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IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,
CHITTOOR
PRESENT: Smt. P. Lakshmi Kumari, Addl., Senior Civil Judge, Chittoor.
Monday, the 31 st day of December, 2018
O.S.NO. 202 / 2011
Between:
D.Lakshmamma. .. Plaintiff.
And:
1.Smt. Valliamma (died)
2.D. Lokanadha Reddy.
3.D. Ekambara Reddy. ..Defendants.
This suit is coming on this day i.e., 28-12-2018 for final hearing before me in the presence of Sri C.K. Raghu, Advocate for
Plaintiff and of Sri R. Nagi Reddy, Advocate for the Defendant No.2, whereas the defendant No.3 remained exparte, while the defendant
No.1 died and upon hearing the arguments and perusing the material on record and having stood over for consideration, this court made the following:-
JUDGEMENT
1. This is a suit filed by the plaintiff against the defendants for declaring the right and title of the plaintiff over the plaint schedule properties, directing the defendants, their men, servants and agents not to interfere with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property by granting permanent injunction and for costs of the suit.
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2. Brief averments of the plaint are that the plaintiff is the mother of the 2nd and 3rd defendants and the daughter of 1st defendant in relation and that the plaintiff is the only daughter of
Late Chengal Reddy who died on 24.10.1994 leaving behind the first defendant and the plaintiff. Ever since the date of discretion plaintiff used to help Late Chengal Reddy in all family and agricultural activities and thus she has perfected her rights being in enjoyment and proper possession of the schedule properties. All the properties are the self-acquired properties of father of the plaintiff.
Late Chengal Reddy executed a Will dated 18-08-1985 keeping all the properties i.e., his self-acquired properties in the interest of the plaintiff.
Plaintiff submits further that the plaintiff was already deserted by her husband and she has been living with her father helping him in the agricultural activities. That 1st defendant was not worldly wise and she was elderly women. Hence, Late Chengal Reddy during his life time had executed the said Will dated 18-08-1985 which was his last Will executed in a sound and disposing state of mind. In the said Will it has been clearly recited that the plaintiff has to perform his last rites. After the death Chengal Reddy, the said will came into effect and as per the recitals in the Will the plaintiff has performed the last rites of her father. Thus, the Will executed in favour of the plaintiff by Chengal Reddy stated above has been acted upon and the plaintiff has been in exclusive possession and enjoyment of the plaint schedule mentioned 3 properties after the death of her father. That the plaintiff being in proper possession and enjoyment of the schedule properties perfected her rights by paying cist and obtained Pattadar pass book and the plaintiff has developed all the properties by hard labour and huge amounts are being spent and all the schedule properties are being cultivated by raising sugarcane and groundnut crops.
Plaintiff submits further that the defendant No.2 is living separately and conducting business since 15 to 20 years and presently running fair price shop at Reddepalle. That 1st defendant is aged about 83 years she is not of sound mind not well versed in social life and taking undue advantage of the helpless condition of first defendant, the 2nd defendant attempted to create some documents in his favour and interfere with the peaceful possession and enjoyment of the schedule properties. Hence, the plaintiff filed this suit for grant of permanent injunction against the defendants.
Plaintiff submits further that the 3rd defendant is made as a necessary party to the suit as he is also one of the family members and proper party and the 3rd defendant is also living separately and eking his livelihood. The 1st defendant has no colour of right nor enjoyment in the schedule properties at any time to create any interest in the properties in favour of the 2nd defendant.
Plaintiff submits further that she got issued a legal notice to the defendants not to create any record in respect of the plaint schedule mentioned properties and when plaintiff came to know that the 2nd defendant is making attempts to create some 4 documents in his favour by fraudulent means from the 1st defendant. Then a reply was given stating that the 1st defendant has executed a registered gift deed dated 17-06-1996 in respect of her half share in the plaint schedule properties and that the said gift deed is not executed by the 1st defendant in favour of the 2nd defendant by knowing its contents. The said document was prepared by the 2nd defendant to knock away the plaint schedule properties from out of the reach of the plaintiff and the said document was not intended to be acted upon and it was created only to create litigation and to harass the plaintiff from enjoying the plaint schedule properties and to interfere wither possession.
Plaintiff submits further that the 1st defendant is a thumb impressionist and she was under the influence of the 2nd defendant and she was not in a good mental condition to execute the gift deed in favour of the 2nd defendant and without knowing of its contents, the 2nd defendant has obtained the said gift settlement deed from the 1st defendant in his favour and the said document is a void document and the same is not binding on the plaintiff and that the 1st defendant has no right to execute the said gift deed dated 17.06.1996. The 2nd defendant contended that late Chengal Reddy had executed an unregistered Will in his favour and in favour of the 1st defendant eliminating the plaintiff to succeed his properties
dated 29-05-1983 is a rank forged document and the late Chengal
Reddy did not execute the alleged Will and that the said Will was 5 created by forging the thumb impression of late Chengal Reddy after filing of the suit. Hence, the suit.
3. The first defendant filed written statement by denying the material allegations mentioned in the plaint and submits further that the husband of the 1st defendant Chengal Reddy died on 24-10- 1994 and during his life time he executed a Will dated 29-05-1983 bequeathing his properties i.e., plaint schedule properties in favour of 1st defendant and 2nd defendant in a sound disposing state of mind and after his death 1st defendant and 2nd defendant have been in possession and enjoyment of the plaint schedule properties. The 1st defendant has special attachment and affection towards the 2nd defendant as she brought him up and therefore 1st defendant executed a registered gift settlement deed dated 17-06-1996 in favour of the 2nd defendant so far as her half share in the properties of Chengal Reddy i.e., the suit properties. Since then the 2nd defendant has been in possession and enjoyment of the suit property exclusively. During the life time of Chengal Reddy he was paying cist and the properties stood in his name in the village records and after his death 1st defendant was paying cist to the plaint schedule lands along with the 2nd defendant. Thus, now the 2nd defendant is the exclusive owner of the suit property and he has been in possession and enjoyment of the same.
The 1st defendant submits further 1st defendant is active and in fact looking after the agricultural operations of the family and coming to know, 1st defendant executed a registered gift settlement 6 deed in favour of the 2nd defendant, and that the plaintiff who is litigant and familiar with litigations in Court manufactured with ante-dated alleged Will forging the LTI of Chengal Reddy the husband of 1st defendant who was literate and used to sign as if
Chengal Reddy had executed the Will in favour of the plaintiff and submitted that Chengal Reddy did not execute any will in favour of the plaintiff and thus the plaintiff has no manner or right, title or interest nor possession of the suit property. That plaintiff is a turbulent lady and she used to quarrel with the wife of the 2nd defendant and consequently the second defendant set up a separate residence above two years ago and that the plaintiff is not in possession and enjoyment of the suit properties and the suit filed for permanent injunction is not maintainable. There is no cause of action for the plaintiff to file the suit and therefore prays to dismiss the suit with costs.
4. The second defendant filed written statement by denying the material allegations mentioned in the plaint and submits further that Chengal Reddy had ancestral property and he acquired some more properties from out of the income of the ancestral property and therefore the allegation that all the properties are solely acquired by the father of the plaintiff Chengal Reddy is not correct.
The 3rd defendant has no interest in the suit property and he is unnecessarily made as a party to the suit as he is colluding with the plaintiff to give evidence in her favour in the suit.
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The 2nd defendant submits further that Chengal Reddy the grandfather of 2nd defendant executed a Will dated 29-05-1985 in favour of the first defendant and 2nd defendant, bequeathing all his properties movable and immovable in his sound disposing state of mind and after death of Chengal Reddy, first and 2nd defendant have been in possession and enjoyment of the suit properties jointly having each half share therein, paying cist in the name of 1st defendant and the 2nd defendant has been brought up with love and affection by the first defendant and therefore 1st defendant executed a registered gift settlement deed dated 17-06-1996 in favour of 2nd defendant and put the plaint schedule property in exclusive possession and enjoyment of 2nd defendant and even since then 2nd defendant has been in possession and enjoyment of the plaint schedule properties.
The 2nddefendant submits further that taking into consideration the possession and enjoyment of the suit properties the Mandal Revenue Officer, GD Nellore after due enquiry issued ryot Pattadar pass book and also title deed books to 2nd defendant.
Thus, the 2nd defendant is absolute owner of plaint schedule property and he has been in possession and enjoyment of the same.
That the Chengal Reddy did not execute any will in favour of the plaintiff as alleged in the plaint and coming to know the registered settlement deed by the first defendant in favour of 2nd defendant, the plaintiff with the intention to deprive and defraud the 2nd defendant, had manufactured ante dated and forged Will dated 8 18.08.1985 as if Chengal Reddy had executed Will dated 18.8.1985 and that the Chengal Reddy is an educated man and he used to sign and he never used to put his left thumb impression in any document at any time and the alleged left thumb impression in the
Will of the plaintiff is not that of LTI of Chengal Reddy. That the plaintiff was never in possession and enjoyment of the suit properties and plaintiff never paid cist and her name was not entered in any revenue records. Thus, the plaintiff is not entitled to permanent injunction as she is not in possession and enjoyment of the suit property nor she is entitled to the said properties. That the plaintiff is well aware of the execution of the Will by Chengal Reddy in favour of 2nd defendant also the execution of the gift settlement deed by the 1st defendant in favour of 2nd defendant.
The 2nd defendant submits further that 2nd defendant and first defendant and third defendant and the plaintiff have been living together and in the month of April, 1994 due to differences that arose between the wife of 2nd defendant and the plaintiff to avoid unnecessary bickering in the family, second defendant set up separates residence and he being upright and public minded person he was entrusted with fair price shop for distribution of essential commodities for poor people in the village and as the 2nd defendant has been living separately since 1994, the plaintiff collected all the documents which were in the ancestral house and filed those documents along with the plaint claiming title and possession of the suit property though no single document is in the name of the 9 plaintiff. Merely because those documents have been filed that does not mean the plaintiff is the owner of the suit property and is in possession of the same.
The 2nd defendant submits further that the plaintiff issued a registered notice dated 01-07-1996 and posted the same on 15.07.1996 by registered post with acknowledgement due and the same was received by 2nd defendant on 17-07-1996 and 2nd defendant issued reply notice dated 21-07-1996 which was received by plaintiff’s counsel on23-07-1996 and that the plaintiff filed the suit on 17-07-1996 without even waiting for the reply from 2nd defendant, this shows the malafide intention of the plaintiff in rushing to this court seeking permanent injunction and also for out of order temporary injunction. There is no cause of action to file the suit and prays to dismiss the suit with costs.
