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IN THE COURT OF V ADDL. DISTRICT & SESSIONS JUDGE :: EAST
GODAVARI DISTRICT: RAJAMAHENDRAVARAM
Present: Sri P.R. Rajeev, VIII Addl. District and Sessions Judge cum Spl. Judge for Trial of Offences against Women, Rajamahendravaram. (FAC) V Addl. District and Sessions Judge, Rajamahendravaram. Thursday, the 10th day of February, 2022
Original Suit No.84/2013
Between:
1.Thaninki Marry Virginia Kumari, W/o Prakash Babu, Hindu, aged about 51 years, Housewife, R/o 17-D, Madras Battai Street, Villywakkam, Chennai-49, City Civil Court Chennai.
2.Thaninki Louis Ratna Kumar, S/o Prakash Babu, Hindu, aged about 33 years, Employment, R/o 17-D, Madras Battai Street, Villywakkam, Chennai-49, City Civil Court Chennai.
3.Komarapu Leana Vinoliya @ Manjari, W/o Komarapu John, Hindu, aged about 31 years, Housewife, R/o Flat No.303, Chandana Residency, Venkata Ramana Colony, Old Alwal, Secunderabad – 500 010.
4.Pitta Ramesh, S/o Chantiyya, Hindu, aged about 32 years, R/o Hukumpeta, Rajamahendravaram, JCJ Rajamahendravaram. … Plaintiffs
And
1.Kondeti Prakash Kumar, S/o late Mahalakshmi @ Prakasa Rao, Hindu, aged about 63 years, Retired Employee, R/o Venkatagiri, Pidimgoyyi Village, Rajamahendravaram Rural, JCJ Rajamahendravaram.
2.Yeluri Diamond, W/o Yeluri John Shedreck, Hindu, aged about 40 years, Housewife, R/o Bommuru, Rajamahendravaram Rural, JCJ Rajamahendravaram.
3.Pilli Varahala Rani @ Yesther Rani, W/o Pilli Vijaya Kumar, Hindu, aged about 37 years, Housewife, R/o Alcot Gardens, Rajamahendravaram, JCJ Rajamahendravaram.
4.Eluri Gold Mear, W/o Samuel, Hindu, aged about 35 years, Housewife, R/o Visakhapatnam, JCJ Visakhapatnam.
5.Kondeti Anil Raj Kumar, S/o late Varahala Raju, Hindu, aged about 35 years, Employment, R/o Venkatagiri, Pidimgoyyi Village, Rajamahendravaram Rural.
6.Kondeti Sakkubai, W/o Prakash Kumar, Hindu, aged about 61 years, Housewife, R/o D.No.13-10, Venatagiri, Pidimgoyyi, Rajamahendravaram Rural.
7.Mondu Nuka Ratnam, W/o Veeraswamy, Hindu, aged about 53 years, Housewife, R/o D.No.13-155, Venkatagiri, Pidimgoyyi, Rajamahendravaram Rural.
8.Sri Srinivasa Rao, S/o Sri Suryanarayana, Hindu, aged about 46 years, R/o D.No.14-110/2, Dowlaiswaram, Rajamahendravaram Rural.
9.Polavarapu Shyam, S/o China Kannayya, Hindu, aged about 45 years, Business, D.No.45-39-20, Ambedkar Nagar, Rajamahendravaram, JCJ Rajamahendravaram.
10.Kotha Mangatayaru, W/o Venkata Swamy, Hindu, aged about 47 years, Housewife, D.No.77-3-10, Gandhipuram – 3, Rajamahendravaram, JCJ Rajamahendravaram. (Defendants 9 and 10 are added as per orders in IA 53/2017 dated 21.09.2017) … Defendants 2
This suit is coming up for final hearing on 21.01.2022 before me in the presence of Sri M.Srikanth, advocate for the plaintiffs and Sri M.Siva Prasad, advocate for 1 to 4 defendants, Sri T.S.R.Murthy, advocate for the 6th defendant, Sri I.Viswanadham, advocate for the 8th defendant, Sri S.V.S.Krishna Prasad, advocate for the 9th defendant and the defendants 5, 7 and 10 were set ex parte, and upon perusing the material on record and having stood over for consideration till this day, this court made the following:-
J U D G M E N T
1.The plaintiffs 1 to 3 are seeking declaration of their title in respect of items 1, 3 to 5 of the plaint schedule property and for recovery of possession from the defendants and also the 2nd plaintiff seeking declaration to declare his title over item No.2 of the schedule property and for recovery of possession from the defendants and also future profits from the defendants etc.
