IN THE COURT OF THE III ADDL.DISTRICT JUDGE , GADWAL
Monday, this the 22nd day of December, 2014.
PRESENT : Sri P.Prabhakar, III Addl.Dist.& Sessions Judge, Gadwal.
Original Suit No. 5 of 2013
Between :
1. Dr.M.Indudhar S/o Late M.Virupakshaiah, Aged: 66 years, Occupation: Medical Practitioner, Resident of plot No.54, H.No.5-1- 219/11, Yadagiri Taluq and District of Karnataka State
2. M.Shashank S/o Late M.Virupakshaiah, Aged: 61 years, Occupation:Retd.Govt.Employee, H.No.A-140/Ph.I Vanasthalipuram, Hyderabad-70 …Plaintiffs
And
1.M.Prabhaiah S/o late M.Chandrasekharaiah, Age: 61 years, Occupation: Retd.Employee Resident of 1st cross road 1st cross Nehru Colony Bellary proper and District of Karnataka State.
2. M.Somanatan S/o Late M.Chandrasekharaiah, Aged; 40 years, Occupation: Govt.Employee, Resident of Qtr.No.136 type 6 Shakthinagar, Raichur Taluq and District of Karnataka State
3. M.Vaidyanath S/o Late M.Chandrasekharaiah, Aged; 36 years, Occupation:Govt.Employee, Resident of Qtr.No.184 Type 5 Helipad lane, Shakthinagar, Raichur Taluq and District of Karnataka State
4. M.Kashinath S/o Late M.Chandrasekharaiah, Aged: 54 years, Occupation:Agriculture, Resident of H.No.4-11 Pathapalem village of Dharoor Mandal, Mahabubnagar District.
5. M.Viswanath S/o Late M.Chandrasekharaiah, Aged: 52 years, Occupation: Agriculture, Resident of H.No.-4-11, Pathapalem village of Dharoor Mandal, Mahabubnagar District.
6. M.Chennabasamma W/o Late Chennamallaiah, Aged: 82 years, Resident of H.No.3-2 Kanmanoor village of Wanaparthy Mandal, Mahabubnagar District.
7. Gangigudi Sugamma @ Sharanamma W/o Late Panchaiah, Aged: 75 years, Resident of Gabbur village of Raichur Taluq and District of Karnataka State.
8. J.Nageshamma W/o Jambulingaiah, Aged: 70 years, Resident of H.No. 1-15, Madhavaram village of Makthal Mandal, Mahabubnagar District.
This suit is coming on before me for final hearing on 13-11-2014 in the presence of Sri P.Radhakrishna Reddy, Advocate for the Plaintiffs and Sri C.Raghavendra Chary, Advocate for defendants 1 to 3 and defendants 4 to 8 remained exparte and the matter having stood over for consideration till today this court delivered the following:-
J U D G M E N T
1. This is a suit filed by plaintiffs for passing preliminary decree ordering partition of schedule properties into three equal shares and to allot 2/3rd share to plaintiffs 1 and 2 and deliver vacant possession of their share with other consequential reliefs as the court deem fit and necessary.
2. Case of plaintiffs in brief is as follows:- Schedule properties belonged to late M.Veerupakshaiah. He had three sons and three daughters.
Plaintiffs 1 and 2, father of defendants 1 to 5 and defendants 6 to 8. Late
Veerupakshaiah purchased the land covered by Sy.No.279 to an extent of 3.17 guntas situated at Eerlabanda village of Dharoor Mandal. He died intestate leaving behind him lands covered by Sy.No.93 admeasuring Ac.15.28 guntas,
Sy.No.268 admeasuring Ac.3.07 guntas and Sy.No.279 admeasuring Ac.3.17 guntas. Marriages of defendants 6 to 8 are performed long back. They have no interest in claiming share in schedule properties. They are made only as proforma defendants. Veerupakshaiah also got lands in Sy.No.29 and 30 totally an extent of Ac.11.00 guntas at Edulapuram village of Raichur Taluq and those lands were acquired by Karnataka Government for Thermal Power plant at
Shakthinagar,Raichur on payment of compensation. Plaintiffs and defendants 1 to 5 received compensation amount. Defendants 2 and 3 were also provided employment on compassionate grounds. Defendants 4 and 5 are residing at
Pathapalem village of Dharoor Mandal in schedule houses bearing Nos 4-11 and 4-13 left by late Veerupakshaiah by doing cultivation of schedule lands. 1st defendant is settled at Bellary. Plaintiffs and defendants are only LRs of deceased Veerupakshaiah. Plaintiffs are away from Pathapalem village due to their employment and used to visit now and then. Late Chandrasekharaiah father of defendants 1 to 5 used to look after schedule lands passed away on 20.8.2003 without partitioning the suit properties. On his demise plaintiffs demanded for partition but defendants 1 to 5 successfully postponed partition on one pretext or other. Plaintiffs 1 and 2 are entitled for 1/3rd share each and defendants are entitled for 1/3rd share of their father Late Chadrasekharaiah. On 15.04.2013 plaintiffs got issued legal notice demanding partition and separate possession of joint family properties. Defendants 1 to 3 gave reply on 2.05.2013 alleging schedule lands are self acquisitions of Late M.Veerupakshaiah and
Veerupakshaiah bequeathed schedule lands in favour of their father
Chandrasekharaiah with false allegations. Defendants 1 to 3 might have obtained registered will from Late Veerupakshaiah by playing fraud and misrepresentation during his last days and brought into light after lapse of time.