5. The 2nd defendant also filed additional written statement on 06-08-2001 and submitted that knowing fully-well that late Chengal
Reddy had executed a Will dated 25-09-1983, the plaintiff did not question the validity of the same and after thorough knowing the weakness of the plaintiff’s case, the plaintiff filed rejoinder stating that the aforesaid will is a rank forgery and fabricated one and that the said Will was executed by Late Chengal Reddy in his sound disposing state of mind and that Will was the last Will and that so called Will in favour of plaintiff by late Chengal Reddy is manufactured one and the very fact the late Chengal Reddy said to have put his L.T.I in that Will though he used to sign being 10 educated tells that the said Will is a forged one and the same is intended to grab the properties of late Chengal Reddy by the plaintiff. That the 1st defendant executed a registered gift settlement deed dated 17-06-1996 in favour of 2nd defendant and the same is registered document and this fact has been mentioned in the written statements filed by 2nd defendant and 1st defendant. The 1st defendant did not engage counsel as alleged in the rejoinder is absolutely false and it further states that ignorance of the plaintiff and her counsel the proceedings in the above suit. Therefore prays to dismiss the suit with costs.
6. So also the 2nd defendant filed another additional written statement on 15-09-2011 and submitted that the honorable appellate court in the appeal in A.S.No.58 of 2004 gave opportunity to the plaintiff to correct the relief by paying necessary court fee, but the plaintiff amended the plaint by adding some allegations in para no.4 and paras 8 (a), 89(b) which is untenable. That the Will dated 18-08-1985 is a forged document created by the plaintiff to defeat the registered settlement deed dated 17-06-1996 executed by
Valliamma the deceased 1st defendant in favour of 2nd defendant.
Since the Will dated 18.08.1985 is a forged one and created subsequent to the settlement deed dated 17-06-1996 stated supra the question of acting upon the said will does not arise. It is also not true that the plaintiff has been in exclusive possession and enjoyment of the plaint schedule properties after the death of her father and after the death of Chengal Reddy, it is the 1st defendant 11 and 2nddefendant W/o. became the owners of the plaint schedule properties and who had been in possession and enjoyment of said properties. Subsequently the1st defendant Valliamma executed the registered gift deed dated 17-06-1996 gifting her undivided half share in the properties of her husband to 2nd defendant. Therefore, since 17-06-1996 2nd defendant has been in exclusive possession and enjoyment of the plaint schedule properties recognizing his title and possession the Government issued Pattadar pass book and title deed to the plaint schedule properties and also properties purchased in the name of 2nd defendant. That the1st defendant did not executed gift deed knowing its contents. In fact it was she who got the gift settlement deed prepared and executed the same. It is also not true that the document was not intended to be acted upon and created only to create litigation and harass the plaintiff from enjoying the plaint schedule property and that 1st defendant was not in a good mental condition to execute the gift deed in favour of 2nd defendant and that without the knowledge of its contents, 2nd defendant had obtained the said gift settlement deed from the 1st defendant and therefore the said document is a void document and the same is not binding on the plaintiff. It is untenable to allege that the1st defendant has no right to execute the said gift deed
dated 17-06-1996. That P.W.2 A. Sreeramulu Reddy who is the
son in-law of the plaintiff signed the Will dated 18-08-1995 as 3rd attestor after P.W.1 and D.W.1 were examined and cross examined, clandestinely in the court office. Therefore, the said Will is void in 12 law on that ground also and the said A. Sreeramulu Reddy and the plaintiff are liable to be prosecuted by this court for the crime committed by them.
7. The third defendant filed written statement by denying the material allegations mentioned in the plaint and submits further that at present the plaintiff is the elder member of the family looking after the schedule properties acting as a manager of the family and that the 3rd defendant has no knowledge regarding the suit Will executed by late Chengal Reddy in favour of 2nd defendant viz.,
Lokanatha Reddy and more-so, the 2nd defendant with the conveyance of Valliamma the 1st defendant has managed in preparing the documents executed by 1st defendant in his favour and the 3rd defendant emphatically denies any right for the properties claimed by the 2nd defendant and that the alleged properties are all joint family properties along with other properties.
The 3rd defendant is entitled for proper share being a co-sharer and that neither the plaintiff nor the other defendant can claim only their legitimate shares in the properties.
The third defendant submits that any records that may stand in the name of the plaintiff D1 and D2 will show the rights in the property. The plaintiff has paid all the kist etc., not in her personal capacity but being the manager of the family. Hence for all legal purposes, the settlement deed executed by D1 in favour of D2 has to be cancelled for proper adjudication. There is no sanctity in the eye of law for the documents which are filed by the 2nd defendant it is 13 only with a malafide intention of knocking away the properties and also in order to defeat the interest of D3. Therefore D3 prays to grant permanent injunction to the extent of the share of the property in favour of the plaintiff by dividing into proper and legitimate shares among the plaintiff and the defendants.
8. Basing on the above pleadings, the following issues were framed for trial by this court dated 22-01-1997.
Issues dated 22-01-1997.
1) Whether the Will dated 18-08-1985 in favour of the
plaintiff executed by late Chengal Reddi is genuine and binding
on the defendants?
2) Whether the plaintiff is in possession and enjoyment of the suit properties?
3) Whether the plaintiff is entitled to permanent injunction as prayed for?
4) To what relief?
9. ADDITIONAL ISSUES DATED 8-8-2001:-
10. ADDITIONAL ISSUES DATED 14-10-2011
1) Whether the 1 st defendant executed a registered Gift
deed dated 17-06-1996 bequeathing her undivided half share in
the properties of her husband to 2 nd defendant?
2) Whether since 17-06-1996, 2 nd defendant has been in
exclusive possession and enjoyment of plaintiff schedule
properties?
11.Additional Issue framed on 15-11-2018:- 14
1. Whether the plaintiff has got right, title over the suit schedule properties as prayed for ?
12. On behalf of the plaintiff, P.Ws 1 to 5 are examined and
Exs.A1 to 28 are marked and on behalf of the defendants D.Ws 1 to 5 are examined and marked Exs.B1 to B11 and also Exs.X1 to X4.
Issues dated 22-01-1997
2) Whether the plaintiff is in possession and enjoyment of the suit properties?
3) Whether the plaintiff is entitled to permanent injunction as prayed for ?
Additional Issue framed on 15-11-2018:-
1. Whether the plaintiff has got right, title over the suit schedule properties as prayed for ?
Since these issues are interconnected this court intends to answer them together
13. It is the specific case of the plaintiff that Late Chengal
Reddy is the absolute owner of the suit schedule property and it is the self-acquired property of Late Chengal Reddy and plaintiff is the only daughter of Late Chengal Reddy who died on 24-10-1994 leaving behind first defendant and plaintiff and that Late Chengal
Reddy had executed Will deed dated 18-08-1985 under EXA.1 keeping all the properties i.e., his self acquired properties in the interest of plaintiff and ever-since the date of discretion, plaintiff used to help late Chengal Reddy in all family and agricultural activities and perfected her rights in enjoyment and proper 15 possession of suit schedule properties perfected by paying cists and obtained pattadar pass book and developed all the properties by her hard labour and suit schedule property are being cultivated by raising sugarcane and groundnut crops and that 2nd defendant who is natural son of plaintiff is living separately and conducting business since 15 to years and presently running fair price shop at
Reddepalle and taking undue advantage of helpless condition of first defendant who is aged about 83 years, the 2nd defendant had attempted to create some documents in his favour and got created unregistered Will dated 29-05-1983 under EXB.2 alleged to have been executed by late Chengal Reddy in favour of 2nd defendant by forging the thumb impression of late Chengal Reddy after filing of this suit.
14. It is the specific case of the 1st defendant that the plaintiff is not in possession and enjoyment of suit schedule property and that defendants are in possession and enjoyment of suit schedule property and that first defendant had executed gift deed dated 17-06-1996 under EXB.1 in favour of 2nd defendant towards her half right share in the suit schedule property belonging to Chengal Reddy and that 2nd defendant since then has been in possession and enjoyment over the suit schedule property by paying cists and the name of 2nd defendant also entered in the revenue records and that husband of first defendant by name Chengal
Reddy died on 24-10-1994 and during his life time he executed a
Will dated 29-05-1983 under EXB.2 bequeathing all his properties 16 i.e., plaint schedule properties in favour of 1st and 2nd defendant in a sound and disposing state of mind and after his death first and 2nd defendant have been in possession and enjoyment of plaint schedule property and that first defendant due to love and affection brought up 2nd defendant and executed registered gift settlement deed dated 17-06-1996 under EXB.1 towards her half share in the properties of Chengal Reddy and 2nd defendant continued his possession and enjoyment over the suit schedule properties since then and that the plaintiff has no right and title over the suit schedule property.
15. It is the specific case of the 2nd defendant that Chengal
Reddy has got ancestral properties and out of the income of ancestral property Chengal Reddy got the suit schedule property and that Chengal Reddy is the maternal grandfather of 2nd defendant had executed Will dated 29-05-1985 under EXB.2 in favour of first defendant and 2nd defendant bequeathing all his properties movable and immovable in a sound disposing state of mind and after the death of Chengal Reddy, 1st defendant and 2nd defendant have been in possession and enjoyment jointly each having half share in suit schedule property and that first defendant paid cist in respect of suit schedule property and that first defendant brought up 2nd defendant and due to love and affection upon 2nd defendant, first defendant had executed gift settlement deed dated 17-06-1996 under EXB.1 and ever since the 2nd defendant had continued his possession and enjoyment over the 17 suit schedule property and Mandal Revenue Officer after due enquiry got issued Ryot Pattadar pass book and title deed in favour of 2nd defendant and that plaintiff was never in possession and enjoyment in suit schedule property and that the legal notice dated 01-07-1996 issued by plaintiff and posted the same on 15.07.1996 by registered post with acknowledgement due was received by 2nd defendant on 17-07-1996 and that 2nd defendant also issued reply
dated 21.07.1996 which was received by the counsel for the plaintiff
on 23-07-1996 and that plaintiff filed the suit on 17-07-1996 without even waiting for the reply from the 2nd defendant showing malafide on the part of the plaintiff in rushing the court to obtain permanent injunction in respect of suit schedule property.
