25 is the certified copy of settlement register stands in the name Seethanna, Chinna Obul Reddy, Venkata

Reddy, and Venkatramana Reddy with an extent Ac. 16.04 cents.

99

Ex. B26 is the certified copy of settlement register stands in the name T. Maddi Reddy and Nagi Reddy, Bayya Reddy and Erukulamma it may be Chinna Erukulamma or Pedda

Erukulamma with extent Ac. 12.03 cents.

Ex. B27 is the certified copy of registered sale deed Dt:

12.07.1998 executed by Poreddi Chinna Erukulamma in favour of Eswarappa.

Ex. B28 is the certified copy of registered sale deed Dt:

16.08.1979 executed by Thatti Pedda Reddeppa in favour of

Punganuru Venkataramana Reddy.

Ex. B29 is the certified copy of registered sale deed Dt:

14.12.1979 executed by Thatti Obulamma and her sons in favour of M. Nagi Reddy and others.

Ex. B30 is the certified copy of registered sale deed Dt:

15.12.1979 executed by Thatti Gangul Reddy and others in favour of M. Nagi Reddy and others.

Ex. B31 is the certified copy of registered sale deed Dt:

15.12.1979 executed by T. Erukala Reddy and others infavour M. Nagi Reddy.

Ex. B32 is the certified copy of registered sale deed Dt:

15.12.1979 executed by Thatti Gangul Reddy and other in favour of P. Anitha Reddy (D15) .

Ex. B33 is the certified copy of registered sale deed Dt:

15.12.1979 executed by T. Erukala Reddy and other in favour of D15.

100

Ex. B34 is the certified copy of registered sale deed Dt: 03.10.1981 executed by P. Yella Reddy and others in favour of Narayana. Ex. B35 is the certified copy of registered sale deed Dt: 09.12.1982 executed by Poreddi Chinna Erukulamma and in favour of Chinnappa. Ex. B36 is the certified copy of registered sale deed Dt:

03.08.1984 executed by Poreddi Erukulamma her son in favour of Shaik Sardar Lal.

Ex. B37 is the certified copy of registered sale deed Dt:

13.05.1985 executed by P. Pedda Erukulamma and others in favour of Gold Food Industries.

Ex. B38 is the registered sale deed Dt: 28.04.2012 executed by defendants 10,12,42 to 47 and the LR’s of D11 in favour of Devendra Reddy.

Ex. B39 is the Pattadar Pass Book issued in the name of

D59.

Ex. B40 is the Pattadar Pass Book issued in the name of

D60.

Ex. B41 is the certified copy of registered sale deed Dt:

15.12.1979 jointly executed by T. Gangul Reddy and others infavour of Anitha Reddy.

Ex. B42 is the original registered will Dt: 24.4.1974 executed by Thatti Bayyamma.

Addl.Senior Civil Judge, Madanapalle.

101

1 | P a g e F A I R

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL –

CUM – COURT OF THE SECOND ADDITIONAL DISTRICT

JUDGE: MADANAPALLE

Present :: Sri P.Bhaskar Rao, Chairman, Motor Accidents Claims Tribunal -cum-II Additional District Judge,

Madanapalle.

Monday, the Twenty-Fourth (24th) day of April, 2023

M.V.O.P. No. 134 of 2013

Between :

1) Nagella Ranjith, S/o late N.Sreedhar Gupta, aged about 23 years.

2) Nagella Sindhuja, D/o late N.Sreedhar Guptha, aged about 18 years.

Both are Hindus, residing at Door No.10/24, Nehru Bazaar, K.R.C. Stores, Madanapalle, Chittoor District.

.. Petitioners.

And :

1) M/s Guru Raghavendra Roadways, No.120, 1st Floor, K.T.S. Nilaya, 6th Cross, Kalasipalyam New Extension, Bangalore-560002, (Owner of the Lorry No. KA-01-AA-1463)

2) M/s Shriram General Insurance Company Limited, represented by its Managing Director, E-8, EPIP, RIICO Industrial Area, Sitapura, Jaipu (Raj.)-302 022. (Policy No.10003/31/13/262736 Valid From 17-09-2012 to 16-12-2013)

3) G.B.Nagarajappa, S/o Beera Lingappa, aged about 28 years, Hindu, resident of Chikka Kurabalahalli Village, Gowribidanuru Taluk, Chickballapura District, Karnataka State. (No. 3 is added as per orders passed in I.A.No.973 of 2015 dated 06-10-2015)

.. Respondents.

2 | P a g e F A I R

This petition coming on 18-04-2023 before me for final hearing in the presence of Sri. S.Badrinath Gupta, Advocate

for petitioners; Sri G.Janardhana Reddy, Advocate for the 2nd

Respondent; 1st and 3rd respondents having remained exparte; upon hearing the arguments on both sides and on perusing the relevant material on record and having stood over for consideration till this day, this court delivered the following :-

O R D E R

1. This is a petition filed by the petitioners to direct the respondents to pay a sum of Rs.85,00,000/- towards compensation for the death of N.Sreedhar Gupta, the father of the petitioners, in a road accident that took place on 03-01-2012 at about 05-00 P.M., near Batrepalli Cross on Kadiri to

Pulivendula road, Talapula Mandal, Anantapur District due to the rash and negligent driving of the 3rd respondent while driving the offending lorry bearing its registration No.KA-01-AA-1463; together with future interest and for costs.

2. The brief facts of the petition contents are as follows :

The petitioners 1 and 2 are the children of the deceased

N.Sreedhar Guptha. On 03-12-2012 at about 05-00 P.M., the said Sreedhar Guptha and his wife while proceeding from Kadiri to Pulivendela road in a Car bearing No. AP 02 R 2321, near

Batrapalle cross, and the Respondent No.3 being the driver of the offending vehicle i.e., Lorry bearing its registration No.KA 01 3 | P a g e F A I R

AA 1463 drove the said vehicle in in a and negligent manner and hit the car of the deceased. Due to which Sreedhar Guptha and his wife Visalakshi died on the spot. The other inmates of the car sustained grievous injuries. Talupula Police registered a case in Cr.No.64 of 2012 under section 337, 338 and 304-A of

IPC against the 3rd respondent and after investigation filed charge sheet in CC No.41 of 2013 on the file of J.F.C.M., Kadiri.

(a) Prior to the accident Sreedhar Guptha was hale and healthy and he was a successful financier, Realtor, chit promotor, philanthropist and businessman. He was a partner in

M/s Revathi Chit Promotors and Finance and Director of the said firm. Due to the death of Sreedhar Guptha, the petitioners have lost their parental care and also head of the family. The petitioners have not settled in their life and they are depending upon their parents. Their parents died in the same accident and the petitioners are entitled for substantial compensation amount due to mental agony, loss of enjoyment, company of their father and mother, loss of emotional support, loss of financial security and serious threat of future. Basing upon the assessment and loss sustained by the petitioners and other factors into consideration, the claim of Rs.50,00,000/- was enhanced to

Rs.85,00,000/- as per the amendment. The deceased has been undertaking various businesses apart from lending amounts.

The 1st respondent is vicariously liable for the acts done by the driver 3rd respondent. The said vehicle is owned by 1st respondent and insured with the 2nd respondent. Therefore, all 4 | P a g e F A I R the respondents are jointly and severally liable to pay compensation amount to the petitioners.

3. The 2nd Respondent filed written statement and denied the contents of the petition. Respondent Nos. 1 and 3 remained exparte.

4. In the written statement, the 2nd respondent contended that insurance company is not admitting petition allegations and that the alleged income of the deceased as shown in the petition. The person driving the vehicle has no relation in force as on the date of accident to drive the vehicle.

This respondent seeks protection under sections 147 and 149 of

M.V. Act. The 1st respondent has failed to comply the proviso 137 (c) of M.V. Act. The petitioners have to prove that due to rash and negligent driving of 3rd respondent, the accident occurred. The petitioners are claiming compensation excessively and they are not entitled for the interest on non-pecuniary damages. 2nd Respondent denied the age of the deceased and other facts. It is further denied that the deceased was a financial, realtor, chit promoter and director.

(a) It is further submitted by the 2nd respondent / insurance company that the offending vehicle of the 1st respondent was insured with this respondent. The petition is bad for non-joinder of insurance company of the car and it owner. 2nd respondent also filed additional written statement and denied the amendment of the petition portion and reiterated 5 | P a g e F A I R the same contentions of the written statement. Hence prayed to dismiss the petition with costs.

5. Basing on the above pleadings, the tribunal settled the following issues for the purpose of trial :

(1) Whether the accident occurred due to rash and negligent manner of the driver of crime vehicle bearing No. KA 01 AA 1463 resulting which death caused to the deceased namely N.Sreedhar Guptha?

(2) Whether the petitioners are entitled for the compensation as claimed for ?

(3) To what relief?

6. During the course of trial, Pws. 1 to 4 were examined and Exs.A1 to A10 and X1 to X7 marked on behalf of the petitioners. On behalf of the respondents, RWs. 1 and 2 were examined and Ex.B1 marked. Exs.X6 and X7 marked through PW4. Exs.X1 to X5 marked through RW2.

7. The first petitioner N.Ranjit examined himself as

PW1 and reiterated the petition averments in his chief affidavit and marked Exs. A1 to A6. PW1 was recalled and marked

Exs.A9 and A10. PW2 B.Vijayalakshmi, the Income Tax

Inspector was examined and through her Exs.A7 and A8 marked. V.Anandra Krishna, an eye witness to the accident was examined as PW3. S.Malik Basha working as Senior Assistant in 6 | P a g e F A I R the Office of Transport Officer in Sathya Sai District was examined as PW4 and through him Exs.X6 and X7 got marked.

8. RW1 J.Vijayakumar, the Legal Officer was examined on behalf of 2nd respondent / Insurance company and marked Ex.B1. RW2 Pachipulusu Narasimha Murthy, one of the partners of M/s Revathi Chit Promoters and Financiers, Kadiri and M/s Revathi Chits (Kadiri) Pvt. Ltd., was examined through

Advocate Commissioner and marked Exs.X1 to X5 to prove the income of the deceased N.Sreedhar Gupta in chit finance business through RW2.

9. It is pertinent to note that the petitioners herein have filed MVOP No. 133 of 2013 against the Respondents for the cause of death of their mother in the same accident. The petitioners have adduced oral evidence of Pws. 1 to 3 and documentary evidence of Exs.A1 to A8 for the purpose of claiming compensation of Rs.15,00,000/- for the death of their mother N.Visalakshi.

10. The petitioners and Respondent No.2 have taken similar plea in both M.V.O.P. Nos. 133 of 2013 and 134 of 2013.

The respondent No.2 denied the income of the deceased

Sreedhar Guptha and Visalakshi. It is not in dispute both the deceased are the parents of the petitioners. It is also not in dispute that the petitioners have lost their parents in the same accident and they have not settled well. The petitioenrs were 7 | P a g e F A I R totally depending upon of the income of their parents. It is also not in dispute that the Talupula Police have registered a case under section 337, 304-A IPC basing on the complaint lodged by

N.Sathyanarayana Gupta against the 3rd Respondent who was the driver of the lorry bearing No. KA 01 AA 1463 at the time of accident. The certified copy of FIR is marked as Ex.A1. ExA2 is the inquest report of N.Sreedhar Guptha and the age of the deceased is shown as 53 years and he died in the road accident.