2.The brief averments of the plaint are as follows;
The 1st plaintiff is the daughter, 1st defendant and late Kondeti Varahala Raju the father of D5 are the sons of late Kondeti Mahalakshmi @ Prakasa Rao and late
Kondeti Varahalamma. The said Varahalamma who is wife of Mahalakshmi @
Prakasa Rao died when the 1st plaintiff is of tender age. After her death,
Mahalakshmi @ Prakasa Rao married Sarojini and they had no issues. The father of 5th defendant namely Varahala Raju predeceased his father.
Late Mahalakshmi @ Prakasa Rao during his life time used to work in ILTD at
Rajamahendravaram and from out of his self earnings he acquired properties and vacant site which are shown in the schedule. The said Mahalakshmi @ Prakasa
Rao along with his wife Sarojini used to live in a part of schedule properties and used to let out the remaining properties for rent. The 1st defendant after completing the education joined in Horlicks Factory, Dowlaiswaram and set up separate residence at Bommuru Village by staying with his family till the death of his father on 02.02.2001. Late Varahala Raju also worked in Horlicks Factory in
Bommuru and stayed separately. After his death, his wife and 5th defendant stayed with maternal relations of 5th defendant for some time and thereafter
Mahalakshmi @ Prakasa Rao and Sarojini brought the 5th defendant and he was with them for some time. Late Mahalakshmi @ Prakasa Rao during his life time in a sound and disposing state of mind executed registered Will dated 17.09.1997 bequeathing item No.2 of plaint schedule property in favor of his 2nd wife Sarojini with absolute rights and also gave life interest in items 1, 3 to 5 of plaint schedule properties in favor of his 2nd wife Sarojini and vested remainder to plaintiffs 1 to 3 with absolute rights. Late Mahalakshmi @ Prakasa Rao also conveyed interest on 3 his bank deposits in favor of his 2nd wife Sarojini and after her death the plaintiffs 1 to 3 are entitled for fixed deposits in equal shares.
The registered Will dated 17.09.1997 is the last Will and testament of late
Mahalakshmi @ Prakasa Rao and came into operation after his death on 02.02.2001. The 1st defendant started staying along with his stepmother Sarojini after the death of Mahalakshmi @ Prakasa Rao in one of the items of plaint schedule property. The 1st defendant under the guise of managing property and financial affairs started harassing the stepmother and prevented her from collecting rents from the tenants. Late Sarojini filed suit in OS No.1053/2001 on the file of I Addl. Junior Civil Judge, Rajamahendravaram against the defendants 1 and 5 and the tenants during that time. Late Sarojini filed registration extract of
Will dated 17.09.1997 in OS No.1053/2001 as the original Will was secreted by the defendants 1 to 5. The defendants 1 to 5 contested the suit alleging that late
Mahalakshmi @ Prakasa Rao executed an unregistered Will dated 14.09.2000 by altering the terms and conditions in registered Will dated 17.09.1997. After contesting the suit in OS No.1053/2001 decreed in favor of late Sarojini and against the defendants 1 to 5 on 22.02.2007 which became final.
Subsequently, in view of illegal actions of the defendants 1 to 5, late Sarojini and the plaintiffs 1 to 3 filed suit in OS No.39/2007 on the file of Family Court (Addl. District Court) at Rajamahendravaram against the defendants 1 to 5.