16. The 2nd defendant in his additional written statement submitted that plaintiff did not question the validity of the Will
dated 25-09-1983 under EXB.2 executed by Chengal Reddy in
favour of 2nd defendant and as an afterthought knowing the weakness of plaintiff case, the plaintiff filed rejoinder stating that the Will dated 25-09-1983 under EXB.2 is rank forgery and fabricated document and 2nd defendant submitted that the said Will is actually executed in a sound and disposing state of mind by
Chengal Reddy and that the Will under Ex.A1 is manufactured Will by the plaintiff having executed by Chengal Reddy and that Chengal
Reddy used to put his Left Thumb impression in that way though he used to sign being educated tells the fact that the said Will is forged one and the same is intended to grab the properties of late Chengal 18
Reddy by plaintiff and that the contention mentioned in the rejoinder by the plaintiffs all false.
17. The 2nd filed further filed additional written statement on 15.09.2011 pleading that para 4 of the plaint 8 (a) and 8 (b) is untenable and submitted that P.W.2, A. Sriramulu Reddy who is son in law of plaintiff had signed the Will dated 18-08-1985 as clandestinely 3rd attestor after P.W.1 and D.W.1 were examined and cross examined clandestinely in the court office and said A
Sriramulu Reddy and plaintiff are liable for prosecuted and that late
Chengal Reddy did not execute any will under Ex.A1 and it is a rank forged document created by forging the thumb impression of late Chengal Reddy.
18. It is the specific case of the 3rd defendant that the entire suit schedule properties of the Chengal Reddy and the joint family properties of plaintiff and defendants and that 3rd defendant has no knowledge regarding the Will executed by late Chengal Reddy in favour of 2nd defendant under Ex.B1 and that the 2nd defendant with the collusion of first defendant managed in preparing the documents executed by 1st defendant in his favour and any records that may stand in the name of plaintiff and defendants 1 and 2 will show the rights in the property and plaintiff paid all the cist in respect of suit schedule property as a manager of the joint family and that settlement deed executed by 1st defendant in favour of 2nd defendant has to be cancelled for proper adjudication and that the documents filed by the 2nd defendant is created with malafide 19 intention of knocking away the suit schedule property and to defeat the rights of the 3rd defendant.
19. Learned counsel for the plaintiff argued that originally the suit was filed by the plaintiff for bare injunction and subsequent as per the orders of the Hon’ble District Court, Chittoor the plaintiff sought for the relief of declaration and title over the plaint schedule property and that the suit is originally filed on the file of learned I
additional District Munsif Court, Chittoor vide O.S.No.512/1996
and after full pledged trial the learned I Additional District Munsif decreed the suit and thereafter the defendants preferred an appeal and the matter was remitted to the lower court for seeking
additional claim of relief of declaration of title and accordingly the
relief was amended by the plaintiff for declaration of right, title of plaintiff and that in view of pecuniary jurisdiction raised before the court, the said suit was transferred to this Court for proper adjudication between both side parties.
Learned counsel for the plaintiff relied upon authority Kasa
Muthanna and another -vs- Sunke Rajanna and others, wherein it is held that entries in revenue records relied with regard to possession or of no avail when they have no right, title and interest in the suit property.
20. Learned counsel for 2nd defendant argued that a party who is seeking declaration of title burden lies on such person to adduce satisfactory evidence to prove his title and possession and he has to succeed only on the strength of his case and not on the weakness of 20 the case set up by the defendant and that in the given case the suit filed by the plaintiff is for permanent injunction and subsequently after remanding the plaint in O.S.No512/1996, the relief of declaration of title is added by the plaintiff and since the value of the suit enhanced, the suit was transferred to this court and numbered as OS 202/2011.
Plaintiff is claiming the right title, and interest over suit schedule property by virtue of EXA.1 will deed having executed by the late Chengal Reddy in favour of plaintiff his only child and daughter during his life time in presence of attestors and scribe of
EXA.1 and that the late Chengal Reddy always wished and desired that the last rites of late Chengal Reddy has to be performed by the plaintiff as the only legal representatives of late Chengal Reddy.
21. This court placed it reliance upon authority reported in
2011 (5) ALD 38 SC (SUPREME COURT) CA 562 OF 2003
between Rangammal Vs. Kuppuswami and another . Wherein it is held that the burden of proof is upon the person who desires any court to give judgment as to give any legal right or law dependent on the existence of facts which he asserts must prove that those facts exist and when a person is bound to prove existence of any fact it is said that burden of proof lies on that person and therefore having applying this authority, this court is of opinion that the plaintiff approached this court for seeking declaration of his right title over suit schedule property and for recovery of possession of suit schedule property from the defendant and therefore the burden is 21 upon the plaintiff that he is absolute owner of suit schedule property having right title and entitled for recovery of possession.
Learned counsel for the plaintiff argued that first defendant without having any right over the suit schedule property had executed registered gift deed dated 17-06-1996 in respect of her half share in plaint schedule property and the gift deed executed by 1st defendant in favour of 2nd defendant is created by 2nd defendant to knock away the suit schedule property and the said document is never acted upon and basing on created documents, the defendants are attempting to interfere in the possession and enjoyment of the plaintiff and that first defendant or 2nd defendant has no right, title or possession over the suit schedule properties and that they are attempting to interfere in the possession and enjoyment of the plaintiff in suit schedule property.
22. The evidence of plaintiff as PW.1 that she is the only daughter of Chengal Reddy and the suit schedule property originally belongs to her father Chengal Reddy and P.W.1 used to look after late Chengal Reddy prior to his death and till his death and during his life time P.W.1 used to cultivate all the agricultural lands including the suit schedule land and father of P.W.1 during his life time had executed un-registered Will under Ex.A1 and on the date of execution, Chengal Reddy was having good health and same was executed in the absence of P.W.1. P.W.1 deposed that
Ex.A1 was attessted by one muni Reddy and one Gangadharam
Reddy and PW.2 and by virtue of will P.W.1 was continued her 22 possession and enjoyment over the suit schedule property and after the death of Chengal Reddy, P.W.1 is paying the cist in respect of suit schedule property and the defendants have no right and title over the suit schedule property. The evidence of P.w.1 that her father Chengal Reddy delivered his title deeds of all his properties and some are still with the P.W.1 and some other documents are filed by the plaintiff in this case and Ex.A2 to A5 are the original title deeds of said properties which P.W.1 received from her father
Chengal Reddy was also corroborated by the PW.3 who is farm servant of late Chengal Reddy and plaintiff.
P.W.2 categorically deposed that one Chinabba and Kandaiah are the farm servants to Chengal Reddy and after demise of
Chengal Reddy they are the farm servants to P.W.1 and raising crops in suit schedule property on behalf of plaintiff and raising crops in respect of suit schedule property .
23. D2 did not deny and dispute by way of suggestion to
PW.2 that one Chinabba and Kandaiah are not the farm servants to Chengal Reddy and after demise of Chengal Reddy they are the farm servants to P.W.1 and raising crops in suit schedule property on behalf of plaintiff and raising crops in respect of suit schedule property .
24. P.W.3 is the farm servant of late Chengal Reddy and independent witness deposed before this court he worked under
Chengal Reddy for the purpose of raising crops and was cultivating the plaint schedule property and after the death of Chengal Reddy 23 the plaintiff is the only daughter cultivating the land and that P.W.3 is the farm servant to plaintiff and attending all the agricultural work on behalf of plaintiff in suit schedule property is disclosing that plaintiff is in possession and enjoyment over suit schedule property.
25. The evidence of plaintiff that she has filed appeal before the Revenue Divisional Officer, Chittoor against the order of Mandal revenue Order for issuance of Pattadar pass book and title deed under Ex.B2 and B3 in favour of 2nd defendant and RDO suspended the Pattadar pass book and title deed of 2nd defendant as per the proceedings under Ex.A12 and that Ex.A13 is the notice copy which was received by plaintiff from the RDO office was further corroborated by the PW.4 and same is not disputed and denied by the defendants by way of giving suggestion either to PW.1 and PW.4.
26. P.W.4 is the senior Assistant in the office of MRO,
Gangadhara Nellore brought ROR and 1-B Register and record relating to the Pattadar pass book and title deed issued in favour of
D,.W.2 and attested Photostat copy of ROR and 1-B Register of account No.113 and pass book No.5720 is being produced before this court along with original register and on comparison of the said attested copy with the original, the attested copy which was attested by MRO of GD Nellore on ROR and 1-B Register of account No.113 pass book No.5720 is marked as Ex.X1.
27. P.W.4 corroborated the version of the plaintiff that basing on appeal filed by the plaintiff against the order of the MRO in 24 issuance of Pattadar pass book and title deed in favour of 2nd defendant and basing on the complaint given by the plaintiff to the
RDO, the order passed by MRO in respect of issuance of Pattadar pass book and title deed was suspended vide proceedings
ROC.G/646/2002 until further orders and basing on the appeal made by the plaintiff, the RDO also directed the MRO to conduct enquiry in respect of the said issue and after inquiry made by MRO and recording the statements of plaintiff and 2nd defendant which are written by P.W.4 as per the instructions of the MRO as mentioned under Ex.X2 and X-3.
28. P.W4 deposed that basing on the statements given by plaintiff and 2nd defendant the MRO prepared a report and submitted it before the RDO under Ex.X-4. P.W.4 deposed that the
RDO passed by RDO are still in force.
29. The evidence of PW.4 was not disputed and denied by way of suggestion to the PW.4 by the learned counsel for the defendants and on the other hand learned counsel for defendants reported no cross examination to P.W.4. The evidence of PW.4 disclosed that by virtue of EXA.12 the patta pass book and title deed under EXB.3 and EXB.4 of 2nd defendant is suspended as per the proceedings under EXA.12 and 2nd defendant is not in possession and enjoyment over suit schedule property.