Ex.A3 is the M.V. Inspectgor’s Report of the Accident and it contains the crime vehicle No.KA 01 AA 1463 and it contains RH side wind screen damages, RH side body corner damaged, RH side bumper. It shows the car of the deceased was proceeding on the left side of the road. Ex.A4 is the certified copy of post mortem report of N.Sreedhar Guptha and his age is shown as 53 years. The cause of death is shown as due to head injury and other injuries on the vital organs like brain. Ex.A5 is the certified copy of charge sheet filed against 3rd respondent in

C.C.No. 41 of 2012 on the file of JFCM, Kadiri. Ex.A6 is the

Aadhar Card of the deceased N.Sreedhar Guptha and it reveals that he was born in the year 1959.

11. PW2 B.Vijaya lakshmi the Income Tax Inspector deposed that as per Ex.A7, income tax returns of HUF for the assessment year 2011 to 2014. Ex.A8 is the income tax returns of the individual for the assessment year 2011 to 2014. PW2 clearly admitted that she did not file income tax returns for the firm for the year 2014 and 2015.

8 | P a g e F A I R

12. PW3. V.Anandakrishna deposed that he witnessed the accident and the Sreedhar Guptha who is his co- brother died in the accident. PW4 S.Malik Basha, who is working as Senior Assistant in the DTO Office, Srisathyasai District produced Ex.X6 the authorization letter and Ex.X9 the attested copy of driving license of N.Sreedhar Guptha to prove that the father of the petitioners got valid driving license at the time of accident. Therefore, 2nd respondent cannot contend that the deceased had no valid driving license to drive the car at the time of accident.

13. RW1 J.Vijaya Kumar, legal officer working in the 2nd Respondent / Insurance Company’s office deposed that due to rash and negligent driving of the deceased, the accident was occurred and marked Ex.B1 the copy of policy. RW1 is not the eye witness to the accident. Rw.1’s evidence clearly show that the crime vehicle was insured with 2nd respondent. Therefore contention of the 2nd respondent that the owner of the car bearing its registration No. AP-02-R-2321 and its insurance company are not added as parties to the present petition has no force. Hence, the petition is not bad for non-joinder of necessary parties. In the case of alleged contributory negligence, it is observed in a case Manjual devi bhuta versus

Manusree raha reported in 1968 ACJ page 1 M.P., wherein it was held that, “wherein it is now well settled that in case of contributory negligence, courts have power to apportion the loss between the parties as seen just and equitable. Claim shared in 9 | P a g e F A I R the responsibility for the damages.” Therefore, there is no need to add the owner of the swift car and its insurance company in this petition since the 2nd respondent failed to prove contributory negligence on the part of the deceased N.Sreedhar Gupta and the fact that the registering of criminal case against the 3rd respondent itself is sufficient to prove that the 3rd respondent being the driver of the offending vehicle drove the same in a rash and negligent manner and caused the accident, due to which the father and mother of the petitioners died on the spot and other inmates of the car sustained grievous injuries.

14. RW2 Narasimha Murthy deposed that he produced details relating to list of partners of their firm M/s

Revathi Chit promoters and financiars, Kadiri and got marked

Exs.X1 to X5 to prove that the deceased N.Sreedhar Guptha was drawing a salary of Rs.21,000/- p.a. and also getting profits in the business firm. The Advocate Commissioner recorded the evidence of RW2. The initial burden lies on the petitioner to prove that the petitioenrs are entitled to get compensation of

Rs.85,00,000/-. The 2nd respondent denied the source of income of the deceased and the documents filed on behalf of the petitioners are created one. 2nd Respondent’s counsel further submitted that the Income Tax relates to HUF, but not individual.

15. The learned counsel for the petitioner submitted that the Ex.A7 is the income tax returns on behalf of Hindu Undivided

Family (HUF) and Ex.A8 is the Income tax returns submitted on 10 | P a g e F A I R behalf of the deceased individually. Therefore, he argued that if the income of the deceased is considered as per the figures shown in Ex.A8, the petitioners are entitled for more than the compensation claimed in this petition. Hence, he prayed the court to grant compensation more than the amounts claimed in the petition. He submitted citations in support of his case that the court can grant more compensation than the compensation claimed in the petition. Further, the petitioners’ counsel relied upon several judgments to prove the rash and negligent driving of 3rd Respondent and also income tax returns can be taken into consideration to grant compensation. He relied upon the following decision in support of his case.

(1) Sarala Verma Versus Delhi Transport corporation (2) AIR 2009 (SC) page No.3104 to assess the future prospects of the deceased.

(3) AIR 2012 SC page 2185 in between Santhosh Devi

Versus National Insurance Company (4) AIR 2018 SC page 3107 United India Insurance

Company Ltd., versus Indiro Devi and others.

(5) 2022 Live Law SC 816 to accept the income tax returns (6) AIR 2020 SC page 90 to determine the annual income of the deceased (7) 2022 Live Law SC 1012 to consider the income tax returns of the deceased.

16. The counsel for the 2nd Respondent strongly opposes to consider the above decisions for granting 11 | P a g e F A I R compensation to the petitioners and relied upon the evidence of

RWs. 1 and 2.

17. This tribunal relied upon a decision of 2023 (1) ALT page No.14 SC in between Smt. Anjali and others versus

Lokendra Rathod, wherein it is observed, “Just and fair compensation. The provisions of M.V. Act, 1988 gives paramount to the concept of just and fair compensation. It is a beneficial legislation which has been framed with the objective of providing relief to the victims or their families.” The 3rd

Respondent being the driver of the offending vehicle was discharging his duty and in the course of employment, under the 1st respondent as on the date of accident. The offending vehicle was insured with the 2nd respondent and the insurance policy was in force at the time of accident. Kadiri Police have registered a case against the 3rd respondent, the driver of the lorry who had possessed valid driving license. The 1st and 3rd respondents remained exparte. Therefore, all the respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioners.

18. As per another decision reported in AIR 2022 (SC) 4620 in between Parampal sharda and others versus Dhani Ram and others, wherein it is observed that, “MV Act u/s 168

Compensation. Deceased qualified person working as a Manager in a private firm. Income of the deceased reassessed additional amount awarded towards future prospects after deducting personal expenses and applying appropriate multiplier.

12 | P a g e F A I R

Income Rs.15,000/- per month and 40% to be added as future prospects i.e., Rs.15,000/- + Rs.6,000/- = Rs.

21,000/-. Half of the deductions towards personal expenses i.e.

Rs.21,000/- divided by 2 = Rs.10,500/-. Compensation after multiplier Rsd.10,500/- X 12 X 18 = Rs.22,68,000/- deceased aged 23 years.

Conventional heads ; Loss towards estate and funerals

Rs.30,000/-. Loss of consortium Rs.1,20,000/- (Rs.40,000/- each to appellants 1 to 3)

Loss of consortium to mother Rs.40,000/-.

19. The above principle of law is clearly applicable to the present petition facts on hand. Taking into consideration of the income of the deceased and age, the petitioners are entitled for just and fair compensation.

20. As per the judgment of Honourable APEX Court reported in 2023 (SC) AIR 44 in between Anjali and others

Versus Lokendra Rathod. Income tax returns of the deceased during annual income assessed. 40% added future prospects.

21. In view of the above settled preposition of law, and as argued by the leaned counsel for the petitioners that deceased N.Sreedhar Guptha was an earning person. The documentary evidence available on record to determine the income of the deceased N.Sreedhar Gupta is that of income tax returns and the evidence of PWs.1, 2, 3 and 4. RW2 was examined through Advocate Commissioner. The evidence of 13 | P a g e F A I R

RW2 is that the deceased N.Sreedhar Gupta was the business partner of the firm M/s Revathi Chit Promoters and Financiers,

Kadiri and Ex.X1 shows that during the year 2011-12 the deceased was one of the partners of the said firm. After the demise of N.Sreedhar Gupta, the 1st petitioner was inducted as part of the said firm and for the 1/8th share of his father in the firm. The evidence of RW2 is that the deceased was drawing salary of Rs.21,000/- for the period 01-04-2010 to 31-03-2013 as managing partner of the firm. Ex.X2 is the ledger book for the accounting year 2010-2011 relating to Revathi Chit

Promoters and Financiers, Kadiri. RW2 clearly deposed that the deceased maintained the account of said firm in the capacity of

Managing Director of the firm. As per Ex.X4 the deceased

N.Sreedhar Gupta is one of the Managing Directors and he was paid Rs.90,000/- through Cheque No.120465 on par with the other directors. The 1st petitioner being inducted in the place of his deceased father, and he received payments of Rs.90,000/- for the period of 01-04-2013 to 31-03-2014; Rs.30,000/- on 02- 12-2013; Rs.1,20,000/- on 31-03-2014 through cheques as salary for different periods. Ex.X5 shows the salaries of the

Managing Directors of M/s Revathi Chit (kadiri) Pvtl. Ltd.

22. RW2 clearly deposed during his cross examination by the learned counsel for the petitioners, that the firm M/s Revathi

Chit Promoters and Financiers, Kadiri was established in the year 1985 with eight partners. The deceased was the active person for the business and he acted as Managing partner of the firm.

14 | P a g e F A I R

Under his management the business was improved and bad debts also improved. After the death of N.Sreedhar Gupta, the 1st petitioner was forced to join the firm by giving up his career.

It is also clearly deposed by the RW2 during his cross examination that the deceased was also having share in M/s

Revathi Chits (Kadiri) Pvt. Ltd., and he was running LIC agency besides lending money. Because of sudden death of N.Sreedhan

Gupta, RW2 sustained huge loss in business. M/s Revathi Chits (Kadiri) Pvt. Ltd., runs chits and the 1st petitioner joined as

Managing Director of the said firm after the demise of his father

N.Sreedhar Gupta. On behalf of two firms income tax returns were submitted and the remuneration mentioned in Ex.X2 is paid towards salary of deceased N.Sreedhar Gupta towards the services extended by him. On perusal of Ex.X2, it reveals that it is for the years 2010 and 2011.

23. RW2 during the cross examination by the learned counsel for 2nd Respondent deposed that he has no objection to file loss and profit account records before the court.

He clearly deposed that the income tax returns of the deceased reflect the other businesses also. Hence, it is clear from the evidence of RW2 that the deceased was drawing Rs.90,000/- p.a. as salary as one of the Managing Director of their firm and that their firm sustained huge losses. Therefore, it can be believed that the deceased N.Sreedhar Gupta was drawing

Rs.90,000/- p.a. as Managing Director of the firm as deposed by 15 | P a g e F A I R

RW2 and the 2nd respondent failed to disprove the evidence of

RW2 and Exs.X1 to X5.

24. The record reveals that the deceased was earning around Rs.7,00,000/- p.a. from his individual capacity and also through HUF income. Exs.A7 and A8 reveals the same.