Will is not valid and binding. Hence the suit.
3. Defendants 1 to 3 filed common written statement. Averments in brief are:- It is false to say that plaintiffs are visiting Pathapalem village now and then. Ever since from the date of their employment they are residing far away from their father having no connection with their father or the properties. Father of efendants Chandrasekharaiah looked after the suit lands and welfare of his father Late Veerupakshiah. Schedule properties are not joint family properties.
No need to obtain will deed by their father by playing fraud and misrepresentation from Late Veerupakshaiah as alleged in the plaint. Will executed by Late Veerupakshaiah is registered one. Question of bringing it into light after long lapse of time does not at all arise.
4. Late Veerupakshaiah during his life time long ago out of his exertion and without any aid from joint family purchased the schedule lands covered by Sy.nos 93,268 and 279 during 1350 and 1352 faslies from its lawlful owners Nagi Reddy S/o Chinna Reddy, Gudise Buddanna S/o Pagunta and Ranga
Reddy S/o Narsi Reddy. Veerupakshaiah with his earnings purchased the lands.
Father of these defendants namely Chandrasekharaiah looked after schedule properties and also his father Late Veerupakshaiah by staying at Pathapalem village as plaintiffs are away from Pathapalem village on account of their employement. Schedule properties are not ancestral properties of Late
Veerupakshaiah and they are his self acquisitions. As Late Veerupakshaiah was taken care by their father Chandrasekharaiah out of love and affection he bequeathed schedule properties under a registered will dated 30.1.1988 executed by him in sound state of mind. In the will deed due to oversight
Sy.No.268 is wrongly mentioned as 269. On death of Veerupakshaiah will came into force and Chandrasekharaiah came into exclusive possession and enjoyment of schedule lands and after his demise which took place in the year 2003 defendants 1 to 3 came into exclusive possession and enjoyment of schedule land. Original will is in the custody of defendants 4 and 5 who are not cordial with them and sailing with plaintiffs. Plaintiffs are aware of the will executed by
Late Veerupakshaiah.
5. Suit of plaintiffs is barred by limitation as it was filed 25 years after death of Veerupakhiah who died in the year 1988. In pursuance of the will father of defendants also got mutated his name in revenue records. Defendants are openly enjoying the schedule lands to the exclusion of plaintiffs for the last more than 25 years. Suit claim of plaintiffs is hopelessly barred by limitation. It is false to say that father of defendants postponed partition and thereafter defendants had not cooperate for amicable partition. Court fee is paid under section 34(1) under APCF Act is not correct. Plaintiffs have no cause of action and prayed for dismissal of the suit with costs.
6. On above pleadings the following issues are framed:-
7. Whether late Veerupakshiah executed will on 30.1.1988 in favour of Chandrasekharaiah father of defendants 1 to 3 and it is true, valid and binding on plaintiffs ?
2. Whether plaintiffs are in joint possession of schedule properties along with defendants and court fee paid under section 34(2) of
APCF and S.V Act is correct?
3. Whether plaintiffs are entitled for partition and separate possession of schedule properties as prayed for ?
4. To what relief ?
8. On behalf of plaintiffs PWs 1 to 3 examined and Exs A1 to A6 marked. On behalf of Defendants DWs 1 to 4 examined and Exs B1 to b23 and
X1 to X5 marked.
9. PW.1 is 2nd plaintiff, PW.2 and 3 are third parties to this suit.
DW.1 is 1st defendant, DW.2 is Jr.Asst. attached to Sub Registrar office, Gadwal,
DW.3 is attestor of will dated 30.1.1988, DW.4 is scribe of the will
10. Ex.A1 is certified copy of khasra pahani for the year 1954-55, Ex.A2 is certified copy of pahani issued for the year 1991-92, Ex.A3 is certified copy of
ROR extract, Ex.A4 is extract of FMB issued by Taluk Surveyor, Ex.A5 is office copy of legal notice dated 15.4.2013, Ex.A6 is reply notice given by defendants
dated 2.5.2013.