30. P.W.5 is the independent witness deposed that he is residing in the house of one Madhavan as a tenant Thungundram
Village and that his village and Reddepalle village are neighboring 25 villagers and he has personally got knowledge about the facts of the suit that plaintiff is absolute owner of plaint schedule property and that plaintiff has been in continuous possession and enjoyment of the suit schedule property and raising various crops and the source of livelihood of the plaintiff is the suit schedule property and that father of the plaintiff by name Chengal Reddy is the original owner of suit schedule property had executed Ex.A1 in favour of P.W.1 in a sound disposing state of mind and the said Will is the last Will of
Chengal Reddy in favour of plaintiff and that plaintiff by virtue of
Ex.A1 got exclusive right and title and possession over the suit schedule property and that the husband of the plaintiff is a vagabond and he necked out the plaintiff from matrimonial house and contacted second marriage as such the plaintiff is residing with her parents along with 2nd and 3rd defendants who were minors by then and plaintiff used to help her father Chengal Reddy in agricultural operations and that first defendant is not worldly wise and elderly woman and hence the father of plaintiff by name
Chengal Reddy during his life time had executed a Will deed dated 18-08-1985 and that plaintiff performed the last rites of her father and mother and brought up 2nd and 3rd defendants and performed their marriage and also purchased several properties in the name of 2nd and 3rd defendant and provided sophisticated life to them and that 2nd and 3rd defendants have no courtesy towards mother /plaintiff and 2nd defendant and 3rd defendant are doing their 26 business and not cultivating lands and that 2nd defendant turned hostile and developed grudge against the plaintiff.
31. The above said evidence of PW.5 was not disputed and denied by way of giving suggestion to PW.5 that plaintiff never raise various crops in the suit schedule property and that on the date of year of evidence of PW.5 , also the plaintiff had raised groundnut crops and other allied not raised any crops in the suit schedule properties and late Chengal Reddy never executed EXA.1 in favour of plaintiff .
32. P.W.5 though admitted that D2 used to maintain agricultural work along with Chengal Reddy, however P.W.5 volunteered that all the family members including the plaintiff attending agricultural work during the life time of Chengal Reddy and said volunteered answers of Pw.5 was not disputed and denied by the learned counsel for D2 that plaintiff never assisted late
Chengal Reddy during life time of in agricultural operation of suit schedule property late Chengal Reddy. P.W.5 categorically denied that Ex.B2 Will is executed by Chengal Reddy in favour of D1 and
D2 and deposed that Ex.A1 is only executed in favour of plaintiff by name Chengal Reddy and it is the last Will.
33. The documents under Ex.A19, A20, A21, A22 A23, A24,
A25, A26 and A27 discloses that P.W.1 is the resident of suit village and is in possession and enjoyment of suit schedule properties and same is also not disputed and denied by the defendants mor particularly by D2 and on the other hands DW.2 who is 2nd 27 defendant had categorically admitted during his course of cross examination admitted that he has no objection for any of the documents filed and exhibited by the plaintiff except the EXA.1 proves that that Ex.A26 cist receipt four in number pertaining to suit schedule property from the year 1992 to 1997 and P.W.1 is paying the electricity consumption charges for the agricultural service connection situated in suit land. PW.1 deposed that all the village people knew that father of P.W.1 had executed Ex.A1 in favour of plaintiff.
34. The evidence of P.W.1 that she owned lands being received from her father and pattadar pass book also has been issued in favour of P.W.1 for the said lands and that she is residing in her parents’ house and cultivating the suit schedule lands by raising sugarcane, horse gram, red gram and groundnut crops and mother of P.W.1 is also not disputed and denied by the defendants more particularly by D2 by way of giving suggestion to PW.1.
The evidence of PW.2 to PW.5 and DW.1 to DW.2 proved that plaintiff is the only legal heir of Chengal Reddy and plaintiff used to assist Chengal Reddy in agricultural operations of suit schedule property during the life time of late Chengal Reddy.
35. 2nd defendant himself examined as D.W.2 and reiterated the contents of the written statement filed by him and the additional written statements filed by him. D.W.2 admitted that plaintiff is residing in item No.18 of suit schedule property and he has knowledge about the documents of the land owned and possessed 28 by the plaintiff and he has no objection for any of the documents filed by plaintiff in this suit except Ex.A1.
36. The categorically admission of DW2 that his maternal grandfather Chengal Reddy had executed only one Will deed and expressed ignorance that Ex.A1 is the only the last Will executed by
Chengal Reddy and admitted further that he and any other person have not made any claim regarding the existence of any other Will executed by Chengal Reddy apart from Ex.A1 and subsequent to
Ex.A1 and plaintiff is making her claim based on Ex.A1 as sole beneficiary in respect of suit schedule properties is proving the fact the late Chengal Reddy had executed only one will under EXA.1 which is the last testament of deceased Chengal Reddy over which plaintiff is the sole beneficiary under EXA.1
37. The expression of ignorance by the DW2 he has no knowledge about the documents filed by the plaintiff or D1 standing in the name of Chengal Reddy in this suit at the time of filing suit is also proving the fact that the documents under EXA.1 to EXA.28 is not personally verified by the 2nd defendant either at the time of receipt of summons by the D2 or subsequent to filing of suit and more particularly the alleged signing of PW.2 under EXA.1 clandestinely either subsequent to evidence of PW.1 or at the time of evidence of PW.2 as DW.2 categorically admitted before the court that he has no knowledge regarding the contents of his written statement or additional written statement as it was prepared by counsel of DW.2 and not as per the instructions of DW.2.
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38. DW2 admitted that there is mention of suit schedule property under Ex.A1 and all the attestors of Ex.A1 are residents of suit village and DW2 has no differences with Muni Reddy and
Gangadhara Reddy and he has enquired with the attestors and scribe under Ex.A1 in his village about the existence of Ex.A1 and about the contents of Ex.A1 and the reasons, circumstances under which Ex.A1 is executed by the Testator Chengal Reddy.
39. DW2 deposed that plaintiff is residing at her house and she has no separate house and the plaintiff after deserted by her husband had returned from her in laws house used to reside in her father’s house in item No.18 of suit schedule property and the original document pertaining to landed properties of Chengal Reddy.
40. D.W.2 admitted that after demise of his father in the year 1972 or 1973 , the plaintiff lived in the house of Chengal Reddy for a period of 5 or 6 years . D.W.2 admitted further that in the voter list of the year 1999, D.W.2, his wife Saraswathi are also shown to the residents of the house D.No.7-50 and he is also called by name
Koteswara Reddy under Ex.A7.
41. D.W.2 admitted further that plaintiff, defendant no.3 and first defendant and others are shown as residents of house D.No.7- 51 under Ex.A7 (a) and expressed ignorance about the entries in
Ex.A7. D.W.2 admitted that as per the entries in Ex.A8 the plaintiff, first defendant and the Chengal Reddy are the residents of one and the same house and in the voter list for the year 1983 Chengal
Reddy, first defendant the plaintiff the 3rddefendant, 30
Saraswathathamma are shown to be residents of house D.No.7-45 under Ex.A9 and Ex.A9(a).
42. D.W.2 admitted that plaintiff filed OS 221/1967 on the file of District Munsif Court Chittoor as guardian against his father praying for partition and separate possession of family properties and the same was decreed and the plaintiff took possession of share of land from the father of D.W.2 on behalf of D.W.2 in the year 1974 under Ex.A10.
D.W.2 admitted further that certain properties situated at
Redepalle village were purchased in the name of defendant No.3 and
D.W.2 through sale deed dated 7-7-1980 and lands under Ex.B3 purchased in his name and in the name of 3rd defendant under the sale deed dated 7-7-1980.
43. DW2 admitted further that in Ex.B3 it is mentioned that the properties were acquired by the pass book holder by way of inheritance and admitted further that the lands shown under Ex.B3 did not belongs to his father and it is purchased by him and D3 jointly. And admitted further D.3 has not got issued any Pattadar pass book in respect of his lands.
44. DW2 admitted that Ex.B1 was scribed on the instructions given by him to the scribe and he asked the scribe to scribe the contents of gift settlement deed and after scribing Ex.B1 he did not go through Ex.B1 before the registration and also did not get Ex.B1 read over to himself prior to its registration. DW2 expressed ignorance about the execution of Ex.B2 on the date of its execution 31 but DW2 deposed that he subsequently came to know about it.
DW2 admitted that Ex.B6 and B7 were filed after filing of the suit and Ex.B5 relates to half of the properties mentioned in Ex.B5 and another registered sale deed in favour of himself and 3rd defendant jointly.
45. DW2 admitted that plaintiff is an agriculturist and having lands in Reddepalle village and surviving out of the income deriving from the agricultural land situated in Reddepalle village. DW2 admitted that his mother/plaintiff used to look after the domestic work at her parent’s house and plaintiff has filed suit filed for partition in the year 1967 showing D.w.2 and D.3 as minor against father of P.W.2 and said suit was filed for the welfare of D2 and D3 by the mother plaintiff when father of DW2 performed 2nd marriage.
46. DW2 admitted that he has knowledge about the documents of the land owned and possessed by the plaintiff and he has no objection for any of the documents filed by plaintiff in this suit except Ex.A1. DW2 admitted further that his maternal grandfather
Chengal Reddy had executed only one Will deed and expressed ignorance that Ex.A1 is the only the last Will executed by Chengal
Reddy and admitted further that he and any other person have not made any claim regarding the existence of any other Will executed by Chengal Reddy apart from Ex.A1 and subsequent to Ex.A1 and plaintiff is making her claim based on Ex.A1 as sole beneficiary in respect of suit schedule properties.
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47. DW5 who is advocate clerk deposed that the writings under
Ex.B9 is of advocate Ramaiah Pillai.
48. Defendants failed to destroy the evidence of plaintiff regarding the execution of Ex.A1 and the documents under EX.B9 and B-10 that it is fabricated documents.
49. DW2 expressed ignorance that plaintiff or D1 filed documents standing in the name of Chengal Reddy in this suit at the time of filing suit. DW2 admitted that there is mention of suit schedule property under Ex.A1 and all the attestors of Ex.A1 are residents of suit village and DW2 has no differences with Muni
Reddy and Gangadhara Reddy and he has enquired with the attestors and scribe under Ex.A1 in his village about the existence of Ex.A1 and about the contents of Ex.A1 and the reasons, circumstances under which Ex.A1 is executed by the Testator
Chengal Reddy.
50. DW2 deposed that plaintiff is residing at her house and she has no separate house and the plaintiff after deserted by her husband had returned from her in laws house used to reside in her father’s house in item No.18 of suit schedule property and the original document pertaining to landed properties of Chengal Reddy is in custody of DW2 and same is not filed before this court.
51. DW5 deposed that he is advocate’s clerk worked in office of
Pattabhi Ramaswamy Reddy from the year 1968 to 1999 and he has Acquitance with the writings of said advocate and identified the same under Ex.B9 and admitted that there are possibilities for any 33 other purpose to imitate the handwriting said advocate Ramaiah
Pillai.