RW1 examined on behalf of the 2nd respondent / Insurance

Company admitted in his cross examination that as per the record, the deceased N.Sreedhar Gupta had two PAN cards one is in the name of HUF and the other is in his name. He further admitted that the employer of the deceased deducted TDS from the salary of the deceased. RW1 denied the income of the deceased and the income of HUF of the deceased. No record submitted by the respondents to disprove the entries made in

Exs.A7 and A8 and Exs.X1 to X5.

25. On the other hand, the learned counsel for the petitioners submitted that PW2 the Income Tax Inspector working in Income Tax Office of Hindupur has produced the income tax returns of the deceased Sreedhar Gupta. PW2 clearly deposed that the individual has PAN card with

No.ABFPN3753K. As per the evidence of PW2, the deceased has filed income tax returns under HUF and also individually. As argued by the learned counsel for the 2nd respondent, the income tax returns filed by the deceased under HUF cannot be considered to determine the actual income of the deceased.

However, by considering the income tax returns filed by the 16 | P a g e F A I R deceased individually for the assessment years 2010-2011, 2011-2012 and 2012-2013, as Rs,4,10,176/-, Rs.4,10,354 and

Rs.4,61,367 respectively, this court intend to arrive at the income of the deceased as Rs.4,61,367/- which reveals from the income tax returns of the deceased submitted for the year 2012- 2013. The date of accident is 03-12-2012. Even by excluding the other modes of income derived by the deceased N.Sreedhar

Gupta as deposed by the witnesses examined on behalf of the petitioners, this court assessed the income of the deceased as

Rs.4,61.367/- p.a., which comes to around Rs.38,447/- p.m.

26. The age of the deceased is shown as 53 years at the time of accident. The learned counsel for the petitioner submitted during his arguments that the deceased was a business man and he was in the prime age of earnings from all corners because of vast experience, good will, reputation, which the deceased gained from all these years. The deceased would have earned if he would have been survived for a longer period.

The future prospects of the deceased are to be taken into consideration as 30% as he is a business man.

27. This court is of the opinion by considering the facts and circumstances of the case, 30% of the earnings of the deceased can be assessed as future prospects. As per the decision Sarala Verma and others Versus Delhi Transport

Corporation and another reported in 2009 ACJ page 1298, 4th column of the table in 19th paragraph of the said judgment) the 17 | P a g e F A I R multiplier 11 will apply to the present case. There is documentary proof to show that the deceased was earning an amount of Rs.38,447/- p.m.. However, it is obligation on the part of the respondents 1 to 3 to pay the just and reasonable compensation to the petitioners. After consideration of oral and documentary evidence, this tribunal came to the conclusion that the respondents 1 to 3 are jointly and liable to pay compensation to the petitioners. The M.V. Act being a beneficiary piece of legislature, where the interest of the claimants in paramount, the court should always endeavor to extent benefit to the claimants to the just and reasonable extent.

28. In view of the circumstances of the case and by considering the status, age, occupation business, and dependents of the deceased, the notional income of the deceased at Rs.38,447/- per month is taken into consideration for the purpose of awarding compensation to the petitioners.

Future progression is taken as Rs.11,534/- p.m. Hence, the total income of the deceased can be considered as Rs.49,981 /-

P.M. In the decision reported in 2009 ACJ 1298 Hon’ble Apex

Court in a case between Sarla Verma and others and Delhi

Transport Corporation and another it is observed that “having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependents family 18 | P a g e F A I R members is 2 to 3; one-fourth (1/4th) where the number of dependent family members is 4 to 6; and one-fifty (1/5th) where the number of the dependent family members exceed six”

29. Therefore, towards his personal expenditure taken as Rs.12,495/- i.e., 1/4th as per settled law. Then the contribution of the income of the deceased to the petitioners and their mother can be considered as Rs. 12,495/- per month. If

Rs.12,495/- is deducted from Rs. 49,981, it will comes to

Rs.37,486/- P.M. Rs.37,486 X 12 = i.e., Rs.4,49,832/- per annum.

30. In a case between Sarla Verma and others and

Delhi Transport Corporation and another reported in 2009 ACJ 1298 Hon’ble Apex Court in paragraph No. 9 of the Judgment mentioned about the method of calculation of compensation. As per the observation of the Hon’ble Apex Court in the said authority and the settled practice under first step the court shall ascertain the multiplicand by adverting to the occupation and income of the injured and then select the appropriate multiplier by referring to the age of the injured and by referring to paragraph No. 19 Column No. 4 of the authority. In the third step the tribunal shall make calculation of loss of income by applying the multiplier to the multiplicand ascertained. The age of the deceased is considered as 53 years. Therefore, operative multiplier of 11 is taken for consideration in this case. Hence,

Rs. 4,49,832 X 11 = 49,48,152/- and accordingly, the loss of dependency comes to Rs. 49,48,152/- In addition to the said 19 | P a g e F A I R amount, the petitioners are also entitled for funeral expenses and transporting charges of Rs.20,000/-.

31. The petitioners have claimed Rs.85,00,000/- under all the applicable heads but this Tribunal inclined to allow the petition in part by awarding an amount of Rs.49,68,152/- (Rupees forty nine lakhs sixty eight thousand one hundred and fifty two only) under all applicable heads, to the petitioners.

The petitioners have also filed another petition in M.V.O.P 133 of 2013 claiming compensation for the death of their mother in the same accident. By considering the facts and circumstances of the case, this tribunal is inclined to award an amount of

Rs.49,68,152/- to the petitioners.

32. Therefore, as claimed by the petitioners, this court is inclined to award the consolidated amount of

Rs.49,68,152/- (Rupees Forty Nine lakhs Sixty Eight thousand and one hundred and Fifty Two only) to the Petitioners under all applicable heads, for the death of the father of the petitioners 1 and 2 for loss of dependency and for loss of consortium to the petitioners including the transport and funeral expenses incurred by the petitioners.

33. QUANTUM :- Considering the facts and circumstances of the case and evidence available on record, this

Tribunal is inclined award Rs. 49,68,152/- (Rupees Forty Nine lakhs Sixty Eight thousand and one hundred and Fifty Two only) 20 | P a g e F A I R towards consolidated amount of compensation for the death of

N.Sreedhar Gupta.

34. In view of the above the total compensation that can be awarded to the petitioners is Rs. 49,68,152/- (Rupees Forty

Nine lakhs Sixty Eight thousand and one hundred and Fifty Two only). The Respondent Nos. 1 to 3 are jointly and severally liable to pay the compensation to the petitioners. However, the final liability is fixed on the Insurance Company i.e., the 2nd

Respondent being the insurer of the offending vehicle owned by the 2nd respondent to pay the awarded compensation amount to the Petitioners. Accordingly, the issue Nos.1 and 2 are answered.

35. Issue No.3 R e s u l t :

In the result, the petition is allowed in part with

proportionate costs by granting the following reliefs:

(i) The petitioners 1 and 2 are entitled for

compensation of Rs. 49,68,152/- (Rupees Forty Nine

lakhs Sixty Eight thousand and one hundred and Fifty Two

only) with proportionate costs and with interest at the

rate of 7.5 % p.a. from the date of the petition till the

date of realization.

(ii) The Respondent No.2 is directed to deposit

the said amount with proportionate costs along with

interest at 7.5 % p.a., within two months from the date of

this order.

21 | P a g e F A I R

(iii) The petitioner No.1 being the son and the

Petitioner Nos. 2 being the daughter of the deceased

N.Sreedhar Gupta, the awarded compensation amount of

Rs. 49,68,152/- (Rupees Forty Nine lakhs Sixty Eight

thousand and one hundred and Fifty Two only) is

apportioned at 40 % and 60 % respectively amongst the

petitioners 1 and 2:

(iv) The petitioner No. 1 is awarded for

Rs.19,87,261/- (along with accrued interest thereon) and

the 1 st petitioner is entitled to withdraw an amount of

Rs.10,00,000/- (along with accrued interest thereon)

immediately after the deposit by the 2 nd respondent and

the remaining amount of Rs.9,87,261/- (along with

accrued interest thereon) shall be deposited in his name

in any national Bank for a period of Three years.

(v) The petitioner No. 2 is awarded for

Rs.29,80,821/- (along with accrued interest thereon) and

the 2 nd petitioner is entitled to withdraw an amount of

Rs.10,00,000/- (along with accrued interest thereon)

immediately after the deposit by the 2 nd respondent and

the remaining amount of Rs.19,80,821/- (along with

accrued interest thereon) shall be deposited in her name

in any national Bank for a period of Three years.

(iv) The Advocate fee is fixed at Rs.1,500/- 22 | P a g e F A I R

(v) This award is subject to any compensation already awarded U/sec.140 of the M.V. Act;

(vi) The petitioners are not entitled for any

interest for the period where the petition was dismissed

for default and till it was restored, if any.

(vii) The balance of claim is dismissed.

Typed directly on computer to my dictation.

Corrected, signed and pronounced by me in the open court, this the 24th day of April, 2023.

Sd/- P Bhaskar Rao,

Chairman, Motor Accidents Claims Tribunal-cum- II Additional District Judge, Madanapalle.

Appendix of Evidence

Witnesses examined

For the petitioners For the Respondents

P.W.1 : N.Ranjith RW1: J.Vijaya Kumar P.W.2 : B.Vijaya Lakshmi RW2: P.Narasimha Murthy P.W.3 : V.Ananda Krishna P.W.4 : S.Malik Basha

Exhibits marked on behalf of the petitioners

Ex. A1 Certified copy of F.I.R in Crime No.64 of 2012 of Talapula P.S.

Ex. A2 Certified copy of Inquest Report over the dead body of N.Sreedhar Gupta

Ex.A3 Certified copy of M.V.Inspector’s Report

Ex.A4 Certified copy of Post Mortem Certificate of the deceased N.Vishalakshi.

Ex.A5 Certified copy of Charge Sheet in C.C. No.41 of 2012 on the file of J.M.F.C., Kadiri 23 | P a g e F A I R

Ex.A6 Original Aadhar Card of N.Sreedhar Guptha

Ex.A7 Income tax returns of HUF for the assessment year 2011-2012 to 2013-2014

Ex.A8 Income tax returns by the individual for the assessment year 2011-2012 to 2013-2014

Ex.A9 Certified copy of extract of driving license of late N.Sreedhar Gupta issued by RTA., Hindupur.

Ex.A10 Certified copy of sketch relating to the scene of offence prepared by the Investigation Officer in Cr.No.61 of 2012 of Talupula Police Station, Anantapur District.

Ex.X1 Copy of list of partners

Ex.X2 Page No.9 of ledger for the year 2010-11

Ex.X3 Ledger account.

Ex.X4 Ledger account from 01-04-2012 to 31-03-2013

Ex.X5 Document showing the salaries to Directors

Ex.X6 Authorisation letter

Ex.X7 Attested copy of driving license

Exhibits marked on behalf of the 3 rd respondent

Ex.B1 Certified copy of Insurance policy relating to offending vehicle

Sd/- P Bhaskar Rao,

Chairman, Motor Accidents Claims Tribunal-cum- II Additional District Judge, Madanapalle.

1 | P a g e A S . 2 4 o f 2 0 1 5

IN THE COURT OF THE SECOND ADDITIONAL DISTRICT JUDGE:

MADANAPALLE

Present Sri P.Bhaskar Rao, II Additional District Judge, Madanapalle

Monday, the Twenty-Fourth (24th) Day of April, 2023.