11. Exs B1 and B2 are certified copies of sethvars in respect of
Sy.No.93 and 268, Exs B3 and B4 are certified copies of vasool baki register extracts for Sy.Nos 93 and 268 issued for the fasli 1352, Ex.B5 is certified copy of registered will dated 30.1.1988, Ex.B6 is certified copy of Khasra pahani of 1954-55, Exs B7 to B20 are certified copies of pahanies covering the years 1961- 62 to 2011-12, Ex.B21 is certified copy of ROR, Exs B22 and 23 are death certificate extracts of parents of DW.1 dated 23.8.2003 and 8.10.2011.
12. Ex.X1 is attested copy of cover page of volume No.7 in Book-3,
Ex.X2 and X3 are attested copies of relevant pages in Ex.X1 register, Ex.X4 is thumb impression register volume No.38, Ex.X5 is relevant page containing signatures and thumb impressions of executant of the will.
13.ISSUE No.1:-
Defendants 1 to 3 none other than nephews being children of plaintiffs deceased brother who are contesting the suit opposing the claim of plaintiffs for partition of plaint schedule properties pleaded that the schedule properties covered by Sy.No.93,268 and 279 described as items 1 to 3 of schedule are self acquired properties of Late Veerupakshaiah their grandfather and during his life time in a sound state of mind out of love and affection as he was taken care by their father Late chandrasekharaiah he bequeathed schedule properties in his favour under a registered will dated 30.1.1988. Veerupakshaiah executant of the will died in the year 1988 and the said will came into force. In terms of will their father Chandrasekharaiah took possession of schedule properties. He also got mutated his name in revenue records with the knowledge of plaintiffs who had knowledge about will executed by Late
Veerupakshaiah filed the suit belatedly suppressing the true facts. Denying the genuineness of will dated 18.1.1988 set up by defendants plaintiffs contended will it is brought into existence by playing fraud and misrepresentation on Late
Veerupakshiah during his last days. Will is not executed by Late Veerupakshaiah in sound state of mind on his own accord out of love and affection. Not only the father of defendants 1 to 3 took care of their father Veerupaksiahah they also took care of him by visiting him now and then. In view of their employment elsewhere they are constrained to leave Pathapalem village. Taking advantage of the situation father of defendants 1 to 3 prevailed upon Late Veerupakshaiah and by playing fraud and misrepresentation brought into existence the registered will dated 18.1.1988 to defeat the claim of plaintiffs and to grab the plaint schedule properties exclusively for themselves.
14. In order to prove the will dated 30.1.1988 said to have executed by
Late Veerupakshaiah in favour of father of defendants 1 and 2 and its validity defendants 1 and 2 propounders of the will on whom the burden lies let in the evidence of DWs 1 to 4 and relied on Exs B1 to B23 and Exs X1 to X5 marked.
1st defendant examined as DW.1 filed chief examination affidavit reiterating the averments made in written statement. In support of the affidavit he filed Exs B1 to B23. Ex.B1 to B21 relating to the schedule lands covered by Sy.Nos 93 and
268. Exs B1 and B2 certified copies of Sethvars reveal one G.Budaiah S//o
Pagunti was the land holder of the land covered by Sy.No 268 admeasuring
Ac.3.07 guntas and Late Veerupakshaiah S/o Prabhaiah is the land holder of the land covered by Sy.No. 93 admeasuring Ac.15.28 guntas. Similarly as per Ex.B3 certified copy of Vasool baki register extracts Sy.No.93 was revised as 41 in the name of Veerupakshaiah S/o Prabhaiah in the year 1352 fasli and earlier to him one Nagi Reddy S/o Chenna Reddy was pattadar. Similarly as per Ex.B4 Vasool baki register extract of 1352 fasli Sy.No.268 was revised as 65 and it stood in the name of Buddappa S/o Pagunti Gudesi was the land holder and earlier to him one Budappa S/o Pagunti was its owner and it extent is Ac.3.17 guntas. As per
Ex.B6 khasra pahani of 1954-55 Sy.Nos 93,268 admeasuring Ac.15.28 guntas,
Ac.3.17 guntas stands in the name of Veerupakshaiah S/o Prabhaiah Ac.8.03 guntas in SyNO.279 stands in the name of Ranga Reddy S/o Narsi Reddy. Ex.B7 to B20 certified copies pahanies covering the period 1961-62 to 2011-12 are also duly correlated with the entries in Ex.B6 khasra pahani of 1954-55 in respect of
Sy.No.93, 268 and 279 with regard to ownership and possession. Ownership of the land covered by Sy.No.279 is mutated in the name of defendants as per
Ex.B12 pahanies in the year 1985-86 and the other pahanies issued thereafter are duly correlated with Ex.B12 showing the name of Veerupakshaiah as pattadar till 1990-91 name of father defendants 1 to 5 namely
Chandrasekharaiah was mutated in revenue records for the first time as per pahanies in the year 1995-96 showing him as pattadar and possessor as per
Ex.B14 pahani and his name is being continued as owner and possessor till 2009- 10 and in the pahanies of 2011-12 name of 4th defendant namely Kashinath is shown as possessor in respect of land covered by Sy.Nos 268 and 93 for an extent Ac.3.07 guntas and Ac.10.28 guntas and nature of possession is by inheritance and the land covered by Sy.No.279 admeasuring Ac.3.17 guntas stands in the name of Chandrasekharaiah i.e., father of defendants 1 to 5.