52. The evidence of D.W.2 discloses that the plaintiff is residing in suit schedule property in item No.18 of the suit schedule property and that the plaintiff is used to cultivate the suit schedule property and used to do domestic work and assist Chengal Reddy in agricultural operation in suit schedule properties and after the plaintiff deserted by her husband was residing in her parents house.
53. DW2 categorically admitted that he has no objections for the documents filed by the plaintiff under A2 to A28 except Ex.A1.
DW2 admitted that he has got knowledge about the execution of
Ex.A1 and he know the contents of Ex.A1 prior to filing of the suit and he also issued reply notice for the legal notice under Ex.B11 and the fact of the execution of Ex.A1 came to the knowledge of
D.W.2.
54. P.w3 who is farm servant categorically deposed that he had worked under Chengal Reddy and has raised various crops in the suit schedule property and that after demise of Chengal Reddy,
PW.3 continued as the farm, servants of P.W.1 and plaintiff is cultivating the suit schedule propriety and that Chengal Reddy executed Ex.A1 only in favour of plaintiff.
55. P.W.4 categorically deposed that the proceedings under
Ex.A12 suspended the operation of Ex.B3 and B4 Pattadar pass book and title deed issued in favour of the 2nd defendant.
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56. The admission made by DW2 that by the date of execution of Ex.B1, he was having Pattadar pass book under ExB3 and B4 and the existence of Ex.B2 Will deed is not mentioned under EX.B1 gift deed and there is no existence of any schedule property under
Ex.B2 discloses that the suit schedule property is not executed in favour of plaintiff under Ex.B1 and B2.
57. P.W.2, 3 and 5 categorically deposed before this court
Chengal Reddy executed Ex.A1 in favour of plaintiff and that plaintiff was in possession and enjoyment of suit schedule property during the life time of Chengal Reddy and was assisting Chengal
Reddy in agricultural operations and that the husband of plaintiff deserted her and since then plaintiff was residing with her parent’s house.
58. The said evidence of P.Ws 2, 3 and 5 was not destroyed and denied by the defendants more particularly that the plaintiff was not residing with Chengal Reddy after deserted by the husband of plaintiff and that there was no occasion for plaintiff to go to agricultural fields and to assist Chengal Reddy in agricultural operations. Therefore with the above discussion it is held that the plaintiff is in possession and enjoyment over the suit schedule property and that the plaintiff has got right and title over the suit schedule property by virtue of A.1 to Ex.A28.Therefore with the above said discussion this court is of opinion that plaintiff is in possession and enjoyment over suit schedule property as on the date of filing of suit and has got right title over suit schedule 35 property. Accordingly the plaintiff is entitle for the relief of permanent injunction against the defendants. Issues answered
accordingly in favour of plaintiff and against the defendants.
59. Issues No.1 Dated 22.01.1997:-
1) Whether the Will dated 18-08-1985 in favour of the
plaintiff executed by late Chengal Reddi is genuine and binding
on the defendants?
Learned counsel for the Plaintiff argued that the suit schedule property is the property belongs to Chengal Reddy which is self- acquired property and the plaintiff is the only daughter to Chengal
Reddy and that Chengal Reddy executed Will under Ex.A1 in favour of plaintiff and by virtue of the Will plaintiff got right, title and possession over the suit schedule property and the said Will under
Ex.A1 is the last Will executed by Chengal Reddy and that 1st defendant is not worldly wise woman and taking undue advantage of her old age and innocence, 2nd defendant got created Ex.B1 and
B2 to grab the suit schedule property and that first defendant has no right to execute gift settlement deed in favour of the 2nd defendant under Ex.B1 and that Pattadar pass book under Exs.B3 and B4 are obtained by the 2nd defendant even much prior to execution of the Will deed under Ex.B2 which shows the fabrication of Exs.B3 and B4 by 2nd defendant by influencing the revenue authorities as 2nd defendant is working as fair price shop dealer 36 having control and custody under Mandal Revenue Officer created the revenue records in respect of suit schedule property with ante date and that the cist receipts under Exs.B5 to B7 are all created documents and that Ex.B9,B10 is filed before this court by the defendants only to destroy the execution of Ex.A1 by placing paper near the 3rd attesting witness place and obtaining the extract in photo-stat to show that the Will under Ex.A1 is not genuine and that the documents under Ex.B11 which is office copy of legal notice issued by the plaintiff and the said document supports the case of the plaintiff and that Ex.B11 is the Xerox copy and is in-admissible in evidence and in support of his contention relied upon authority reported in Koyyada Andalu -vs- Lingala Sathyanarayana, 2014 (5) ALT 714, wherein it is held that entries in revenue records under Section 8 (2) of A.P. Rights in Land and Pattadar pass book
Act 1971, it is the decision of the civil court, would prevail over the decision of revenue officials under the said Act on the entries made any record of rights.
60. Learned counsel for the defendants counsel argued that
Ex.A1 is a fabricated and forged document brought into existence to grab the properties of Chengal Reddy and that Chengal Reddy never executed Ex.a1 in favour of the plaintiff.
61. Learned counsel for the 2nd defendant argued further that plaintiff is not in possession and enjoyment of the suit schedule property and the will deed under Ex.A1 is forged and created document and that the attestor by name Muni Reddy and Ganga 37
Reddy under Ex.A1 are only appeared on Ex.A1 and the same was corroborated by P.W.1 in her evidence at 3rd line from the bottom of the cross examination of P.W.1 and accordingly the evidence of
P.W.1 was closed on 21-11-2001 and thereafter she filed chief examination on 9-8-2002 by which time P.W.2 Sriramulu Reddy clandestinely signed as 3rd attestor under Ex.A1 with the help of
Court staff and a look at Ex.A1 would show that Sriramulu Reddy signed as third witness after the scribe endorsed in the Will that he scribed the will and in support of his contention, he relied upon authority reported in Ipparapalli Bhoodevamma -v Ipparapalli
Subbarayudu, 1996 (2) A.W.R page 191 at 194 wherein it is held that the propounder is under duty to examine all available witnesses when the truth and genuineness of the Will which he propounded was contested.
62. Learned counsel for the 2nd defendant further relied the authority Vintha Venkateswara Reddy -vs Anjamma AIR 1996 AP
page 354 at para 7 at page 356 para 39 and 40 at page 360
wherein it is laid down that it is general principle the onus lies on the propounder of the Will to prove that the Will propounded by the last Will of a capable testator and that all suspicions if any the execution of it had to be removed. The story of the execution of the
Will was redialled with series infirmities. Although the Will was not a document compulsory registerable for its validity there was no convince registered why he did not get into registered when he wanted it to be registered.
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63. The evidence of PW.1 discloses that she is the only child of late Changal Reddy and the suit schedule property originally belongs to her father Chengal Reddy and P.W.1 used to look after him prior to his death and till his death and during his life time
P.W.1 used to cultivate all the agricultural lands including the suit schedule land and father of P.W.1 during his life time had executed un-registered Will under Ex.A1 and on the date of execution,
Chengal Reddy was having good health and same was executed in the absence of P.W.1.
64. P.W.1 deposed that Ex.A1 was attested by one Muni Reddy and one Gangadharam Reddy and PW.2 and by virtue of will P.W.1 was continued her possession and enjoyment over the suit schedule property and after the death of Chengal Reddy, P.W.1 is paying the cist in respect of suit schedule property.
65. P.W.1 denied that her father Chengal Reddy had executed
Ex.B2 Will deed dated 29-05-1983 and the same is very much within the knowledge of plaintiff and thereafter first defendant had executed registered gift settlement deed in favour of 2nd defendant under Ex.B1 in respect of her half of the share in suit schedule property.
66. P.W.2 is the independent witness categorically deposed
before this court that he has got properties adjacent to the suit
schedule properties and his house is situated adjacent to the house of plaintiff and defendants and that late Chengal Reddy was the original owner of suit schedule property who executed Ex.A1 in 39 favour of plaintiff and since the date of execution of Ex.A1 plaintiff is in possession and enjoyment of the suit schedule property and that P.W.2 is the attestor of EXA.1.
67. PW.2 deposed that the contents of the Will was dictated by
Late Chengal Reddy to the scribe and in his presence Late Chengal
Reddy put his thumb impression and signature and later attestors including P.W.2 and the scribe of the Will had signed in the Will and that the defendants were never in possession and enjoyment of the suit schedule property and that late Chengal Reddy did not execute any Will in favour of D1 and D2 under Ex.B2 and late Chengal
Reddy used to tell all his thoughts to P.W.2.
68. The evidence of PW.2 was not disputed and denied by the defendants that PW.2 was not present at the time of execution of
EXA.1 and in the presence of other attestors and scribe EXA.1 and that EXA.1 was not executed by late Chengal Reddy in favour of plaintiff in presence of attestors and scribe.
69. P.W.2 denied that he put his signature under Ex.A1 after filing into the Court by tampering the document into the Court clandestinely. No document produced before this court by the defendants that EXA.1 was tampered by the PW.2 after filing into the court.
70. P.W.3 deposed that late Chengal Reddy had executed
Ex.A1 in a sound disposing state of mind bequeathing all his properties to plaintiff and after six months of execution of Ex.A1, late Chengal Reddy handed over all his documents to plaintiff.
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71. The evidence of PW.3 discloses that he worked under
Chengal Reddy for the purpose of raising crops in the plaint schedule property and after the death of Chengal Reddy the plaintiff is the only daughter cultivating the land and that P.W.3 is the farm servant to plaintiff and attending all the agricultural work on behalf of plaintiff in suit schedule property.
72. The evidence of P.W.3 clearly disclosing that late Chengal
Reddy had executed Ex.A1 in a sound disposing state of mind bequeathing all his properties to plaintiff and after six months of execution of Ex.A1, late Chengal Reddy handed over all his documents to plaintiff and that PW.3 was present at the time of execution of Ex.A1 and also accompanied late Chengal Reddy where
Ex.A1 was scribed basing on the instruction given by Chengal
Reddy by the scribe of Ex.A1 and the late Chengal Reddy after going through the contents of the said Will put his signature and thumb impression in presence of Muni Reddy, Gangadhara Reddy and
Sriramulu Reddy and all the above three persons attested the said
Will in presence of P.W.3 and that at the time of execution of EXA.1,
PW.3 was present at that time one Gangadhar Reddy asked PW.3 to sign under EXA.1 but the scribe had expressed his opinion that the attestation of the three persons to the will under EXA.1 is sufficient, as such, PW.3 did not sign under EXA.1.