A.S. No. 09 of 2017

Between :

1) V.S.Ansar Ali, S/o late V.S.Abdul Karim Saheb, aged about 53 years,

2) V.S.Apsar, S/o late S.Abdul Karim Saheb, aged about 49 years.

3) V.S.Azgar Ali, S/o V.S.Abdul Karim Saheb, aged about 47 years,

4) V.S.Athar Ali, S/o V.S.Abdul Karim Saheb, aged about 38 years,

5) Shadu @ Shahida, W/o Ismail, aged about 28 years.

6) S.Abida, W/o S.Sanavulla, aed about 28 years,

7) V.S.Glab Jan, W/o late V.S.Abdul Karim Saheb, aged about 65 years.

All are Muslims, residing at D.No.1-80, 1-81, Ramulavari Street, N.S.Pet, Punganur.

(Appellants 1 to 6 have recognized as legal heirs of deceased 7th appellant as per orders dated 06-02- 2023 passed in I.A. No. 160 of 2023)(Defendants)

… Appellants.

And :

S.M.Sabira Begum, W/o S.M.Younusulla, aged about 41 years, Muslim, residing at D.No.4-91, Gangammagudi Street, Punganur. ( Plaintiff )

… Respondent.

On appeal against the Judgment and Decree dated 31-10-2016 on the file of learned Senior Civil Judge, Punganur, in

O.S. No. 127 of 2011

Between :

S.M.Sabira Begum, W/o S.M.Younusulla, aged about 41 years, Muslim, residing at D.No.4-91, Gangammagudi Street, Punganur.

… Plaintiff.

2 | P a g e A S . 2 4 o f 2 0 1 5

And :

1) V.S.Ansar Ali, S/o late V.S.Abdul Karim Saheb, aged about 53 years,

2) V.S.Apsar, S/o late S.Abdul Karim Saheb, aged about 49 years.

3) V.S.Azgar Ali, S/o V.S.Abdul Karim Saheb, aged about 47 years,

4) V.S.Athar Ali, S/o V.S.Abdul Karim Saheb, aged about 38 years,

5) Shadu @ Shahida, W/o Ismail, aged about 28 years.

6) S.Abida, W/o S.Sanavulla, aed about 28 years,

7) V.S.Glab Jan, W/o late V.S.Abdul Karim Saheb, aged about 65 years.

All are Muslims, residing at D.No.1-80, 1-81, Ramulavari Street, N.S.Pet, Punganur.

… Defendants.

This Appeal Suit is coming on 17-04-2023 before me for final hearing in the presence of Sri B.Bhujanga Rao, Advocate for

Appellants; and Sri Y.Sambasiva Reddy, Advocate for the Respondent; upon hearing their arguments and on perusing the relevant material on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. This is an Appeal filed by the appellants / defendants under Order 41 Rule 1 of CPC to allow the appeal with costs throughout by setting aside the decree and judgment in O.S.No.127 of 2011 on the file of the learned Senior Civil Judge, Punganur dated 31- 10-2016 and to dismiss the suit with costs throughout.

2. The brief facts of the plaintiff's case are as follows:

The plaintiffs submits that D1 to D4 are brothers and D5 and D6 are sisters of D1 to D4. The defendant Nos. 1 to 6 are the children of late

Vakkala Shaik Abdul Kareem Saheb, through his first wife. D7 is the 3 | P a g e A S . 2 4 o f 2 0 1 5 2nd wife of late Vakkala Shaik Kareem Saheb. The suit schedule property was owned and possessed by the V.Kareem Saheb and the defendants have succeeded to his estate after his death.

(a) While so on 21-07-2010 D1 to D4 have agreed to sell the suit schedule property to the plaintiff for a valid consideration of

Rs.5,40,000/- and also agreed to bring the defendants 5 to 7 at the time of execution of sale deed. On the same day, D1, D2 and D4 have received Rs.1,10,000/- each and also executed three separate promissory notes to acknowledge the receipt of part of sale consideration in favour of plaintiff’s husband. The defendants 1 to 4 have also executed an agreement of sale in favour of the plaintiff on the same day. On 14-10-2010 the D3 received Rs.1,10,000/- and also executed a promissory note in favour of plaintiff’s husband. The said promissory notes executed by D1 to D4 are only as additional security and the plaintiff agreed to pay the balance of sale consideration within two months to obtain the regular registered sale deed. The plaitniff approached D5 to D7 and offerred to receive the balance of sale consideration of Rs.1,00,000/-, but D5 to D7 insisted payment of

additional amount of Rs.20,000/-. On 22-11-2010 the plaintiff paid

amount to D5 to D7 of Rs.1,20,000/- and also obtained agreement of sale. The plaintiff has paid entire sale consideration of Rs.5,60,000/- to all the defendants.

(b) The defendants have failed to execute registered sale deed in spite of the plaintiff expressed his willingness to perform his part of contract. The plaintiff got issued legal notice dated 03-08-2011 to the defendants with a request to attend the SRO, Punganur on 10-08- 2011 to perform their part of contract. The defendants received the notice and they sent reply notice on behalf of D1 to D4 with false 4 | P a g e A S . 2 4 o f 2 0 1 5 allegations. The defendants fails to attend the SRO on 10-08-2011.

The plaintiff seeking relief of specific performacne. The defendants are liable to pay damages to the plaintiff for use and occupation of the suit house. Hence, the suit is filed.

3. The 1st defendant filed written statement by denying the plaint allegations. It is further contended that D1 has succeeded the suit schedule property and he is in possession and enjoyment of the same along with other defendants. The defendants never executed agreement of sale in favour of the plaintiff. They never received

Rs.1,10,000/- each from the plaintiff. The defendants never executed promissory notes in favour of husband of the plaintiff. The defendants have received Rs.10,000/- from the husband of the plaintiff

S.N.Younusulla and the defendants gave empty signed promissory notes to him and taking advantage of the availability of empty promissory notes, the plaintiff and her husband created the documents. They never executed the agreement of sale in favour of the plaintiff. D1 not aware of the plaintiff’s transaction with D5 to D7.

The suit is filed with mala fide intention. The cause of action is a false one. The defendant No.1 prays to dismiss the suit with costs.

4. D2 to D4 adopted the written statement of D1.

5. D7 filed written statement by denying the plaint averments. D5, D6 and D8 filed memo adopting the written statement of D7. It is further contended that there is no contract in between the plaintiffs and the defendants and the said documents are created and fabricated one. The plaintiff is not entitled to any relief sought in the plaint. These defendants are not aware of the transactions between the plaintiff and other defendants. These defendants have no intention to sell the property. The plaintiff is not entitled for any damages.

5 | P a g e A S . 2 4 o f 2 0 1 5

Except the suit house there is no other house for these defendants.

The cause of action is false one. The plaintiffs filed the suit to have wrongful gain. Hence, the suit is liable to be dismissed with costs.

6. The trial court has settled the following issues for the purpose of trial :

(1) Whether the plaintiff is entitled to the specific

performance of contract against the defendants for the

execution of registered sale deed dated 21-07-2010?

(2) To what relief?

The court again framed the issues for convenience sake (1) Whether the plaintiff is entitled to have a regular

registered sale deed from D1 to D7 in pursuance of the

unregistered sale agreement dated 21-07-2010 and agreement of sale dated 22-1-2010?

(2) To what relief ?

7. To substantiate the case of the plaintiffs, Pws. 1 to 4 are examined and Exs.A1 to A9 are marked. On behalf of the defendants

DW1 was examined and no documents are marked.

8. After full-fledged trial, the trial court decreed the suit directing the defendants to execute regular registered sale deed in terms of agreement of sale in favour of the plaintiff within two months.

The claim of the plaintiff for damages was dismissed.

9. Being aggrieved with the same, the defendants / appellants filed the present appeal with the following grounds :

6 | P a g e A S . 2 4 o f 2 0 1 5

Appellant No.7 died and Appellant Nos. 1 to 6 were

recognized as the Legal heirs of the 7 th Appellants as per the

orders in I.A.No.160 of 2023 dated 06-02-2023.

The decree and judgment of the lower court is contrary to law and weight of evidence and lower court is imported with wrong surmises and presumptions. The trial court grossly erred in deciding the issue No.1 aznd additional issue No.1 when there is a clear contradictions with regard to the alleged sale consideration of suit property which is mentioned as Ts./5,40,000/- under Ex.A1 and

Rs.5,60,000/- in Ex.A4 and this itself shows the doubtful nature of the suit transaction. The plaintiff is nto entitled for the equitable relief of specific performance. The recitals of Ex.A1 which shows that advance amount of Rs.3,30,000/- was paid by way of executing pronotes by appellant Nos. 1, 2, and 4 and balance of sale consideration is shown as Rs.2,10,000/- which was agreed to be paid within two months and the plaint pleadings and evidence are quite contra to the same.

Particularly in view of creation of Ex.A3 pronote alleged to have executed by appellant No.3 on 14-10-2010.

(a) That the contention of the plaintiff, that plaintiff and her husband with the help of common attestors, PW2 in all the documents i.e., Exs.A1 to A4 who is the brother in law of the plaintiff and created

Ex.A1. The trial court fails to see that there is no recitals in Ex.A1 that the defendants 1 to 4 have agreed to secure the presence of D5 to D7 to execute the sale deed. The Ex.A4 also created one. The plaintiff has not approached the court with clean hands. The plaintiff fails to prove the execution Exs.A1 and A4. The alleged endorsement dated 14-10-2010 was made on the reverse of the agreement of sale which was canceled and there was no explanation with regard to said 7 | P a g e A S . 2 4 o f 2 0 1 5 endorsement and the entire transactions under Exs.A1 to A4 are false one. The suit documents are created one. The trial court failed to appreciate the evidence of Pws. 1 to 4. The trial court further failed to consider the cross examination of Pws. 1 to 4. The trial court further fails to consider the liability on the plaintiffs. The trial court further fails to observe about the Ex.A8 the custody of the document. The trial court further fails to consider the Ex.A8 document stood in the name of Bandlapalli Abdul Rahim and Abdul Rahim and two persons are having half share each and how the defendants execute the sale agreement for entire extent. The trial court ought to have reject the evidence of Pws. 1 to 4 and Exs.A1 to A4. Hence, the appeal.

10. The points for consideration in this appeal are :

(1) Whether the Defendants 1 to 4 have executed Ex.A1 agreement of sale dated 21-07-2010 and also executed three promissory notes as security as contended by the plaintiffs ?

(2) Whether D5 to D7 have executed Ex.A4 agreement of sale

dated 22-11-2010 ?

(3) Whether the defendant Nos. 1 to 4 have no right to execute agreement of sale for entire suit schedule property as pr

Ex.A8 registered sale deed dated 29-04-1959 ?

(4) Whether Exs.A1 and A4 agreement of sale are supported with consideration in cash ?

(5) Whether the impugned decree and judgment of the trial court warrants for interference or not ?