Ex.B21 is the ROR pertaining to the schedule lands. In Ex.B1 ROR name of
Chandrasekharaiah father of defendants 1 to 5 is shown as owner and possessor and his source of title is also mentioned as succession by virtue of will with registered No.6/88.
15. Plaintiffs also filed revenue records such as Khasra pahani of 1954- 55, pahani of 1991-92 and ROR extracts pertaining to the schedule lands. As per Ex.A1 khasra pahani Veerupakshaih father of plaintiffs was owner and possessor. Similarly in Ex.A2 pahani also the said Veerupakhshaiah is described as owner and possessor of schedule lands covered by Sy.No.93,279 and 268. In
Ex.A3 ROR name of Chandrasekharaiah father of defendants and names of D4 and D5 are shown as pattadars and possessors in respect of Sy.No.93 and name of Chandrasekharaiah father of defendants as shown as pattadar and possessor of Sy.No.279 and 268. Ex.A3 is duly correlated with Ex.B21 ROR filed by the defendants.
16. In the aforesaid circumstances from the revenue records exhibited by the defendants more particularly Ex.B1 to B4 certified copies of Sethvars and extracts of Vasul baki register pertaining to the period covered earlier to 1954-55 duly proved that the schedule lands are self acquisitions of Veerupakshaiah father of paintiffs and grandfather of defendants. Purchase of item No.3 of schedule by Veerupakshaiah is not in dispute. Plaintiffs also categorically pleaded that item No.3 was purchased by Veerupakshaiah. As per Ex.B1 and B2 one Gudise Buddanna was the original owner of the land covered by Sy.No.268 to an extent of Ac.3.07 guntas. Similarly one Nagireddy S/o Chenna Reddy was the original owner of Sy.No.93 by 1352 faslies. Name of Veerupakshaiah is recorded as owner and possessor of the land covered by Sy.No. 93 and 268 for the first time in Khasra pahani of 1954-55. Neither plaintiffs have questioned
Ex.B1 to B4 nor filed any documents and let in any evidence to doubt the genuineness of Exs B1 to B4. On the other hand 2nd plaintiff examined as PW.1 in his evidence categorically admitted that schedule lands covered by Sy.Nos 93,268 and 279 are self acquisitions of Late Veerupakshaiah. Thus the contention of the plaintiffs that items 1 to 3 of schedule lands are ancestral properties has no basis. Plaintiffs have not let in any evidence to rebut the evidence of defendants to substantiate the nature of schedule agricultural lands as self acquisitions of Late Veerupakshaiah.
17. Admittedly Veerupakshiah died in the year 1988. Defendants propounded will and denied right of plaintiffs in claiming share more particularly in schedule lands. Before filing of suit plaintiffs got issued legal notice to defendants to which defendants 1 to 3 given reply revealing execution of will by
Late Veerupakshaih in favour of their father Late Chandrasekharaiah who also died in the year 2003, 10 years prior to the filing of the present suit. Plaintiffs in the plaint did not specifically deny the genuineness of the will propounded by the defendants. They vaguely stated in the plaint that the defendants brought into existence the said will by playing fraud and misrepresentation prevailing upon
Veerupakshaiah legator obviously taking advantage of his stay with their brother
Chandrasekharaiah till his death. Will propounded by the defendants is marked as Ex.B5. It is registered will.