During the pendency of the suit, Sarojini died on 09.04.2009. During the life time of late Sarojini in a sound and disposing state of mind executed Will dated 10.10.2008 bequeathing item No.2 of plaint schedule property to the 4th plaintiff and as such the 4th plaintiff got implicated in the suit. The defendants 1 to 4 contested the suit in OS No.39/2007 though late Sarojini executed Will dated 06.01.2009. The learned Family Judge (Addl. District Judge) at
Rajamahendravaram as per Judgment and decree dated 05.11.2011 in OS 39/2007 held that the registered Will dated 17.09.1997 in favor of the plaintiffs 1 to 3 is true and valid and the unregistered Will dated 14.09.2000 in favor of the defendants 1 to 5 is not true and valid. The learned Family Court Judge also held the two Will of late Sarojini are not true and as per registered Will dated 17.09.1997 late Sarojini became absolute owner of item No.2 of plaint schedule property as she died intestate, the plaintiffs and the defendants 1 to 5 have become joint owners and they are entitled for file suit for partition as per their personal law of succession. As per Judgment and decree in OS 39/2007, the plaintiffs are entitled for recovery of possession of items 1, 3 to 5 of plaint 4 schedule properties beside fixed deposits. The defendants 1 to 4 having aggrieved by the Judgment and decree in OS No.39/2007 preferred AS 652/2011 on the file of Hon’ble High Court of AP, Hyderabad. The plaintiffs also preferred cross objection in SR 15283/2011 having aggrieved by the decree and Judgment in respect of item NO.2 of plaint schedule property. Both the appeal and cross objection are pending.
The Hon’ble High Court of AP granted interim stay of execution of decree in
OS 39/2007 on condition of defendants 1 to 4 depositing the entire suit costs,
money part of the decree and on further condition that the defendants could deposit Rs.5,000/- per month until further orders.
During the pendency of suit in OS No.39/2007, the defendants foisted the false criminal case against the 2nd plaintiff and his father Thaninki Prakash Babu and initially the case was registered as a private PRC and later taken on file by the
Prl. Assistant Sessions Judge, Rajamahendravaram the defendants 1 to 4 cited the 6th defendant as one of the witnesses in the case but they did not choose to examine her.
The 1st and 2nd plaintiffs are residing in Chennai and 3rd plaintiff along with her husband are employed at Hyderabad and they are living there. Taking advantage of the absence of plaintiffs, the defendants 1 to 5 in collusion with the defendants 6 to 8 started bringing collusive sale deeds. The plaintiffs came to know that the 6th defendant executed registered sale deed dated 07.12.2011 in favor of the 7th defendant in respect of item No.1 of plaint schedule property. The 6th defendant also executed rectification deed dated 12.01.2012 rectifying the same recitals. The 6th defendant also executed registered sale deed dated 24.08.2012 in favor of 8th defendant in respect of item No.5 of plaint schedule property. In the sale deeds, the 6th defendant recited that she acquired the property under unregistered Will dated 16.01.2001 executed by late Mahalakshmi @ Prakasa Rao. The alleged Will dated 16.01.2001 propounded by the 6th defendant never seen the light of day and acted upon and asserted by 6th defendant at any point of time. The 1st defendant who is the husband and defendants 2 to 4 who are the children of 6th defendant never mentioned about the Will dated 16.01.2001 in favor of 6th defendant in the earlier proceedings. The defendants 1 to 5 set up Will dated 16.01.2001 in favor of 6th defendant having realized they cannot succeed on the Will propounded by them in earlier proceedings.
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The defendants in order to defeat and cause hurdles to the plaintiffs to enjoy the fruits of decree in their father in collusion brought up existence of alleged Will dated 16.01.2001 and the sale deeds which are not valid and unenforceable. The 6th defendant is not a party to the earlier proceedings and the defendants 1 to 4 in order to circumvent the injunction orders granted by Hon’ble
High Court of AP set up 6th defendant and brought into existence of sale deeds in favor of the defendants 7 and 8. There used to be a tiled house consisting of five portions in existence of plaint schedule property. After Judgment and decree in OS 39/2007 and during the pendency of appeal before the Hon’ble High Court of AP, the defendants 1 to 6 illegally demolished the tiled house. A registered notice got issued on 03.08.2012 to the defendants 1 to 7, the 7th defendant received the notice but failed to respond and the other defendants got the notice returned.