POINTS : 1 TO 5

11. The case of the appellants / defendants is that they never executed Ex.A1 agreement of sale dated 21-07-2010 and Ex.A4 8 | P a g e A S . 2 4 o f 2 0 1 5 agreement of sale dated 22-11-2010. There was no passing of consideration under Exs. A1 and A4. As per Ex.A8 registered sale deed dated 29-04-1959, the father of the defendants have got half share in the suit schedule property and they had no right to execute

Exs.A1 and A4 in favour of the plaintiff in respect of entire property.

There was no explanation on the reverse side of Ex.A1 and there was a struck off portion dated 14-10-2010. The appellants further submits that the plaintiff did not approach the court with clean hands to seek the discretionary relief of specific performance against the appellants.

12. The learned respondents’ counsel submit that the trial court has rightly decreed the suit in favour of the plaintiff by evaluating oral and documentary evidence. There are no grounds to interfere with the judgment passed by the learned Senior Civil Judge,

Punganur in O.S. No.127 of 2011. Except the oral evidence of DW1, there is no other evidence on record to prove the case of the defendants. The other defendants have not choosen to examine themselves as witnesses on behalf of the defendants’ case. Ex.A8 registered sale deed dated 29-04-1959 handed over by the defendants to the plaintiff and also executed Exs.A2 and A3 promissory notes as security. The recitals of Exs.A1 and A4 agreements of sale are binding on the appellants. The respondents’ counsel further submit that there was no specific pleadings in the written statement to raise the objections at the appellate stage.

13. As per Ex.A1 unregistered agreement of sale dated 21-07- 2010 said to have executed by D1 to D4 in favour of plaintiff for a valid sale consideration of Rs.5,40,000/-. The recitals further discloses that the vendor’s father Abdul Kareem Saheb purchased the property 9 | P a g e A S . 2 4 o f 2 0 1 5 from Shaik Shamshu Saheb and the recitals further discloses that the vendors said to have received cash of Rs.3,30,000/- from the plaintiff in the presence of attestors as advance sale consideration. On the date of Ex.A1, vendors 1, 2 and 4 have separately executed promissory notes in favour of vendee and further agreed to pay the balance sale consideration of Rs.2,10,000/- within two months. The agreement of sale was executed on non-judicial stamps worth of

Rs.100/- and the stamps were purchased in the name of V.S.Ansar S/o

Abdul Kareem Saheb i.e., the first vendor, but not stands in the name of vendee. One K.Munirajachari of Punganur got prepared Ex.A1 on

Telugu computer. The schedule contains house bearing door No.1- 80,1-81 with assessment No.1010000090 HSC.No.152 along with vacant site with specific boundaries with absolute and full share over three sides of boundary wall and half share over the southern side boundary wall. The construction of stones with terrace also covered by the schedule of Ex.A1.

14. Ex.A2 consists of three promissory notes dated 21-07- 2010, each promissory note for Rs.1,10,000/- said to have executed by Defendants 1, 2 and 4 in favour of S.M.Unusulla, the husband of the plaintiff. The recitals of Ex.A1 discloses that Defendants 1, 2 and 4 have executed three promissory notes in favour of plaintiff. The purpose of borrowing of the principal amounts for the purpose of his family expenses and also to discharge sundry debts and the interest is stipulated at Rs.2/- per Rs.100/- The date of execution of Ex.A2 i.e., three promissory notes and Ex.A1 agreement of sale is one and the same. PW1 S.M.Sabira Begum clearly admitted in her cross examination that except Ex.A1 agreement of sale no other documents have been executed on that date. The recitals of Ex.A1 discloses D1,.

10 | P a g e A S . 2 4 o f 2 0 1 5

D2 and D4 said to have executed promissory notes in favour of the plaintiff. Whereas, Ex.A2 promissory notes stands in the name of the husband of the plaintiff, by name Unusulla. PW1 herself clearly admitted that there was no any other document executed on the date of Ex.A1. The recitals of Ex.A1 further discloses that cash of

Rs.3,10,000/- was paid to the defendants 1, 2 and 4. It appears, D3 has not executed any promissory note on the alleged date of Ex.A1.

15. Ex.A3 promissory note dated 14-10-2010 executed by D3 in favour of husband of the plaintiff for a sum of Rs.1,10,000/- for the purpose of his family expenses. Ex.A3 said to have been executed after two months of execution of Ex.A1. Ex.A4 is the unregistered agreement of sale dated 22-11-2010 said to have executed by D5 to

D7 in favour of plaintiff. The recitals of Ex.A4 shows that vendee has paid cash of Rs.1,20,000/- to the vendors. The property is shown as house bearing Door No. 1-180, 1-81 with assessment No. 1010000090

HSC 152 with same boundaries as mentioned in Ex.A1. Ex.A5 is the office copy of legal notice dated 03-08-2011 got issued by S.M.Sabira

Begum, the plaintiff to the defendants. Ex.A6 is the reply notice got issued by D1 to D4 dated 10-08-2011. Ex.A7 is the reply notice dated 12-08-2011. Ex.A8 is the registered sale deed dated 29-04-1959 executed by Shamshuddin Saheb in favour Abdul Karem Saheb and

Abdul Rahiman Saheb. It is made it clear that the father of the defendants late Abdul Kareem Saheb got only half share under Ex.A8 scheduled property. It appears that the vendors of Exs.A1 and A4 have got half share in the suit schedule property.

16. No person can transfer better title than that he possess, as per the decision reported in 2009 (1) ALT page No.256 in between 11 | P a g e A S . 2 4 o f 2 0 1 5

Dr.Yedla Ramesh Naidu versus Sub Registrar, Sabbavaram. As per the above principle of law, the defendants have no right over the entire suit property to execute Exs.A1 and Ex.A4 agreements of sale in favour of the plaintiff.

17. PW1 further admitted in his cross examination that he never obtained signatures from the Abdul Rahiman Saheb S/o Abdul

Raheem. PW1 further admitted that he did not inform to Abdul Rahim about Exs.A1 and A4. The counsel for the defendant suggested to

PW1 that D1 to D4 never subscribed their signatures in Ex.A1 and that they never sell the property under the agreement of sale and the same was denied. PW1 further admitted that two months after Ex.A1, Ex.A4 was executed in favour of the plaintiff and D1 to D3 have not attested in Ex.A4 to prove that D5 to D7 had agreed to execute the sale deed along with D1 to D4. The defendants’ counsel suggested to PW1 that

Ex.A4 is created for the purpose of wrongful and the same was created to save the limitation. PW1 further deposed that herself and her husband purchased the stamp papers from the Registrar’s Office.

Ex.A4 the non-judicial stamp paper was purchased in the name of

S.Gulabjan. It appears that Ex.A1 stamp and Ex.A4 stamps were not purchased in the name of the plaintiff. PW1’s evidence is that herself and her husband purchased the stamps cannot be accepted. Ex.A9 is the 3 blank Rs.10/- worth stamp papers purchased at the office of Sub

Registrar, Punganur in the name of Sabira Begum on 10-08-2011.

PW1 further admitted that initially D1 to D4 have executed Ex.A1 agreement sale and time was fixed for two months. PW1 clearly admitted that she did not show her readiness and willingness to perform her part of contract within the stipulated time. The defendants’ counsel argued that Ex.A4 is created for the purpose of 12 | P a g e A S . 2 4 o f 2 0 1 5 saving limitation and D1 to D4 never executed Ex.A1. The defendants’ counsel further argued that Ex.A1 is not supported by consideration.

The vendors have no right to execute agreements of sale for the entire property covered under Ex.A8. PW1 further admitted that she did not pay the remaining balance of sale consideration of Rs.2,10,000/- to the defendants 1 to 4 within two months as stipulated in Ex.A1. PW1 further admitted that she had not taken any steps immediately after completion of two months and she got issued legal notice after lapse of seven months from the stipulated time. PW1 further admitted that it is true Saifulla one of the attestors is own brother of her husband.

PW1 further admitted that Nisar and Saifulla are the distant relatives of her husband.

18. PW2 S.Saifullah clearly admitted in his cross examination that the plaintiff is her sister in law by courtsy. He cannot say the date of first document when he put his signature and he further deposed that he put his signatures on different dates. PW2 further deposed that D1 to D3 received amounts from the plaintiff on the same day. PW2’s evidence is contrary to the contents of Ex.A2 promissory notes and the recitals of Ex.A1. PW2 further deposed that he cannot say who is the scribe of Ex.A1, but the same was scribed near MRO’s office. He further deposed that two or three months later, he put his signatures on another document and he cannot say the names of the parties in Ex.A4.

19. PW3 K.Munirajachari deposed that he got prepared Ex.A1 executed by D1 to D4 in favour of the plaintiff in his office. He prepared Ex.A2 and A3 pronotes in favour of husband of the plaintiff only for the identification of taking money. He never gone through 13 | P a g e A S . 2 4 o f 2 0 1 5 any previous record to prepare Ex.A1, but he heard the property is ancestral property. The defendants’ counsel suggested to PW3 that no promissory notes were executed on that day and the same was denied by PW3.

20. PW4 N.Rajendra Prasad, the Document Writer deposed that he prepared Ex.A4 dated 22-11-2010 executed by D5 to D7 in favour of the plaintiff. D5 has purchased the stamps. The document was executed at the house of Chand Basha. The defendant’s counsel suggested to PW4 that he never prepared any document and that no amount was paid to D5 to D7 and that they never executed any document in favour of the plaintiff and the same was denied by PW4.

21. DW1 V.S.Ansar Ali deposed that himself and his brothers have borrowed Rs.10,000/- from the husband of the plaintiff only and they have executed empty promissory notes in favour of husband of the plaintiff and they got filled the suit promissory notes. DW1 further deposed that they suspected that plaintiff and her husband created the bogus documents. DW1 clearly deposed in his cross examination when Ex.A8 is shown to him is a sale deed and admitted the same it was kept with the husband of the plaintiff as security. DW1 further deposed that the husband of the plaintiff demanded to deposit Ex.A8 towards security for the loan covered under Exs.A2 and A3. DW1 further admitted that he did not mention about Ex.A8 in reply notice as security. He did not witness the Exs.A1 and A4 filed in this court and he further deposed that they never executed Exs.A1 and A4. He had no enmity with PW2 and one Nisar who are the attestors of Ex.A2.

22. The learned trial judge observed in page No.10 that except that nothing was stated in the written statement, it goes to show that 14 | P a g e A S . 2 4 o f 2 0 1 5 only for nominal purpose the defendants filed the written statement and they are not seriously contested and they have not filed any document to disprove the claim of the plaintiff. The trial court wrongly appreciated the evidence on record and came to wrong conclusion by fixing the liability on the defendants to disprove the agreements of sale and other documents filed by the plaintiff.

23. As per the decision reported in 2017 (3) ALT page No.550

DB inbetween Killamsetty Eswari and another versus Pedada Tulasirao

Died per Lrs, wherein the Honourable DB observed, “Readiness and willingness – one it is found that readyness on the part of the plaintiffs had not been established, the plaintiffs would not be entitled for a decree of specific performance.”

24. The above principle of law is clearly applicable to the present suit facts on hand. Ex.A1recitals shows that two months time was fixed for execution of the registered sale deed and payment of balance of sale consideration. The plaintiff has failed to perform her part of contract within the stipulated time.