18. In order to prove the will defendants examined it’s attestor and scribe as DWs 3 and 4. Original will is not filed by the contesting defendants 1 to 3 stating that the original will is in the custody of D4 and D5. Pending suit they also served notices on defendants for production of the will. They did not produce the same. Defendants 4 and 5 remained exparte in the suit. They simply replied that they are not aware of the will till they were served notices by defendants 1 to 3 for its production. It is the consistent case of defendants 1 to 3 that the defendants 4 and 5 are sailing with plaintiffs and not cooperating with them. In those circumstances defendants also summoned register of the thumb impression and signatures and the volume containing the extract of the registered will executed by Late Veerupakshaiah from Sub Registrar office,
Gadwal. Junior Assistant attached to Sub Registrar Office is examined as DW.2 and relevant documents containing original signatures of Late Veerupakshaiah are marked as X1 to X6. DWs 3 and 4 attestor and scribe of the will duly identified signature of Late Veerupakshiah executant of the Ex.B5. They categorically stated in their evidence that Ex.B5 will was scribed by DW.4 on the instructions of Veerupakshaish and it was attested by DW.3 and another in his presence. They also stated that Late Veerupakshaiah was in a sound state of mind by the time of execution of the will. Both are cross examined at length but nothing is elicited to doubt their credence or to impeach the evidence spoken by them.
19. From the evidence let in on behalf of both parties it is crystal clear that the plaintiffs 1 and 2 who are elder and youngest son of Late
Veerupakshaiah left Pathapalem village and settled in Karnataka and Hyderabad and living continuously with their families on account of their employment.
Father of defendants namely Chandrasekharaiah being eldest stayed back at
Pathapalem and looked after the welfare of his parents Late Veerupakshaiah and his wife till their death and the plaintiffs are only occasional visitors. Even on plain reading of the evidence spoken by PW.1 it is also manifest that Late
Veerupakshaiah even did not attend the marriage of PW.1 as he married a girl of his choice. It was attended by Chandrasekharaiah father of defendants. PW.1 admitting absence of his father during his marriage without denying
Chandrasekharaiah’s presence on the eve of his marriage went to an extent of saying that his father was not allowed by Chandrasekharaiah to attend his marriage as he married a girl of his choice against the wish of Late
Chansrasekharaiah father of defendants which is not at all convincing and far from reality. For one reason or other 1st plaintiff did not chose to enter into witness box to doubt the execution of the will by Late Veerupakshaiah in favour of Chandrasekharaiah.
20. Evidence spoken by Plaintiffs who filed the present suit 20 years after the demise of their father Late Veerupakshaiah and 5 years after the demise of Chanddrasekharaiah alleging Chandrasekharaiah postponed partition on one pretext or other and they came to know about will said to have been executed by Late Veerupakshaiah for the first time on receipt of reply notice issued by defendants 1 to 3 before filing of the suit is not convincing. If the will is unregistered one there will be some truth in it but whereas Ex.B5 is registered one. Chandrasekharaiah who allegedly prevailed upon Late Veerupakshaiah and got execution of will in his favour kept quiet without disclosing Ex.B5 will to anybody till they got reply notice is not at all convincing and devoid of merits.
Evidence let in by the defendants in proof of Ex.B5 is quite consistent and absolutely no grounds to doubt the genuineness of Ex.B5 will propounded by defendants. Reason for exclusion of the plaintiffs while executing the will in favour of Late Chandrasekharaiah is obviously on account of plaintiffs settlement elsewhere since the time of their marriages and taking of his welfare exclusively by Late Chandrasekharaiah. No enmity in between plaintiffs and defendants in the year 1988 to bring into existence will by Chandrasekharaiah exclusively for himself. In fact by the time of execution of Ex.B5 will Late Veerupakshaiah was only aged 60 years and he was in sound state of mind without any ailments.
Contention of the plaintiffs that will is brought into existence by playing fraud or misrepresentation has no basis. As per the evidence of DWs 3 and 4. It is not in dispute that Late Veeruupakshaiah was taken care by Late Chandrasekharaiah till his death. In the aforesaid circumstances contention of the plaintiffs that will propounded by the defendants is not valid and binding on them and it is brought into existence by Chandrsekharaiah by playing fraud is not tenable. Plaintiffs did not take any steps to disprove Ex.B5 will duly proved by the defendants. They did not take any steps to send signatures of Late Veerupakshaiah to any handwriting expert for comparison to doubt the genuineness of Veerupakshaiah signatures on the original of Ex.B5. In the circumstances there is no other go except to draw adverse inference against plaintiffs for not taking steps in sending
Ex.B5 will to handwriting expert’s opinion. Accordingly this issue is decided in favour of defendants and against plaintiffs.