73. The evidence of PW.3 further discloses that when he was present at the time of death of Late Chengal Reddy, plaintiff performed the obsequies as she only daughter to late Chengal Reddy 41 and during that time the community elders have stated that
Chengal Reddy had executed a Will under EXA.1 in favour of the plaintiff but not in favour of defendants 1 and 2 and that Chengal
Reddy did not execute any will in favour of defendants 1 and 2 at any point of time and Ex.B2 Will is forged and fabricated document and that 2nd defendant working as fair price shop dealer having much influence in the locality including the revenue authorities is attempting to dispossess the plaintiff from the suit schedule property and that the defendants are never in possession and enjoyment of suit schedule property.
74. The evidence of P.w.3 was not destroyed in material particulars regarding the presence of PW.3 at the time of execution of Ex.A1 and also with regard to fact pf PW.3 accompanying late Chengal Reddy where Ex.A1 was scribed basing on the instructions given by Chengal Reddy by the scribe of Ex.A1 and the late Chengal Reddy after going through the contents of the said Will put his signature and thumb impression in presence of
Muni Reddy, Gangadhara Reddy and Sriramulu Reddy and all the above three persons attested the said Will in presence of P.W.3.
75. The evidence of P.W.3 was also not disputed and denied that PW.3 has not seen the Will at the time of its execution and had also not seen the written documents while it was given by Chengal
Reddy to hand over to plaintiff and had also not personally heard that Chengal Reddy informed the plaintiff that she will be the exclusive owner of suit schedule properties after his death.
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76. Defendants to prove that Ex.A1 is forged and fabricated relied upon Ex.B2 Will deed that it is the last will executed by
Chengal Reddy in favour of D1 and D2.
77. DW2 admitted before this court during his course of cross examination that his Vakil obtained certified copy of the Willnama from the court and except the one copy of the Will name no other document filed by the plaintiff in RDO office. DW2 deposed that he made enquiry with Muni Reddy and Gangadhara Reddy about the attestation made by Sriramulu Reddy to Ex.A1 and it was told to
D.W.2 that the Sriramulu Reddy has not attested Ex.A1 either along with the attestors or in their presence.
78. D.w.2 deposed that he had made enquiry with the said people after filing of the suit and before filing of written statement by him and expressed ignorance about the contents of written statements filed by him and expressed ignorance whether his Vakil had mentioned in the written statement filed by D.W.2 as there were only two attestors in Ex.A1.
79. DW2 categorically deposed that written statement was prepared by his counsel basing on the documents given by DW2.
DW2 deposed that he is not having any evidence to show that how he got Ex.B9 and expressed ignorance as to who wrote the sentence such as “the Will” is inadmissible in evidence” on Ex.B9. D.W.2 deposed that he made enquiry about the writings underneath Ex.B1 in front page and he has not decided to examine Muni Reddy and
Gangahdar Reddy before this court.
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80. The evidence of DW.2 clearly discloses that he has no knowledge of the contents of written statement and additional written statements filed by him and same is prepared by his counsel basing on the documents filed by D2.
81. Learned counsel for the plaintiff argued that EXA.1 is unconditional will and intention of testator clearly reveals that after his death the plaintiff has to enjoy the properties with absolute rights and EXA.1 is the last will of late Chengal Reddy and it will prevail over EXB.2 will and it is settled law that last will deed will only prevails and it will be binding and testator has right of option to change the will as per will and wish and that defendants are making false demonstration of the will under EXA,1 by virtue of
EXB.9 and EXB.10 which is not tenable.
82. Defendant no.2 relied under EXB.9 to prove that EXA.1 is tampered by subsequently after filing into court by the PW.2.
83. DW2 deposed before this during his course of cross examination dated 26-11-2018 that D2 came to know for the first time about the execution of the Ex.A1 Will deed when he received legal notice under Ex.B11 dated 1.7.1996 got issued by the counsel for the plaintiff prior to filing of the suit and expressed ignorance whether he sought for the copy of the said Will after receipt of the legal notice and expressed ignorance further that the copy of the
Will deed was available with him or not at the time of issuing reply notice for the legal notice under Ex.B11.
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84. The evidence of DW.2 is also before this court during his course of cross examination dated 09-07-2003 that after receiving summons from this court he verified the original records of this case along with his counsel and observed that there are only two signatures of attestors under EXA.2 and that DW.2 also heard that PW.1 stated in his cross examination that they are only two attestors of EXA.1 and DW.2 deposed that he came to know about the signatures of 3rd attestor on the EXA.1 when the PW.2 filed his chief affidavit evidence before this court. DW.2 further deposed during the cross examination of DW.2 dated 25 -07 2003 that he have seen the documents filed in this suit after receiving the summons from this court. The said three versions of DW.2 during his course of cross examination dated 26-11-2018, 09-07-2003 and 25-07-2003 reveals falsification in the evidence off DW.2 that EXB.9 and EXB.10 are created documents by the defendants.
85. If really the EXA.1 is created by subsequently affixing the signature of PW.2 in to the court, then DW.2 would have certainly stable in his versions. Perusal of evidence of PW.2 discloses that chief examination affidavit of PW.2 is filed 06-09-2002 and before that PW.1 in her evidence dated 09-08-2002 already clarified regarding the existence of three attestors of EXA.1 including PW.2 and about their presence at the time of execution of EXA.1 and said fact is not disputed and denied by way of suggestion by the learned counsel for D2 to PW.1 during her course of cross examination.
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86. If really the alleged case of tampering occurred in the court that EXA.1 is tampered in the court with the help of court staff then
D2 ought to have given complaint before the competent court regarding the alleged tampering under EXA.1 shown under EXB.9 and EXB.10.
87. The evidence of PW.1 was not destroyed in material particulars either by way of giving suggestion to PW.1 or by way of filing any documentary evidence that that PW.2 had Subsequently affixed his signature under EXA.1 after filing into the court with the help of court staffs.
88. There is no details of date month and year and circumstance described by the D2 about the alleged clandestinely signing of PW.2 under EXA.1 after filing EXA.1 into court. Hence it is established that there were three attestors under EXA.1 by the date of filing of suit documents under EXA.1 and same is projected by the D2 by filing under EXB.9 and EXB.10 only to destroy the genuine records before this court. The evidence of PW.1, PW.2 PW.3 and PW.5 and evidence of DW.1 that plaintiff performed the last rites of her father by name Chengal Reddy at the time of his death and that during the life time of Chengal Reddy, it was told by
Chengal Reddy to D.W.1 that to perform the last rites of Chengal
Reddy by the plaintiff.
89. The evidence of DW.1 clearly proved the contents of EXA.1 that late Chengal Reddy desired the plaintiff to perform his last rites of and to give his entire properties to plaintiff and it was told to 46
DW.1 by late Chengal Reddy at the time of his death that to perform the last rites of Chengal Reddy by the plaintiff and fact deposed by the DW.1, that late Chengal Reddy, did not execute any Will deed in favour of anybody means more particularly the DW.1 and D2 as late Chengal Reddy had desired and wish that his entire properties to be devolved upon the plaintiff and that the same has to be enjoyed by the plaintiff. Hence it leaves no doubt regarding the contents regarding the facts mentioned under EXA.1 that last rites of late Chengal Reddy to be performed only by plaintiff is substantiated by the evidence of wife of Late Chengal Reddy i.e
DW.1 in her course of cross examination that plaintiff should possesses and enjoy the suit schedule property as absolute owner of entire properties of late Chengal Reddy, more particularly by virtue of EXA.1. Therefore with above said discussion it is held that EXA.1 is executed by the late Chengal Reddy in favour of plaintiff is genuine and binding. Issues no.1 dated 22-01-1997 is answered accordingly in favour of plaintiff.
90. Addl. Issues 1 and 2 dated 14-10-2011:
1) Whether the 1 st defendant executed a registered Gift
deed dated 17-06-1996 bequeathing her undivided half share in
the properties of her husband to 2 nd defendant?
2) Whether since 17-06-1996, 2 nd defendant has been in
exclusive possession and enjoyment of plaintiff schedule
properties?
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Since these issues are inter connected, this court intends to answer them together.
91. 2nd defendant pleaded that the additional issue framed on 14-10-2011 are wrongly framed and the sid issues are not necessary for the purpose of deciding the suit and hence has to be deleted and hence prayed to strike out those Additional issues otherwise 2nd defendant will suffer irreparable loss and injury.
92. Learned counsel for the plaintiff submitted that addition issues dated 14-10-2011 is relevant proper and appropriate requires proper adjudication of this suit and same is framed as available documents, pleadings of both sides parties as well the considering the contention of both sides parties in presence of both sides parties and counsels and that burden of proof on addition issues dated 14- 10-2011 is on the 2nd defendant as it is framed as per the contention of 2nd defendant only and that no cogent bonafide reason assigned by the 2nd defendant and under what circumstances necessitating to delete the addition issues dated 14-10-2011 and viewed from any angle there is no merits in the contention of 2nd defendant and hence prayed to dismiss the contention of 2nd defendant regarding deletion of addition issues dated 14-10-2011.
93. Learned counsel for the plaintiff further relied upon the authority reported in 2012 (4) ALT 278 between Kotha Sailaja - vs- Thandu Yadagiri and others, wherein it is held that when the suit is filed the court should make every endeavour to decide all the questions arising therein in a comprehensive manner arising therein 48 so that the parties to the litigation will not have the necessity of the driven to further litigation.
94. Perusal of written statement of 1st defendant at para no.3 and written statement of 2nd defendant discloses that at para no. 7 and addition written statement filed on behalf of 2nd defendant on 06-08-2001 at para no. 3 and addition written statement filed on behalf of 2nd defendant on 15-09-2011 at para no. 2 and 3, it is pleaded that 1st defendant had executed EXB.1 in favour of 2nd defendant in respect of half of her share in the properties of late
Chengal Reddy covered under EXB.2 having acquired right by the 1st defendant under Ex.B2 Will deed executed by Chengal Reddy in favour of D1 and D2.
95. PW.1 categorically denied the execution of EXB.1 and
EXB.2 and deposed that 2nd defendant had created EXB.1 and
EXB.2 by taking undue advantage of innocence and that 1st defendant having no social awareness and not worldly wise.