25. As per the another decision reported in 2002(3) APLJ page

No.30 SN in between K.Sthyanarayanaz versus Qamarunnisa Begum, wherein the Honourable High Court observed that, “suit for specific performance. In an agreement of sale time was extended by mutual understanding. Plaintiff / purchaser did not approach the court with clean hands and not entitled to the relief of specific performance.”

26. The above principle of law is clearly applicable to the present facts of the case. The plaintiff did not approach the court with clean hands to seek the equitable relief of specific performance.

15 | P a g e A S . 2 4 o f 2 0 1 5

27. As per another reported in 2002 (3) APLJ page No.31 SN in between Ramanivas Gupta versus Maliram, wherein sthe Honourabel

High Court held that, Specific Relief Act under section 17 (B) – decree for specific performance cannot be passed against other coparceners of a Hindu Joint family who did not execute the agreement.” The above principle of law is clearly applicable to the facts of present case.

28. All the defendants have not executed single document of agreement of sale and passing of considerations also not proved satisfactorily. Exs.A2 and A3 promissory notes are not reflected in

Ex.A1 agreement of sale. The recitals of Ex.A1 show that on that day cash was paid. The learned appellant counsel relied upon a decision of the Honourable High Court of Judicature of Telangana and A.P., reported in 2017(4) ALT page No.356 in between S.Sura Reddy versus

K.Lakshmi and another, wherein the Honourabel High Court held that, “Doubtful attendant circumstances and however strong the oath under which they testify, with so many doubtful attendant circumstances, their evidence could only be liable to be discarded. The above principle of law is clearly applicable to the present suit and the evidence of Pws. 1 to 4 not trustworthy.”

29. The appellant counsel relied upon another decision reported in 2000(5) ALT page No.759 in between Pottem Subbarayudu and another versus Kothapalle Gangul Naidu, wherein it was held that,

Section 10 of the Specific Performance – agreement of sale- suit for specific performance. Suit property belongs to D1 to D3. Agreement executed by D1 and D2 in respect of share of 3rd defendant also. No recital in the agreement that it was executed on behalf of the 3rd defendant also. The above decision clearly applicable to the present 16 | P a g e A S . 2 4 o f 2 0 1 5 facts of the suit on hand and Ex.A1 does not contain D1 to D4 executed Ex.A1 on behalf of other defendants.

30. The appellant counsel further relied upon a decision reported in 2010(4) ALT page No.674 in between G.Ramanamma versus P.Chiranjeevi Rao, wherein the Honourable High Court held that, Specific Relief Act, Sections 10, 12 and 20 discretionary jurisdiction to decree specific relief not automatic, even if plaintiff proves agreement and performance. Conduct of parties, length of time when plaintiff approaches court, inability of plaintiff to establish contentions and pleas raised in the plaint all collectively required to be taken into consideration for the purpose of exercise of discretion by the court under section 20 of the Act.

31. The learned counsel for the Respondent/plaintiff has relied upon a decision reported in 2022 (1) ALT, 151 (A.P) in a case between

Musale Madhusudhana Rao and another versus Karre Chinna

Subbarayudu and another, wherein our Honourable High court observed that, “Grant of relief – If section 12(3)(b)(i) and (ii) of this

Act are applied in fact grant of relief under Ex.A1 agreement for sale is clearly discernible and permissible”

32. Another decision cited by the learned counsel for the respondent / plaintiff is delivered by the Madras High Court, in a case between M.N.Rangaswamy, appellant versus K.Govindaswamy and three others, in S.A.No.553 of 2009 and M.P.No. 02 of 2011, wherein it is observed that “Once again, the burden was on the defendant to display and demonstrate as to how it was inequitable to enforce the agreement to sell, but he has not projected any evidence in that regard.” 17 | P a g e A S . 2 4 o f 2 0 1 5

33. The facts of the above cited decisions, are not directly applicable to the facts of the present case on hand since the plaintiff has to prove her case but she cannot depend upon the weakness of the defendants’ case.

34. In the light of the above case law the trial court fixed the liability on the defendants stating that they failed to prove their case on the ground that they have not filed any documents in support of their contentions. The initial burden lies on the plaintiff to prove the execution of Exs. A1 and A4 agreement of sales and they have got right to execute agreement of sales in favour of the plaintiff with absolute rights. Exs.A2 and A3 promissory notes stood in the name of husband of the plaintiff, but not in the name of the plaintiff. The plaintiff further failed to prove the passing of consideration under

Exs.A1 and A4. The plaintiff did not approach the court within the time fixed in Ex.A1. The plaintiff filed to show her readiness and willingness to perform her part of contract. The evidence of Pws. 1 to 4 coupled with documentary evidence Exs.A1 to A9 does not inspiring confidence to grant the discretionary relief o specific performance in favour of the plaintiff. I am of the opinion that the plaintiff has not approached the court with clean hands. The plaintiff fails to remove the suspicious circumstances surrounding Exs.A1 to A4 to get the relief of specific performance. The lower court’s judgment is liable to be set aside by dismissing the suit filed by the plaintiffs / respondents.

Point No.5

32. In the result, the appeal is allowed by setting aside the decree and judgment Dated 31-10-2016 passed in O.S. No. 127 of 2011 on the file of the learned Senior Civil Judge, Punganur. The suit 18 | P a g e A S . 2 4 o f 2 0 1 5 in O.S. No. 127 of 2011 on the file of the learned Senior Civil Judge,

Punganur is hereby dismissed. No costs throughout.

Typed to my dictation, corrected and pronounced by me in the open court this the 24th day of April, 2022.

Sd/- P Bhaskar Rao,

II Additional District Judge, Madanapalle.

Appendix of Evidence

N I L

Sd/- P Bhaskar Rao,

II Additional District Judge, Madanapalle

1 | P a g e F a i r

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL – CUM –

COURT OF THE SECOND ADDITIONAL DISTRICT JUDGE:

MADANAPALLE

Present :: Sri P.Bhaskar Rao, Chairman, Motor Accidents Claims Tribunal -cum-II Additional District Judge,

Madanapalle.

Monday, the Twenty-Fourth (24th) day of April, 2023

M.V.O.P. No. 133 of 2013

Between :

1) Nagella Ranjith, S/o late N.Sreedhar Gupta, aged about 23 years.

2) Nagella Sindhuja, D/o late N.Sreedhar Guptha, aged about 18 years.

Both are Hindus, residing at Door No.10/24, Nehru Bazaar, K.R.C. Stores, Madanapalle, Chittoor District.

.. Petitioners.

And :

1) M/s Guru Raghavendra Roadways, No.120, 1st Floor, K.T.S. Nilaya, 6thCross, Kalasipalyam New Extention, Bangalore-560002, (Owner of the Lorry No. KA-01-AA-1463)

2) M/s Shriram General Insurance Company Limited, represented by its Managing Director, E-8, EPIP, RIICO Industrial Area, Sitapura, Jaipu (Raj.)-302

022. (Policy No.10003/31/13/262736 Valid From 17- 09-2012 to 16-12-2013)

3) G.B.Nagarajappa, S/o Beera Lingappa, aged about 28 years, Hindu, resident of Chikka Kurabalahalli Village, Gowribidanuru Taluk, Chickballapura District, Karnataka State. (No. 3 is added as per orders passed in I.A.No.972 of 2015 dated 06-10-2015)

.. Respondents.

This petition coming on 18-04-2023 before me for final hearing in the presence of Sri. S.Badrinath Gupta, Advocate for petitioners; Sri G.Janardhana Reddy, Advocate for the 2nd 2 | P a g e F a i r

Respondent; 1st and 3rd respondents having remained exparte; upon hearing the arguments on both sides and on perusing the relevant material on record and having stood over for consideration till this day, this court delivered the following :-

O R D E R

1. This is a petition filed by the petitioners to direct the respondents to pay a sum of Rs.15,00,000/- towards compensation for the death of N.Visalakshi, the mother of the petitioners, in a road accident that took place on 03-01-2012 at about 05-00 P.M., near

Batrepalli Cross on Kadiri to Pulivendula road, Talapula Mandal,

Anantapur District due to the rash and negligent driving of the 3rd respondent while driving the offending lorry bearing its registration

No.KA-01-AA-1463; together with future interest and for costs.

2. The brief facts of the petition contents are as follows :

The deceased N.Visalakshi, was the mother of the petitioners 1 and 2. The said N.Visalakshi and her husband Sreedhar Guptha were proceeding from Kadiri to Pulivendela road in a Car bearing

No. AP 02 R 2321, on 03-12-2012 at about 05-00 P.M., near

Batrapalle cross and the Respondent No.3 being the driver of the offending vehicle i.e., Lorry bearing its registration No.KA 01 AA 1463 in a rash and negligent manner and hit the car of the deceased. Due to which No.Visalakshi and her husband

Sreedhar Guptha died on the spot. The other inmates of the car sustained grievous injuries. Talupula Police registered a case in

Cr.No.64 of 2012 under section 337, 338 and 304-A of iPC and 3 | P a g e F a i r after investigation filed charge sheet in CC No.41 of 2013 on the file of J.F.C.M., Kadiri.

(a) Prior to the accident N.Visalakshi was hale and healthy and she was a successful financier, chit promoting

Commission Agent in M/s Revathi Chit Promoters & Financiers and M/s Revathi Chits Kadiri Private Limited and she was an active member of Arya Vysya Mahila Sangham. Due to the death of N.Visalakshi, the petitioners have lost their parental care and also head of the family. The petitioners have not settled in their life and they are depending upon their parents.

Their parents died in the same accident and the petitioners are entitled for substantial compensation amount due to mental agony, loss of enjoyment, company of their father and mother, loss of emotional support, loss of financial security and serious threat of future. Basing upon the assessment and loss sustained by the petitioners and other factors into consideration, the claim of Rs.15,00,000/- was made by the petitioners in this petition.

The sudden loss sustained by the petitioners due to the death of their parents has to be remuneratively compensated. Due to the death of their parents, the petitioners are bereaved, good healthy proposals would be near impossible as they are of marriageable age.

(a) The 1st respondent is vicariously liable for the acts done by the driver 3rd respondent. The said vehicle is owned by 1st respondent and insured with the 2nd respondent / Insurance 4 | P a g e F a i r

Company. Therefore, all the respondents are jointly and severally liable to pay compensation amount to the petitioners.

3. Respondent Nos. 1 and 3 remained exparte.

4. 2nd Respondent / Insurance Company filed written statement and denied the contents of the petition. It is further contended in the written statement that 2nd respondent is not admitting petition allegations and that the alleged income of the deceased as shown in the petition. The person driving the vehicle has no relation in force as on the date of accident to drive the vehicle. This respondent seeks protection under sections 147 and 149 of M.V. Act. The R1 has failed to comply the proviso 137 (c) of M.V. Act. The petitioners have to prove that due to rash and negligent driving of R3, the accident occurred. The petitioners are claiming compensation excessively and they are not entitled for the interest on non-pecuniary damages. 2nd Respondent denied the age of the deceased and other facts. It is further denied that the deceased was a financial, chit promoter etc.,

(a) It is further submitted that the offending vehicle was insured with this respondent i.e., R2. The petition is bad for non-joinder of insurance company of the car and it’s owner.

Hence prayed to dismiss the petition with costs.