21.ISSUE No.2:-
Defendants alleged that the plaintiffs ought to have paid advolerum court fee under section 34(1) of APCF Act contending that plaintiffs are not in joint possession of schedule properties along with defendants. They claimed since the time of Ex.B5 will coming into force his father Late Chandrasekharaiah is in possession of schedule properties to the exclusion of plaintiffs till his death which took place in the year 2003 and thereafter they came in to possession and enjoyment of schedule lands. Plaint schedule consists of five items, Item No.1 to 3 are agricultural lands and item Nos.4 and 5 are house property. Under Ex.B5 will only item No.1 to 3 are bequeathed by Late Veerupakhshaiah in favour of
Late Chandrasekharaiah father of defendants 1 to 5. Item No.4 and 5 are not included in the will and it is in occupation of the defendants 4 and 5 none other than sons of Late Chandrasekharaiah. Neither in reply notice nor in written statement defendants deny the right and title of plaintiffs over item No.4 and 5 of plaint schedule nor they claimed any exclusive right over item No.4 and 5 of plaint schedule. It is cordinal principle that possession of one co-owner however long it may be allures to the benefit of other co-owners and thus in the circumstances it cannot be said that the plaintiffs are totally excluded from Item
No.4 and 5 of plaint schedule houses which are in possession of defendants 4 and 5 who remained exparte. In the circumstances as defendants duly proved
Ex.B5 will executed in respect of items Nos 1 to 3 of plaint schedule and also their exclusive possession it can be safely said that the plaintiffs are not at all in joint possession of item Nos.1 to 3 plaint schedule but they are in joint possession of item Nos.4 and 5 of plaint schedule. In the circumstances as plaintiffs are found to be in possession and enjoyment of item Nos.1 to 3 of plaint schedule it can be safely said that the plaintiffs have no right to pay court fees under section 34(2) of APCF Act as contended by defendants and they ought to have paid advolerum court fee on market value of item Nos.1 to 3 of plaint schedule. Whereas in respect of item Nos.4 and 5 of house property as it is in joint possession of plaintiffs and defendants their right to pay court fee under section 34(2) of APCF and SV Act is to be restricted only in respect of item
Nos.4 and 5 of plaint schedule. This issue is decided accordingly directing plaintiffs to pay advolerum court fee on market value of item Nos 1 to 3 of plaint schedule under section 34(1) of APCF and SV Act.
22.ISSUE No.3:-
In view of answering issue No.1 as defendants duly proved that item Nos.1 to 3 of plaint schedule lands are self acquisitions of Late
Veerupuakshaiah and further proved that Late Veerupakshaiah bequeathed the same under Ex.B5 will in favour of his son Late Chandrasekharaiah father of defendants 1 to 5 the same is valid and binding on plaintiffs. Contention of plaintiffs that will is brought into existence by defendants and their father Late
Chandrashekharaiah by playing fraud and misrepresentation has no force and it has no basis. In view of Ex.B5 will plaintiffs have no right to claim any share in item Nos.1 to 3 of plaint schedule. As Late Virupakshaiah had not bequeathed item Nos.4 and 5 house property under Ex.B5 will as a matter of right plaintiffs are entitled for equal shares along with defendants 1 to 5 as legal representatives of their brother late Chandrashekharaiah and defendants 6 to 8 their sisters.
23. Learned Council for plaintiffs relied on the following authorities
1. Firstly:-Decision reported in AIR 1995 Kerala Page 208 rendered in case of Vattakam Purath Parambil Ananda Bhai and another Vs.,
Kanaka Bhai and others for a proposition that under section 63 of
Succession Act on mere registration of will it cannot be presumed genuine
2. Secondly:-Decision of Hon’ble Apex Court reported in 2007(2) ALT page 38 rendered in case of Om Prakash and others vs., Shiv
Kumar and others for a proposition that burden is on propounder of the will to remove any suspicious circumstances
3. Thirdly:-Decision of Hon’ble High Court reported in 2014(5) ALT page 232 rendered in case of Anantharaju Venkata Seshamma Vs.,
Rajupalem Seshavataram(died) and others for a proposition that the beneficiary under a will must not only prove its execution but must also explain the suspicious circumstances in relation to will
4. Lastly:- on another decision of Apex Court reported in 2007(4)
ALT page 24 rendered in case of Hardev Singh Vs., Gurmail
Singh(dead) by LRs for a proposition that if will is not proved general law of succession by inheritance.
In the circumstances none of the authorities will come to the rescue of plaintiffs.
In above
24. Counsel for defendants relied on following authorities 1.Firstly:- Decision of Hon’ble High Court reported in 2013(6) ALD 628 (DB) rendered in case of Dr.Narender Bahadur Vs., Birender
Bahadur and others for a proposition that the burden to prove the fraud or misrepresentation is fairly upon persons who plead such fraud and other circumstances without giving any scope for shifting of onus much less burden.