The plaintiff again got issued a registered notice dated 19.08.2012 to the
Secretary Gram Panchayat calling them not to mutate the name of 7th defendant.
The plaintiff also got issued registered notice dated 18.02.2013 to the defendants 1 to 6 and they all got the notices returned. Hence, the suit.
3.The defendants 5, 7 and 10 remained ex parte. The defendants 1 to 4, 6, 8 and 9 contested the suit by resisting the claim of the plaintiffs. The brief averments in the written statement filed by them are as follows;
The 1st defendant along with the defendants 2 to 4 contended that the suit is filed with an intention to harass the defendants knowing well about the execution of deed by K.Mahalakshmi @ Prakasa Rao in a sound and disposing state of mind in favor of the 6th defendant. Item No.2 of schedule property is in joint and constructive possession of all the parties. The plaintiffs unnecessarily shown them as defendants only to cause loss and defame them in the eyes of society.
D6 stated in the similar lines as contended by the defendants 1 to 4. The defendants 8 and 9 stated that they are bona fide purchasers of vacant site for a valuable consideration having believed the representation of their vendor.
4.Basing on the respective pleadings of both parties to the suit, my learned predecessor framed the following issues and additional issues for trial:
(1)Whether the Will dated 16.01.2001 executed by late Kondeti Mahalakshmi @ Prakasa Rao is true, valid and enforceable? (2)Whether the 6th defendant acquired title over item No.5 of plaint schedule property by virtue of the above referred Will? (3)Whether the alienation of item No.5 of plaint schedule property in favor of the 8th defendant under registered sale deed dated 24.08.2012 6 (Document No.4978/2012) in pursuance of the above referred Will is valid? (4)Whether the plaintiffs 1 to 3 are entitled to claim title over items 1 and 5 of the plaint schedule properties and for recovery of their possession?
(5)Whether the 2nd plaintiff is entitled to claim title over item No.2 of the plaint schedule property and for recovery of possession of the same?
(6)Whether the plaintiffs are entitled for future profits?
(7)To what relief?
ADDITIONAL ISSUES DATED 18.04.2019:-
(1)Whether D9 is a bona fide purchaser of plaint schedule property for valuable consideration?
(2)Whether the suit claim is barred by time?
(3)To what relief?
5.During the course of trial, on behalf of the plaintiffs, the 1st plaintiff was examined as PW1 and exhibited A1 to A34 on their behalf. The defendants 1 to 4 did not adduce any evidence and no documents marked on their behalf. The 6th defendant examined herself as DW1 and got exhibited document B1. The 6th defendant also examined one of the attester to the Will dated 16.01.2001 namely
Kollipara Prabhakara Rao, s/o Mattayya as DW2, Notary Advocate namely Allamki
Raghuram S/o Sanyasi Rao who attested the Will dated 16.01.2001 as DW4. The 8th defendant examined himself as DW5 and 9th defendant as DW6.
6.The learned counsel for the plaintiffs represented that the plaintiffs 1 to 3 are the absolute owners of item Nos.1, 3 to 5 of schedule property in terms of registered Will executed by the father of 1st plaintiff in a sound and disposing state of mind. The defendants are nothing to do with the schedule properties and right from the beginning they are causing problems to the plaintiffs as well as the 2nd wife of late K.Mahalakshmi @ Prakasa Rao namely Sarojini in enjoying the schedule properties. The earlier litigation brought by late Sarojini and plaintiffs 1 to 3 against the defendants 1 to 5 shows about the recognition of registered Will stands in the name of the plaintiffs 1 to 3.
7.The learned counsel further represented that the defendants 1 to 4 having failed in the earlier litigation by contending as if late K.Mahalakshmi @ Prakasa
Rao executed unregistered Will in their favor and also preferred appeal by the
Hon’ble High Court of AP they went upon having realized they will not succeed in
the appeal by creating Will in favor of 6th defendant who is no other than the wife and mother of defendants 1 to 4 as if late K.Mahalakshmi @ Prakasa Rao executed 7
Will in favor of 6th defendant. The defendants 1 to 4 given go bye to the stay order granted by Hon’ble High Court of AP by disposing of the part of schedule property by 6th defendant in favor of the defendants 7 to 10. The entire evidence placed by the defendants creates suspicion with regard to the Will stands in favor of the 6th defendant and the suspicious wings around the Will said to have been executed by K.Mahalakshmi @ Prakasa Rao in favor of the 6th defendant was not satisfactorily explained by the executant. The learned counsel in support of his contention also placed reliance upon the evidence which are discussed hereunder.