5. Basing on the above pleadings, the tribunal settled the following issues for the purpose of trial :

(1) Whether the accident occurred due to rash and negligent manner of the driver of crime vehicle 5 | P a g e F a i r bearing No. KA 01 AA 1463 resulting which death

caused to the deceased namely N.Visalakshi?

(2) Whether the petitioners are entitled for the compensation as claimed for ?

(3) To what relief?

6. During the course of trial, PWs. 1 to 4 were examined and Exs.A1 to A10 and X1 and X2 marked on behalf of the petitioners. On behalf of the respondents, R1 was examined and

Ex.B1 marked. Exs.X1 and X2 marked through PW-.4 S.Malik

Basha.

7. The first petitioner N.Ranjit examined himself as PW1 and reiterated the petition averments in his chief affidavit and marked Exs.A1 to A6. PW2 B.Vijayalakshmi, the Income Tax

Inspector was examined and through her Exs.A7 and A8 marked. One V.Anandra Krishna, who is inmate of the car at the time of accident and an eye witness to the accident was examined as PW3. PW4 S.Malik Basha working as Senior

Assistant in the Office of Transport Officer in Sathya Sai District and through him, Exs.X6 and X7 got marked.

8. RW1 J.Vijayakumar, the Legal Officer was examined on behalf of 2nd Respondent and reiterated the contents of the written statement and marked Ex.B1.

9. The petitioners herein have filed MVOP No. 134 of 2013 against the Respondents for the of death of their father 6 | P a g e F a i r

N.Sreedhar Gupta in the same accident. The petitioners have adduced oral evidence of Pws. 1 to 4 and documentary evidence of Exs.A1 to A10 for the purpose of claiming compensation of

Rs.15,00,000/-.

10. The petitioners and Respondent No.2 have taken similar plea in both M.V.O.P. Nos. 133 of 2013 and 134 of 2013.

The respondent No.2 denied the income of the deceased

Visalakshi. It is not in dispute both the deceased are the parents of the petitioners. It is also not in dispute that the petitioners have lost their parents in the same accident and they have not settled well. The petitioenrs were totally depending upon of the income of their parents. It is also not in dispute that the Talupula Police have registered a case under section 337, 304-A IPC basing on the complaint lodged by N.Sathyanarayana

Gupta against the driver of the lorry bearing No. KA 01 AA 1463.

The certified copy of FIR is marked as Ex.A1. ExA2 is the inquest report of N.Visalakshi and the age of the deceased is shown as 45 years and he died in the road accident. Ex.A3 is the MV I Report of the Accident and it contains the crime vehicle

No.KA 01 AA 1463 and it contains RH side wind screen damages,

RH side body corner damaged, RH side bumper. It shows the car of the deceased was proceeding on the left side of the road.

Ex.A4 is the certified copy of post mortem report of N.Visalakshi and his age is shown as 45 years. The cause is shown as due to head injury and other injuries on the vital organs like brain.

Ex.A5 is the certified copy of charge sheet filed against 3rd 7 | P a g e F a i r

Respondent in C.C. No. 41 of 2012 on the file of JFCM, Kadiri.

Ex.A6 is the Aadhar Card of the deceased N.Visalakshi and she was born in the year 1969.

11. PW2 B.Vijayalakshmi the Income Tax Inspector deposed that as per Ex.A7 is the memo filed by the Income Rax

Officer and Ex.A8 is the CDS certificate filed on behalf of the deceased N.Visalakshi for the accounting years 2010-2011 in a sum of Rs.10,000/- on 17-09-2011, 20-11-2012 and an amountof Rs.15,000/- on 25-04-2012. PW2 clearly stated in her evidence that the deceased N.Visalakshi was having PAN card with No. AHGPV8240G. The said Visalakshi was not filed the returns in Department evidence even though TDS was deducted as shown Ex.A7 for the Assessment year. The TDS amount is

Rs.15,000/- which is calculated at the rate of 10% on the principle amount and Rs.10,000/- was deducted for the year 2011-12 on Rs.1,00,000. During her cross examination, PW2 stated that basing on the information available under 26-AS she is giving evidence before the court. The said Visalakshi has not filed income tax returns and the same was mentioned in the memo filed by the Income Tax Department.

12. PW3. V.Anandakrishna deposed that he witnessed the accident and the deceased N.Visalakshi is his co- sister, who died in the accident. PW4 S.Malik Basha, Senior

Assistant in the DTO Officer, Srisathyasai District. Ex.X6 is the authorization letter and Ex.X7 is the attested copy of driving license of N.Sreedhar Guptha to prove that the father of the 8 | P a g e F a i r petitioners got valid driving license at the time of accident. R2 cannot contend that the husband of the deceased N.Sreedhar

Gupta had no valid driving license.

13. RW1 J.Vijaya Kumar, legal officer working in the 2nd

Respondent’s office deposed that due to rash and negligent driving of the husband of deceased, the accident was occurred and marked Ex.B1 the copy of policy. RW1 is not the eye witness to the accident. Rw.1’s evidence clearly show that the crime vehicle was insured with 2nd Respondent / Insurance company.

14. The initial burden lies on the petitioners to prove that the petitioenrs are entitled to get compensation of

Rs.15,00,000/-. The 2nd respondent denied the source of income of the deceased N.Visalakshi and the TDS documents are created one. The counsel for the 2nd respondent submitted that the Income Tax returns were not filed by the deceased

N.Visalakshi as per the evidence of PW2. Hence, the Ex.A7 cannot be considered. The petitioner’s counsel relied upon several judgments to prove the rash and negligent driving of R3 and also income tax returns can be taken into consideration to grant compensation. He relied upon the following decision in support of his case.

(1) Sarala Verma Versus Delhi Transport corporation (2) AIR 2009 (SC) page No.3104 to assess the future prospects of the deceased.(3) AIR 2012 SC page 2185 in between Santhosh Devi 9 | P a g e F a i r

Versus National Insurance Company ( 4) AIR 2018 SC page 3107 United India Insurance Company Ltd., versus Indiro Devi and others. (5) 2022 Live Law SC 816 to accept the income tax return (6) AIR 2020 SC page 90 to determine the annual income of the deceased (7) 2022 Live Law SC 1012 to consider the income tax returns of the deceased.

15. The counsel for the 2nd respondent strongly opposed to consider the above decisions for granting compensation to the petitioners.

16. This tribunal relied upon a decision of 2023 (1) ALT page No.14 SC in between Smt. Anjali and others versus

Lokendra Rathod, wherein it is observed, “Just and fair compensation. The provisions of M.V. Act, 1988 gives paramount to the concept of just and fair compensation. It is a beneficial legislation which has been framed with the objective of providing relief to the victims or their families.”

17. As per another decision reported in AIR 2022 (SC) 4620 in between Parampal sharda and others versus Dhani Ram and others, wherein it is observed that, MV Act 168

Compensation. Deceased qualified person working as a Manager in a private firm. Income of the deceased reassessed additional amount awarded towards future prospects after deducting personal expenses and applying appropriate multiplier.

Income Rs.15,000/- per month and 40% to be added as future prospects i.e., Rs.15,000/- + Rs.6,000/-m = Rs. 21,000/-. Half of the deductions towards personal expenses i.e. Rs.21,000/- 10 | P a g e F a i r divided by 2 = Rs.10,500/-. Compensation after multiplier

Rsd.10,500/- X 12 X 18 = Rs.22,68,000/- deceased aged 23 years.

Conventional heads ; Loss towards estate and funerals

Rs.30,000/-. Loss of consortium Rs.1,20,000/- (Rs.40,000/- each to appellants 1 to 3)

Loss of consortium to mother Rs.40,000/-.

18. The above principle of law is clearly applicable to the present petition facts on hand. Taking into consideration of the income of the deceased and age, the petitioners are entitled for just and fair compensation.

19. As per the judgment of Honourable APEX Court reported in 2023 (SC) AIR 44 in between Anjali and others

Versus Lokendra Rathod. Income tax returns of the deceased during annual income assessed. 40% added future prospects.

20. The learned counsel for the petitioner submitted that the Ex.A7 is the income tax returns on behalf of Hindu

Undivided Family (HUF) and Ex.A8 is the Income tax returns submitted on behalf of the deceased individually. Therefore, he argued that if the income of the deceased is considered as per the figures shown in Ex.A8, the petitioners are entitled for more than the compensation claimed in this petition. Hence, he prayed the court to grant compensation more than the amounts claimed in the petition. He submitted citations in support of his case that the court can grant more compensation than the 11 | P a g e F a i r compensation claimed in the petition. Further, the petitioners’ counsel relied upon several judgments to prove the rash and negligent driving of 3rd Respondent and also income tax returns can be taken into consideration to grant compensation. He relied upon the following decision in support of his case.

(1) Sarala Verma Versus Delhi Transport corporation (2) AIR 2009 (SC) page No.3104 to assess the future prospects of the deceased.

(3) AIR 2012 SC page 2185 in between Santhosh Devi

Versus National Insurance Company (4) AIR 2018 SC page 3107 United India Insurance

Company Ltd., versus Indiro Devi and others.

(5) 2022 Live Law SC 816 to accept the income tax returns (6) AIR 2020 SC page 90 to determine the annual income of the deceased (7) 2022 Live Law SC 1012 to consider the income tax returns of the deceased.

16. The counsel for the 2nd Respondent strongly opposes to consider the above decisions for granting compensation to the petitioners and relied upon the evidence of

RWs. 1 and 2.

17. This tribunal relied upon a decision of 2023 (1) ALT page No.14 SC in between Smt. Anjali and others versus

Lokendra Rathod, wherein it is observed, “Just and fair compensation. The provisions of M.V. Act, 1988 gives 12 | P a g e F a i r paramount to the concept of just and fair compensation. It is a beneficial legislation which has been framed with the objective of providing relief to the victims or their families.” The 3rd

Respondent being the driver of the offending vehicle was discharging his duty and in the course of employment, under the 1st respondent as on the date accident. The offending vehicle was insured with the 3rd respondent and the insurance policy was in force at the time of accident. Kadiri Police have registered a case against the 3rd respondent, the driver of the lorry who had possessed valid driving license. The 1st and 3rd respondents remained exparte. Therefore, all the respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioners.

18. As per another decision reported in AIR 2022 (SC) 4620 in between Parampal sharda and others versus Dhani Ram and others, wherein it is observed that, “MV Act u/s 168

Compensation. Deceased qualified person working as a Manager in a private firm. Income of the deceased reassessed additional amount awarded towards future prospects after deducting personal expenses and applying appropriate multiplier.

Income Rs.15,000/- per month and 40% to be added as future prospects i.e., Rs.15,000/- + Rs.6,000/- = Rs.

21,000/-. Half of the deductions towards personal expenses i.e.

Rs.21,000/- divided by 2 = Rs.10,500/-. Compensation after multiplier Rsd.10,500/- X 12 X 18 = Rs.22,68,000/- deceased aged 23 years.

13 | P a g e F a i r

Conventional heads ; Loss towards estate and funerals

Rs.30,000/-. Loss of consortium Rs.1,20,000/- (Rs.40,000/- each to appellants 1 to 3)

Loss of consortium to mother Rs.40,000/-.