2.Secondly:- He relied on another decision of Hon’ble High Court reported in 2003(3) ALD page 115 rendered in case of Palla
Sampath Kumari Vs., Kinthala Venkata Rao and another for a proposition that under section 34 of Registration Act it has to be taken that the Sub Registrar followed the procedure prescribed by the Registration Act for registering the will Ex.B5 in view of presumption available under section 114 of Evidence Act that official acts are duly performed.
3.Thirdly:- He relied on another decision of Apex Court reported in 2013(4) SCJ 358 rendered in case of MB.Ramesh(D) by LRs., and others Vs., K.M.Veeraje Urs(D) By LRs., and others for a proposition will has to be proved like any other document except that evidence in proof of will and additionally has to satisfy the requirement of section 63 of Succession Act a part from one under section 68 of Evidence Act.
4. Lastly:- he relied on another decision of Apex Court reported in 1969 AIR 253 rendered in case of Bibi Aisha and others Vs., Bihar
Subai Sunni Majlis Avaqaf and others for a proposition that Section 65(a) of Evidence Act is not controlled by Section 65(f) and when case falls under section 65(a) of evidence Act Secondary evidence may be given of the existence or contents of a original document was admissible though the case falls under clause (a) any secondary evidence of the document is admissible. Clause (a) is not controlled by clause (f). Secondary evidence may be given when original is shown or appears to be in possession or power of the person against whom the document is sought to be proved and when after the notice mentioned in section 66, such person does not produce it.
Accordingly this issue is decided partly in favour of plaintiffs negativing their claim for partition in respect of items No.1 to 3 of plaint schedule lands covered by Sy.Nos 93,268 and 279.
25.ISSUE No.4:-
In view of answering Issues 1 to 3 preliminary decree is passed ordering partition and separate possession of item Nos 4 and 5 of plaint schedule house properties 4-11 and 4-13 into six equal shares and to allot two such shares to plaintiffs 1 and 2 one such share belonged to Late Chandrasekharaiah to defendants 1 to 5 and one share each to defendants 6 to 8 equally negativing the relief of partition of item No.1 to 3 of schedule lands covered by Sy.Nos 93,279 and 268 and suit is partly decreed accordingly but in the circumstances without costs.
Dictated to Steno-Typist after transcribed by him, corrected and
pronounced by me in open court on this the 22nd day of December, 2014
I II Addl.Dist. & Sessions Judge,
Gadwal
Appendix of Evidence
For Plaintiff: For Defendant:
PW.1 M.Sheshank DW.1 Prabhaiah PW.2 Minalsab DW.2 Hariya Naik PW.3 R.Mallikarjun Swamy DW.3 Srinivasulu DW.4 Syed Shabuddin
EXHIBITS MARKED FOR
For Plaintiff: Ex.A1 Certified copy of khasra pahani in the year 1954-55 Ex.A2 Certified copy of pahani issued for the year 1991-92 Ex.A3 Certified copy of FOR extract Ex.A4 Extract of FMV issued by Taluk Surveyor Ex.A5 Office copy of legal notice dated 15.4.2013 Ex.A6 Reply notice given by defendants dated 2.5.2013.
For Defendant: ExsB1&B2 Certified copies sethvars in Sy.No.93 and 268 ExsB3&B4 Certified copies of vasool baki register extracts for Sy.Nos 93 and 268 issued for the fasli 1352 Ex.B5 Certified copy of registered will dated 30.1.1988 Ex.B6 Certified copy of Khasra pahani of 1954-55 ExsB7toB20 Certified copies of pahanies covering the years 1961-62 to 2011-12 Ex.B21 Certified copy of ROR ExsB22&23 Death certificates extracts of parents of DW.1 dated 23.8.2003 and 8.10.2011. Ex.X1 Attested copy of cover page volume No.7 in book-3 Ex.X2&X3 Attested copies of relevant pages in Ex.X1 register Ex.X4 Thumb impression register volume No.38 Ex.X5 Relevant page in signatures and thumb impressions registered contained signature of executant of the will.
III Addl.Dist. & Sessions Judge, Gadwal
PRELIMINARY DECREE
IN THE COURT OF THE III ADDL.DISTRICT JUDGE
GADWAL.
Monday, this the 22nd day of December, 2014.
PRESENT : Sri P.Prabhakar, III Addl.Dist.& Sessions Judge, Gadwal.
Original Suit No. 5 of 2013
Between :
1. Dr.M.Indudhar S/o Late M.Virupakshaiah, Aged: 66 years, Occupation: Medical Practitioner, Resident of plot No.54, H.No.5-1- 219/11, Yadagiri Taluq and District of Karnataka State
2. M.Shashank S/o Late M.Virupakshaiah, Aged: 61 years, Occupation:Retd.Govt.Employee, H.No.A-140/Ph.I Vanasthalipuram, Hyderabad-70 …Plaintiffs
And
1. M.Prabhaiah S/o late M.Chandrasekharaiah, Age: 61 years, Occupation: Retd.Employee Resident of 1st cross road 1st cross Nehru Colony Bellary proper and District of Karnataka State.