96. P.W.1 deposed that her sons are not having courtesy towards P.W.1 and had developed aversions against the P.W.1 listening the words of father in law of 2nd defendant I.e DW.4 and the main instrumental person in the dispute is the father in law of 2nd defendant i.e DW.4 by name Narasimha Reddy who is litigant and local politician and that 2nd defendant and 3rd defendant developed aversion against P.W.1 under the misapprehension that plaintiff may give the property to her daughter as she is residing by the side of her house. P.W.1 deposed that Defendants 2 and 3 49 never maintained her at any time after their marriages. P.w.1 deposed that her father died on 24-10-1994 and she performed the funeral obsequies of her father and so also to her mother and defendants are not having any right and title over the property.
P.W.1 deposed that she executed Will in favour of her daughter
Navaneeethamma.
97. The evidence of P.W.1 is that her father Chengal Reddy never executed any Will more particularly EXB.2 in favour of any person subsequent to execution of Ex.A1.
98. P.W.1 deposed that just prior to filing of the present suit, defendants 2 and 3 had took away the defendant No.1 to their house and since then she was made to reside along with defendants 2 and 3 and that prior to her departure to the house of D2 and D3, first defendant was being maintained by plaintiff and P.W.1 used to also maintain her father Chengal Reddy during his life time and that first defendant has not executed any document more particularly the gift settlement deed under Ex.B2 in favour of 2nd defendant.
99. First defendant herself examined as P.W.1 and reiterated the contents of written statement and got marked Ex.B1. D.W.1 deposed that her husband executed Will under Ex.B2 and after the demise of Chengal Reddy she and 2nd defendant used to cultivate the suit land and she executed Ex.B2 gift settlement deed in favour of 2nd defendant.
100. The evidence of PW.5 that 1st defendant aged about 83 years is not in sound in mind and not well versed in her social life 50 and that 2nd defendant with assistance of his father in law polluted the mind of the 1st defendant by taking the bickering in the family as an advantage and taken into his clutches and created gift settlement deed under Ex.B1 and that 1st defendant has no right over the suit schedule property and D1 has no right to execute the property under Ex.B2 in favour of 2nd defendant with respect to her half share and Ex.B2 is sham and nominal document.
101. DW.2 though deposed that as per the understandings in family members, the family properties of his father should go to defendant No.3 and properties of late Chengal Reddy should be enjoyed by the D2, However DW.2 did not file any documentary evidence before this court that as per the understandings in family members, the family properties of his father should go to defendant
No.3 and properties of late Chengal Reddy should be enjoyed by the
D2 .
102. DW2 admitted during his course of cross examination that the contents of Ex.B1 dated 17-06-1976 was prepared on his instructions after perusal of Ex.B2 Will deed dated 20-09-1983 and there is no mention of properties and there is no reference of
Willnama of 1983 under Ex.B2 Will deed and the source of acquisition of right by the deceased 1st defendant under Ex.B1 registered gift deed dated 17-06-1976.
103. DW2 admitted further that there is Pattadar pass book and title deed under Ex.B3 and B4 standing in the name of D2 as on the date of execution of Ex.B1 and there is no mention in Ex.B1 51 about Ex.B3 and B4 in respect of the property covered under Ex.B1 on the date of execution of Ex.B1 and admitted further that on the date of execution of Ex.B1, plaintiff and D1 were residing in one house in S.No.18 l of plaint schedule property and Ex.B1 was executed without the knowledge and consent of the plaintiff.
104. The evidence of DW.4 also proves that there is no settlement deed in existence in respect of properties of late Chengal
Reddy and he only signed in will deed and did not sign under any settlement deed.
105. It is the case of first defendant that by virtue of Ex.B2, she has got right over the schedule property and that 2nd defendant is absolute owner of suit schedule property.
106. The admission made by DW2 that there is no pattadar pass book or any revenue records in the name of 1st defendant .
DW.2 deposed that at the time of execution of EXB.1 DW.2 has handed over only Willnama of the year 1983 and admitted further that there is no boundaries mentioned under EXB.1 and contents of
EXB.1 is prepared as per the instructions of DW.2 after perusal of the contents under EXB.2 and there is no mention of properties and there is no reference of Willnama EXB.2 under EXB.1 and about the source of acquisition by DW.1 under EXB.1 and there is existence of
EXB.3 and EXB.4 as on the date of execution of EXB.1 and same is not mentioned under EXB.1 about the issuance of EXB.3 and
EXB.4 evidencing the possession and enjoyment of suit schedule property defendant by the date of issuance of Ex.B3 and B4, there 52 was already existing Ex.B1 having executed in his favour which clearly proves that Ex.B3 and B4 are created documents by influencing the revenue authorities.
107. The execution of Ex.B1 gift deed dated 17-06-1996 is not established by 2nd defendant for the reason that there is no schedule of properties mentioned under Ex.B2 will deed and it is evidence of DW.2 that EXB.1 is prepared only after perusal of EXB.2
Will as per the instructions of DW.2 and the document under Ex.B1 was executed only based on the EXB.2 by the 1st defendant. As discussed supra DW.1 categorically admitted before this court that late Chengal Reddy had not executed any will in favour of any body in respect of his entire properties and that Chengal Reddy had wish and desired that plaintiff has to perform the last rites of Late
Chengal Reddy and after demise of Chengal Reddy, entire properties of Late Chengal Reddy should be devolved upon the plaintiff perusal of Ex.B2. Therefore with the above said discussion, it is held that 2nd defendant is not possession and enjoyment of suit schedule property by virtue of Ex.B1 gift settlement deed. Issues answered accordingly against the defendant No.2.
108. Addl. Issue No.1 to 3 dated 8-8-2001. Since these
issues are inter connected, this court intends to answer them
together.
1) Whether the Will dated 29-05-1983 allegedly executed by
Late Chengal Reddy in favour of the defendant Nos 1 and 2, is
true and valid?
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2) Whether the alleged registered gift settlement deed dated 17-
06-1996 executed by defendant No.1 in favour of the defendant
No.2 is true and valid?
3) Whether the defendant No.2 has been in exclusive possession
and enjoyment of the suit schedule properties in consequences
of alleged registered gift settlement deed dated 17-06-1996
executed by defendant?
109. 2nd defendant pleaded that by virtue of Ex.B2 will deed
dated 29-05-1983 executed by late Chengal Reddy in favour of D1
and D2, first and 2nd defendant acquired rights over the suit schedule property and that 1st defendant out of love and affection towards second defendant adopted him and executed a gift settlement deed under EXB.1 in respect of her half of the share in suit schedule property. There is no evidence on record that the property covered under Ex.B2 will deed is the suit schedule property which was executed in gift settlement deed in favour of 2nd defendant by virtue of Ex.B1.
110. Ramesh Varma -Vs- Rajesh Saxsena , 2017 (3) ALD 188 (SC) at para 13 page 191, where execution of the Will proof manner and mode of execution has to be established by the propounder showing satisfactory evidence that Will was signed by testator at a relevant time and was in a sound and disposing state of mind that he understood the nature and effect of disposition and put his signature to the document on his own free will and the 54 document shall not be used as evidence until one attesting witness called for purpose of proving its execution.
111. PW.1 categorically denied the execution of EXB.1 and
EXB.2 and deposed that 2nd defendant had created EXB.1 and
EXB.2 by taking undue advantage of innocence and that 1st defendant having no social awareness and not worldly wise.
112. Ex. B.2 will deed is the registered will deed dated 29.05.1983 and it is a compulsorily attestable document.
113. In the authority reported in AIR 1964 SC 529 between
Shashi Kumar Banerjee & Ors vs. Subodh Kumar Banerjee the
Hon’ble Supreme Court of India at para 4 held that the mode of
proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by section 63 of the Indian
Succession Act. Here it is pertinent to refer to Section 63 of the
Indian Succession Act, 1925, that reads as under: Execution of unprivileged wills:- Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea, shall exercise his will according to the following rules:-
a) the testator shall sign or shall affix his marks to the will, or it shall besigned by some other person in his presence and by his direction.
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b) The signature mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to she writing as a will.
c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
114. A plain reading of section 63 (c) of the Indian Succession
Act, 1925 makes it clear that one of the mandatory requirements of due execution of the will is that the testator shall execute the will in the presence of two witnesses, and that the said witnesses shall see the testator signing the will and such witnesses shall sign on the will in the presence of the testator. In the authority reported in AIR
1955 SC 346 between Girja Datt Singh vs.Gangotri Datt Singh
the Hon’ble Supreme Court of India at para 14 held that in order to prove the due attestation of the will the propounder of the will has to prove that the attesting witnesses have seen the testator signing the will, and they themselves signed the will in the presence of the testator.
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115. According to section 68 of the Indian Evidence Act, 1872 one attesting witness has to be examined to prove the execution of the will. In the instant case.
116. DW 3 who is independent witnesses and one of the attestor of EXB.2 will deed deposed in his chief affidavit filed in lieu of chief examination that EXB.2 will deed is executed by the late
Chengal Reddy in presence of DW.3, A Narasimha Reddy and K.
Sankara Reddy and EXB.2 is scribed by the one Jagdeesh Mudali as per the instruction of late Chengal Reddy, however DW.3 during course of cross examination expressed ignorance about the contents of the chief affidavits filed by him. DW3 specifically deposed that the contents of chief affidavit was not read over and explained to him and it does not contain his signature. Therefore the evidence of
DW.3 proved that he has not seen the testator late chengal reddy executing the will under EXB.2 in the presence of two witnesses, and that the said witnesses I.e DW.3 and DW.4 had also not seen the testator Chengal Reddy signing the will and that DW.3 and
DW.4 had not sign on the will in the presence of the testator late
Chengal Reddy as per the mandatory provision provided under*section 63 (c) of the Indian Succession Act, 1925 which makes it clear that one of the mandatory requirements of due execution of the will is that the testator shall sign the will in presence of two attesting witnesses and attesting witnessess shall also sign under will in presence of the testator signing under the will.
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117. DW.3 expressed ignorance whether the signature of late
Chengal Reddy is appearing under EXA.1 or not and further expressed ignorance about the fact that plaintiff performed the last rites of late Chengal Reddy and has no knowledge whether Chengal
Reddy had cancelled EXB.2 or not.
118. DW.2 deposed that there is no reason mention under
ExB2 Will deed about excluding plaintiff for the properties covered under Ex.B2. DW2 admitted that there is no schedule of property under Ex.B2.
119. DW4 is one of the attestors of Ex.B1 corroborated the version of DW3 in same lines in his chief affidavit filed in lieu of chief examination and deposed that late Chengal Reddy had executed EXB.2 will in favour of DW.1 and DW.2 and same is scribed by the Jagdish Modali and it was read over to late Chengal
Reddy and thereafter late Chengal Reddy put his signature on
EXB.2 in presence of DW.4, and other two attestors by name A.