19. The above principle of law is clearly applicable to the present petition facts on hand. Taking into consideration of the income of the deceased and age, the petitioners are entitled for just and fair compensation.

20. As per the judgment of Honourable APEX Court reported in 2023 (SC) AIR 44 in between Anjali and others

Versus Lokendra Rathod. Income tax returns of the deceased during annual income assessed. 40% added future prospects.

21. In view of the above settled preposition of law, and as argued by the learned counsel for the petitioners that deceased N.Visalakshi was a house wife and also an earning person. The documentary evidence available on record to determine the income of the deceased N.Visalakshi is that of the

TDS certificate of Income tax department and the evidence of

PWs.1, 2, 3. No documentary proof is filed by the petitioner to show that the deceased N.Visalakshi was a chit agent or a chit promoter.

22. The record reveals that the deceased N.Visalakshi was earning around Rs.1,00,000/- p.a. from her individual capacity. Ex. A8 reveals the same. RW1 examined on behalf of the 2nd respondent / Insurance Company admitted in his cross 14 | P a g e F a i r examination that as per the record, the deceased N.Visalakshi had card in her name. He further admitted that the employer of the deceased deducted TDS from the salary of the deceased.

However,RW1 denied the income of the deceased as Rs.15,000/- p.m. No record submitted by the respondents to disprove the entries made in Ex. A8. RW1 denied the suggestion that the deceased N.Visalakshi was earning Rs.2,50,000/- p.a.

23. On the other hand, the learned counsel for the petitioners submitted that PW2 the Income Tax Inspector working in Income Tax Office of Hindupur has produced the income tax returns of the deceased Sreedhar Gupta. However, by considering the TDS Certificate filed by the deceased individually for the assessment year 2011-2012 as Rs.10,000/- being the 10% of annual income of Rs.1,00,000/- this court intend to arrive at the income of the deceased as Rs.1,00,000/-.

The date of accident is 03-12-2012. Even by excluding the other modes of income derived by the deceased N.Visalakshi as deposed by the witnesses examined on behalf of the petitioners, this court assessed the income of the deceased as Rs.1,00,000/- p.a., which comes to around Rs.8,333/- p.m.

26. The age of the deceased is shown as 45 years at the time of accident. The learned counsel for the petitioner submitted during his arguments that the deceased was a house wife and also a chit agent and chit promoter and she was in the prime age of earnings from all corners because of vast 15 | P a g e F a i r experience, good will, reputation, which the deceased gained from all these years. The deceased would have earned if he would have been survived for a longer period. The future prospects of the deceased are to be taken into consideration as 30% as she is a house wife cum Business woman and self employed person. In support of his case, the learned counsel

for the Petitioners relied upon a decision reported in AIR 2012

SC at page No.2185 in a case between Santhosh Devi Versus

National Insurance Company Ltd., and others, whrein it is observed by the Honourable APEX Court that “Motor Vehicle Act (59 of 1988), Section 168 – Accident compensation – Income of deceased – Increase towards future prospects – Cannot be denied to those employed on fixed wages or self employed – 30% rule has to be equally applied.”

27. This court is of the opinion by considering the facts and circumstances of the case, 30% of the earnings of the deceased N.Vuisalakshi can be assessed as future prospects. As per the decision Sarala Verma and others Versus Delhi Transport

Corporation and another reported in 2009 ACJ page 1298, 4th column of the table in 19th paragraph of the said judgment) the multiplier 14 will apply to the present case. There is documentary proof to show that the deceased was earning an amount of Rs.8,333/- p.m.. However, it is obligation on the part of the respondents 1 to 3 to pay the just and reasonable compensation to the petitioners. After consideration of oral and documentary evidence, this tribunal came to the conclusion 16 | P a g e F a i r that the respondents 1 to 3 are jointly liable to pay compensation to the petitioners. The M.V. Act being a beneficiary piece of legislature, where the interest of the claimants in paramount, the court should always endeavor to extent benefit to the claimants to the just and reasonable extent.

28. In view of the circumstances of the case and by considering the status, age, occupation business, and dependents of the deceased, the notional income of the deceased at Rs.8,333/- per month is taken into consideration for the purpose of awarding compensation to the petitioners.

Future progression is taken as Rs.2500/- p.m. Hence, the total income of the deceased can be considered as Rs.10,833 /- P.M.

In the decision reported in 2009 ACJ 1298 Hon’ble Apex Court in a case between Sarla Verma and others and Delhi Transport

Corporation and another it is observed that “having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one- third (1/3rd) where the number of dependents family members is 2 to 3; one-fourth (1/4th) where the number of dependent family members is 4 to 6; and one-fifty (1/5th) where the number of the dependent family members exceed six”

29. Therefore, towards his personal expenditure taken as Rs.2,708/- i.e., 1/4th as per settled law. Then the 17 | P a g e F a i r contribution of the income of the deceased to the petitioners and their mother can be considered as Rs. 2,708/- per month. If

Rs.2,708/- is deducted from Rs. 10,833/-, it will comes to

Rs.8,125/- P.M. Rs.8125 X 12 = i.e., Rs.97,500/- per annum.

30. In a case between Sarla Verma and others and

Delhi Transport Corporation and another reported in 2009 ACJ 1298 Hon’ble Apex Court in paragraph No. 9 of the Judgment mentioned about the method of calculation of compensation. As per the observation of the Hon’ble Apex Court in the said authority and the settled practice under first step the court shall ascertain the multiplicand by adverting to the occupation and income of the injured and then select the appropriate multiplier by referring to the age of the injured and by referring to paragraph No. 19 Column No. 4 of the authority. In the third step the tribunal shall make calculation of loss of income by applying the multiplier to the multiplicand ascertained. The age of the deceased is considered as 45 years. Therefore, operative multiplier of 14 is taken for consideration in this case. Hence,

Rs. 97,500 X 14 = 13,65,000/- and accordingly, the loss of dependency comes to Rs. 13,65,000/- In addition to the said amount, the petitioners are also entitled for funeral expenses and transporting charges of Rs.15,000/-; Rs.20,000/- towards loss of consortium and Rs.14,00,000/-

31. The petitioners have claimed Rs.15,00,000/- under all the applicable heads but this Tribunal inclined to allow the petition in part by awarding an amount of Rs.14,00,000/- 18 | P a g e F a i r (Rupees Fourteen lakhs only) under all applicable heads, to the petitioners. The petitioners have also filed another petition in

M.V.O.P 134 of 2013 claiming compensation for the death of their father in the same accident. By considering the facts and circumstances of the case, this tribunal is inclined to award an amount of Rs.14,00,000/- to the petitioners.

32. Therefore, as claimed by the petitioners, this court is inclined to award the consolidated amount of

Rs.14,00,000/- (Rupees fourteen lakhs only) to the Petitioners under all applicable heads, for the death of their mother

N.Visalakshi.

33. QUANTUM :- Considering the facts and circumstances of the case and evidence available on record, this

Tribunal is inclined award Rs. 14,00,000/- (Rupees fourteen lakhs only) towards consolidated amount of compensation for the death of N.Visalakshi.

34. In view of the above the total compensation that can be awarded to the petitioners is Rs. 14,00,000/- (Fourteen lakhs only). The Respondent Nos. 1 to 3 are jointly and severally liable to pay the compensation to the petitioners. However, the final liability is fixed on the Insurance Company i.e., the 2nd

Respondent being the insurer of the offending vehicle owned by the 2nd respondent to pay the awarded compensation amount to the Petitioners. Accordingly, the issue Nos.1 and 2 are answered.

19 | P a g e F a i r

35. Issue No.3 R e s u l t :

In the result, the petition is allowed in part with costs by granting the following reliefs:

(i) The petitioners 1 and 2 are entitled for

compensation of Rs. 14,00,000/- (Rupees Fourteen lakhs

only) with proportionate costs and interest at the rate of

7.5 % p.a. from the date of the petition till the date of

realization.

(ii) The Respondent No.2 is directed to deposit

the said amount with proportionate costs along with

interest at 7.5 % p.a., within two months from the date of

this order.

(iii) The petitioner No.1 being the son and the

Petitioner Nos. 2 being the daughter of the deceased

N.Sreedhar Gupta, the awarded compensation amount of

Rs. 14,00,000 (Rupees fourteen lakhs only) is

apportioned at 40 % and 60 % respectively amongst the

petitioners 1 and 2:

(iv) The petitioner No. 1 is awarded for

Rs.5,60,000/- (along with accrued interest thereon) and

the 1 st petitioner is entitled to withdraw an amount of

Rs.2,00,000/- (along with accrued interest thereon)

immediately after the deposit by the 2 nd respondent and

the remaining amount of Rs.3,60,000/- (along with

accrued interest thereon) shall be deposited in his name

20 | P a g e F a i r in any national Bank for a period of Three years.

(v) The petitioner No. 2 is awarded for

Rs.8,40,000/- (along with accrued interest thereon) and

the 2 nd petitioner is entitled to withdraw an amount of

Rs.4,00,000/- (along with accrued interest thereon)

immediately after the deposit by the 2 nd respondent and

the remaining amount of Rs.4,40,000/- (along with

accrued interest thereon) shall be deposited in her name

in any national Bank for a period of Three years.

(iv) The Advocate fee is fixed at Rs.1,500/-

(v) This award is subject to any compensation already awarded U/sec.140 of the M.V. Act;

(vi) The petitioners are not entitled for any

interest for the period where the petition was dismissed

for default and till it was restored, if any.

(vii) The balance of claim is dismissed.

Typed directly on computer to my dictation. Corrected, signed and pronounced by me in the open court, this the 24th day of

April, 2023.

Sd/- P Bhaskar Rao,

Chairman, Motor Accidents Claims Tribunal-cum- II Additional District Judge, Madanapalle.

Appendix of Evidence

Witnesses examined

For the petitioners For the Respondents

P.W.1 : N.Ranjith RW1: J.Vijaya Kumar P.W.2 : B.Vijaya Lakshmi P.W.3 : V.Ananda Krishna 21 | P a g e F a i r

P.W.4 : S.Malik Basha

Exhibits marked on behalf of the petitioners

Ex. A1 Certified copy of F.I.R in Crime No.64 of 2012 of Talapula P.S.

Ex. A2 Certified copy of Inquest Report over the dead body of N.Vishalakshi.

Ex.A3 Certified copy of M.V.Inspector’s Report

Ex.A4 Certified copy of Post Mortem Certificate of the deceased N.Vishalakshi.

Ex.A5 Certified copy of Charge Sheet in C.C. No.41 of 2012 on the file of J.M.F.C., Kadiri

Ex.A6 Original Aadhar Card

Ex.A7 Memo filed by the Income Tax Officer

Ex.A8 TDS certificate dated 25-04-2012

Ex.A9 Certified copy of sketch in Cr.No.61 of 2012`

Ex.A10 Certified copy of driving license of husband of the deceased

Ex.X1 Authorization letter

Ex.X2 Attested copy of driving license

Exhibits marked on behalf of the 2 nd respondent

Ex.B1 Certified copy of Insurance policy relating to offending vehicle

Sd/- P Bhaskar Rao,

Chairman, Motor Accidents Claims Tribunal-cum- II Additional District Judge, Madanapalle.