2. M.Somanatan S/o Late M.Chandrasekharaiah, Aged; 40 years, Occupation: Govt.Employee, Resident of Qtr.No.136 type 6 Shakthinagar, Raichur Taluq and District of Karnataka State
3. M.Vaidyanath S/o Late M.Chandrasekharaiah, Aged; 36 years, Occupation:Govt.Employee, Resident of Qtr.No.184 Type 5 Helipad lane, Shakthinagar, Raichur Taluq and District of Karnataka State
4. M.Kashinath S/o Late M.Chandrasekharaiah, Aged: 54 years, Occupation:Agriculture, Resident of H.No.4-11 Pathapalem village of Dharoor Mandal, Mahabubnagar District.
5. M.Viswanath S/o Late M.Chandrasekharaiah, Aged: 52 years, Occupation: Agriculture, Resident of H.No.-4-11, Pathapalem village of Dharoor Mandal, Mahabubnagar District.
6. M.Chennabasamma W/o Late Chennamallaiah, Aged: 82 years, Resident of H.No.3-2 Kanmanoor village of Wanaparthy Mandal, Mahabubnagar District.
7. Gangigudi Sugamma @ Sharanamma W/o Late Panchaiah, Aged: 75 years, Resident of Gabbur village of Raichur Taluq and District of Karnataka State.
8. J.Nageshamma W/o Jambulingaiah, Aged: 70 years, Resident of H.No. 1-15, Madhavaram village of Makthal Mandal, Mahabubnagar District. … Defendants
CLAIM : Suit for Partition and separate possession of schedule Properties.
Cause of action arose on 15.4.2013 and on 2.5.2013 at Eerlabanda village of Dharur Mandal.
The suit is valued at Rs.18,64,625/-, 2/3rd share of plaintiff share comes to Rs.12,43,084/- and fixed court fee of Rs.200/- is paid u/s 34 (2) of APCF & SV Act.
: 2 :
Plaint Presented on: 20.7.2013 Plaint filed on : 10.9.2013
This suit was coming on before me for final disposal on this day in the presence of Sri P.Radhakrishna Reddy, Advocate for the Plaintiffs and Sri
C.Raghavendra Chary, Advocate for the defendant Nos 1 to 3 and the defendants 4 to 8 remained exparte, and this court DOTH ORDER AND DECREE as follows :
1. That the suit of the plaintiff be and hereby is partly decreed without costs.
2. A preliminary decree is passed in favour of plaintiffs for partition and separate possession of item No.4 and 5 schedule house properties in to six equal shares and to allot two such shares to the plaintiffs, one such share belong to late Chandrashekharaiah to D1 to D5 equally, and one share each to D6 to
D8.
3. The relief of partition of item Nos 1 to 3 of schedule lands covered by Sy.Nos.93, 279 and 268 is negatived.
4. That the plaintiffs are directed to pay advolerum court fee on the market value of item Nos.1 to 3 of plaint schedule lands.
Given under my hand and the seal of the court, this the 22nd day of December, 2014..
III Addl.District Judge, Gadwal.
MEMORANDUM OF COSTS
Particulars of Costs For Plaintiffs For Defendants For
1 to 3 Defendants 4 to 8 Stamp on Plaint Rs. 200=00 - Stamp on Power Rs. 2=00 2=00 Exparte Stamp on process Rs. 300=00 - - Miscellaneous - - - Advocate Fees - For Senior Rs.25,000=00 25,000=00 For Junior Rs. 8,333=00 (1/3rd of Senior Fee)
TOTAL : Rs.33,835=00 25,002=00 -
III Addl.District Judge, Gadwal.
: 3 :
SCHEDULE OF PROPERTY
Lands situated in the limits of Eerlabanda village, Dharur Mandal, Mahabubnagar District.
1.Sy.No.93 extent Ac.15-28 guntas bounded by : East : Sy.No.94 West : Sy.No.115 North : Sy.No.92 and 91 South : Road from Eerlabanda to Pagunta
2.Sy.No.268 extent Ac.3-07 guntas bounded by : East : Madiga Thippanna West : Sy.No.267 North : Sy.No.269 South : Sy.No.284
3.Sy.No.279/2 extent Ac.3-17 guntas bounded by : East : Maddelabanda gutta West : Land of Raichur Ranga Reddy North : Land of Maldoddi Hanmanna South : Land of Madiga Thippanna
III Addl.District Judge, Gadwal.