Damodar reddy and Sankar reddy and after Chengal Reddy put his signature DW.4 put his signature and A. Damodar Reddy and
Sankar reddy also put their signature in presence of deceased
Chengal Reddy and thereafter Jagdish Modali put his signature and he was in sound disposing state of mind.
120. DW4 deposed that he only signed on one document with regard to properties of Chengal Reddy and the said document is Will and not settlement deed and expressed ignorance about the 58 existence of settlement deed regarding the properties of late
Chengal Reddy.
121. DW.4 deposed that though attended the last rites ceremony of late Chengal Reddy, however expressed ignorance as to performed last rites of late Chengal Reddy. D.W.4 admitted that his daughter was given in marriage with the son of plaintiff in the year 1986. DW4 deposed that EX.B1 document do not disclose that it was executed at Mahadeva mangalam Village.
122. DW4 deposed that at the dictation of D1 the scribe of
EXB.2 drafted it and 1st defendant brought the survey number of the land under EXB.2 and D2 had not brought the land details and
EXB.2 was written straight away.
123. The evidence of DW.4 discloses that EXB.2 will deed was executed as per the instructions of 1st defendant and not as per the instructions of late Chengal Reddy.
124. The expression of ignorance regarding existence of any other will apart from will deed EXB.2 and admission on part of
DW.4 that plaintiff is the only the legal heir of Chengal Reddy discloses that legal heir for the properties of late Chengal Reddy is only Plaintiff .
125. It is not the case of DW.4 that late Chengal Reddy had executed only will deed under EXB.2 in favour of D1 and D2 and that EXB.2 is only the last will of late Chengal Reddy.
126. The expression of ignorance by DW.4 regarding existence of any other will apart from will deed EX.B.2 and about the person 59 who performed the last rites of late Chengal Reddy inspite of DW.4 attended the last rites ceremony of late Chengal Reddy and admission of DW.4 on the other hand regarding the fact that plaintiff is only legal heir, proves that plaintiff being only legal heir of Chengal Reddy had performed the last rites of late Chengal Reddy and entitle to suit schedule property covered under EXA.1. The evidence of DW.4 shows that he is not aware of fact of last testament of deceased Chengal Reddy I.e EXA.1.
127. It is not the case of DW.4 that EXB.2 is the last testament of late Chengl Reddy. DW4 who is attestor of Ex.B2 Will deed deposed that he has signed only Will deed and not under any settlement deed covered under Ex.B1.
128. The evidence of D.w.1 who is wife of Chengal Reddy discloses that Chengal Reddy during his life time had expressed his wish and desire in favour of plaintiff in respect of suit schedule properties to be devolved upon the plaintiff after his life time and that plaintiff has to perform last rites of Chengal Reddy.
129. The said fact was not disputed and denied by the defendants and in turn the 2nd defendant admitted that plaintiff by that time of death of Chengal Reddy was residing in the house of
Chengal Reddy and performed last rites.
130. DW1 deposed that Chengal Reddy has not executed any
Will to any other person, however the fact remains that late
Chengal Reddy had wish and desired that plaintiff after demise of late Chengal Reddy to enjoy entire properties of late Chengal Reddy 60 and that the last rites of Chengal Reddy has to be performed by the plaintiff corroborates the contentions of the plaintiff in execution of
Ex.A1 Will in favour of plaintiff by Chengal Reddy and that Chengal
Reddy had desired and wished to execute suit schedule property and entire his self-acquired properties to be bequeathed only to the plaintiff and not to any other person and for the said reason the said desire was expressed by Chengal Reddy to his wife Valliamma and to full fill the desire of late Chengal Reddy,EXA.1 was executed by late Chengal Reddy. D.W.1 who got fulfilled the desire of her husband late Chengal Reddy through the plaintiff by permitting the plaintiff in the last rites of her husband of Chengal Reddy.
131. 2nd defendant failed to prove the execution of Ex.B1 gift deed dated 17-06-1996 by 1st defendant in favour 2nd defendant for the reason that there is no schedule of properties mentioned under
Ex.B2 will deed and it is evidence of DW.2 that EXB.1 is prepared only after perusal of EXB.2 will as per the instructions of DW.2 and the document under Ex.B1 was executed only based on the EXB.2 by the 1st defendant. As discussed supra DW.1 categorically
admitted before this court that late Chengal Reddy had not
executed any will in favour of any body in respect of his entire
properties and that Chengal Reddy had wish and desired that plaintiff has to perform the last rites of Late Chengal Reddy and after demise of Chengal Reddy, entire properties of Late Chengal
Reddy should be devolved upon the plaintiff by virtue of Ex.B2.
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132. The evidence of DW.4 also proves that there is no settlement deed in existence in respect of properties of late Chengal
Reddy and he only signed in will deed and did not sign under any settlement deed.
133. Therefore with the above said discussion, this court is of the opinion that there is no such gift settlement deed under EXA.1 executed in favour of 2nd defendant by first defendant and that the admission made by 1st defendant during her course of cross examination that Chengal Reddy desired and wish to execute the suit schedule property and his self acquired property, only in favour of plaintiff and that plaintiff has to perform his last rites of Chengal
Reddy proves that the suit schedule property was executed under
Ex.A1 only in favour of plaintiff. Therefore under such circumstances it is held that late Chengal Reddy had not EXB.2 will deed in favour of D1 and D2 and therefore the question of execution of Ex.B1 gift settlement deed executed by D1 in favour of D2 do arise as admittedly the executant under EXB.1 had allegedly acquired rights only by virtue of EXB.2 will deed . Issues answered accordingly against the defendants.
134. Issues No.4` In view of my findings given in Issues dated 22-01-1997 and Additional issues dated 8-8-2001 and Additional
Issues dated 14-10-2011 and Additional Issue dated 15-11-2018, the suit of the plaintiff is and hereby decreed.
135. In the result, the suit is decreed with costs declaring the plaintiff as absolute owner of suit schedule property. The suit is 62 further decreed granting permanent injunction in favour of the plaintiff and against the defendants, restraining the defendants from causing any sort of interference and obstruction in the possession, and enjoyment of the plaintiff in respect of the suit schedule property
Dictated to the Personal Assistant, after his transcription,
corrected and pronounced by me in the open court this the 31st day of December, 2018.
Additional Senior Civil Judge,
Chittoor.
APPENDIX OF EVIDENCEWITNESSES EXAMINED FOR
For plaintiff: For defendant:
PW.1: D.Lakshmamma DW.1: A.Valliamma PW.2: A.Sreeramulu Reddy DW.2: Lokanatha Reddy Pw.3: Gangaiah DW.3: A.Damodara Reddy Pw.4: G.Nagaraja Naidu DW.4: A.Narasimha Reddy P.W.5 A. Subramnyam Reddy DW.5: G.Sivalingam
Exhibits marked on behalf of plaintiffs
Ex.A1 Unregistered will executed by Chengal Reddy in favour of PW.1 dt.18-08-1985
Ex.A2 Registered sale deed dt.24-6-1970 executed by A.R.Subramanyam Reddy in favour of Chengal Reddy Ex.A3 Registered sale deed dt.5-8-1970 executed by Munemma, Nagamma, Sunkaramma and minor Rathnamma in favour of Chengal Reddy Ex.A4 Registered sale deed dt.27-7-1971 executed in favour of Chengal Reddy by Sidda Reddy and on behalf of his minor sons Ex.A5 Registered sale deed dt.6-2-1974 executed in favour of Chengal Reddy by Govinda Reddy
Ex.A6 Ration card issued by MRO, G.D.Nellore Mandal in favour of Ekambaram Reddy Ex.A7 (Ex.24 & Voters list for the year 1999
25) Relevant entry in Ex.A7 Ex.A8 (Ex.20 & Voters list for the year 1980
21) Relevant entry in Ex.A8 63
Ex.A9 and A.9(a) Voters list for the year 1983 Relevant entry in (Ex.22 & 23) Ex.A9 Ex.A10 Certified copy of Judgment in Os.221/1967 and
OS.72/1968 on the file of PJCJ, Chittoor
Ex.A11 Copy of the said reply notice
Ex.A12 Copy of order passed by RDO in ROC.No.G/646/2002 Ex.A13 Copy of notice issued by RDO, Chittoor in ROC.No.G/646/FMS/2002 Ex.A14 Registration copy of sale deed dt.10-1-1963
Ex.A15 Registration copy of sale deed dt.28-1-1991
Ex.A16 Registration copy of sale deed dt.28-1-1991 executed in favour of Veeraswami Reddy Ex.A17 Registration copy of sale deed dt.20-2-1991 in favour of D.Chinnabba Reddy
Ex.A18 Registration copy of sale deed dt.20-2-1991 executed in favour of Govinda Reddy Ex.A19 Voter enumeration list
Ex.A20 Voters list relating to Bukkaratnam Grampanchayat for the year 1980 Ex.A21 Relevant entry at page No.5 in Ex.A20
Ex.A22 Voter list for 139 Vepanjeri assembly constituency for the year 1983 Ex.A23: Relevant entry at page No.4 in Ex.A22
Ex.A24 Voters list of Bukkapatnam grampanchayat of Vepanjeri constituency, G.D.Nellore Mandal Ex.A25 Relevant entry at page 11 in Ex.A24 Ex.A26 Voters list of 139 Vepanjeri Assembly constituency of the year 1995 Ex.A27 Relevant entry in Ex.A26
Ex.A28 Cist receipts (4) in number
Exhibits marked on behalf of defendants:
Ex.B1 Registered gift settlement deed dt.17-6-1996 executed by D1 in favour of D2
Ex.B2 Registered will dt.29-5-1983 executed by Chengal
Reddy in favour of D2
Ex.B3 Pattadar pass book in favour of D2
Ex.B4 Title deed pass book in the name of D2
Ex.B5 Cist receipt in the name of D2 64
Ex.B6 & B7 Cist receipts (2 in number)
Ex.B8 Voters list of Bukkapatnam Grampanchayat for the year 1993
Ex.B9 Xerox copy of the will dt.18-8-1985 furnished to the advocate for D1 & D2
Ex.B10 Xerox copy of will dt.18-8-1985
Ex.B11 Copy of regd. Notice dt.1-7-1996
Ex.X1 to X4 : Attested Xerox copy of ROR produced by Pw.4
ASCJ, CTR.
(Fair)