8.Though this Court granted several opportunities to the contesting defendants to put forth their arguments but none came forward to put forth defence arguments as such this Court taken the arguments on behalf of the defendants as heard.
9.In view of the contention put forth by the plaintiffs and the defendants as per plaint and written statement as well as the oral and documentary evidence placed by the contesting parties to the suit, now the issues are taken up for discussion to find out “Whether the plaintiffs are entitled for the said claim?”
ISSU E Nos.1 to 5:-
10.Before dwelt upon the evidence adduced by both parties to the suit, it is pertinent to refer the earlier litigation that went on between the plaintiffs 1 to 4 herein, the defendants 1 to 5 herein and late K.Sarojini.
The 1st plaintiff is the daughter, 1st defendant and late Kondeti Varahala Raju who is the father of D5 are the sons of K.Mahalakshmi @ Prakasa Rao and late
K.Vajralamma. The said Vajralamma wife of K.Mahalakshmi @ Prakasa Rao died when the 1st plaintiff is of tender age. K.Varahala Raju predeceased his father.
After the death of Vajralamma, K.Mahalakshmi @ Prakasa Rao married Sarojini and had no issues.
After the death of K.Mahalakshmi @ Prakasa Rao on 02.02.2001 the 2nd wife late K.Sarojini filed suit in OS No.1053/2001 on the file of learned I Addl. Junior
Civil Judge, Rajamahendravaram against the defendants 1 and 2 herein and other
tenants seeking permanent injunction by restraining the defendants 1 and 2 herein in any way collecting the rents from the tenants. The defendants 1 and 2 contested the suit and the said suit was decreed in favor of late K.Sarojini as against the defendants 1 and 2 herein dated 22.02.2007. The certified copy of plaint, written statement, decree and Judgment in OS No.1053/2001 passed by 8 learned I Addl. Junior Civil Judge, Rajamahendravaram are exhibited as A1 to A5.
Subsequently, the plaintiffs 1 to 4 herein along with late K.Sarojini filed suit against D1 to D5 herein in OS No.39/2007 on the file of learned Family cum Addl.
District Judge, East Godavari, Rajamahendravaram seeking declaration that the
plaintiffs 1 to 3 herein are the absolute owners of item Nos.1, 3 to 5 of schedule properties herein and for recovery of possession. During the pendency of the suit,
K.Sarojini died on 09.04.2009 and 4th plaintiff therein impleaded as party to the suit as per the Will executed by late Sarojini in respect of item No.2 of schedule property herein. The defendants 1 to 5 herein contested the suit. The learned
Family cum Addl. District Judge as per decree and Judgment dated 05.09.2011 in
OS No.39/2007 granted relief in favor of the plaintiffs 1 to 3 and as far as the item
No.2 of the schedule property herein dismissed the suit by directing both parties to the suit to work out their remedy as per law of succession. The certified copy of plaint, written statement and decree in OS No.39/2007 on the file of Family cum
Addl. District Judge are exhibited as A6 to A8. The defendants 1 to 5 having aggrieved by the decree and Judgment passed in OS No.39/2007 in respect of items 1, 3 to 5 of schedule properties preferred appeal before Hon’ble High court of AP, Hyderabad in AS No.652/2011. The plaintiffs 1 to 3 also preferred cross objection in SR No.15283/2011 in respect of item No.2 of schedule property as per decree and Judgment passed in OS No.39/2007. The Hon’ble High Court of AP in
ASMP No.2175/2011 in AS No.652/2011 granted stay of operation of decree and
Judgment in respect of item Nos.1, 3 to 5 in OS 39/2007. The served copy of stay order dated 12.10.2011 in ASMP No.2175/2011 in AS No.652/2011 exhibited as
A9. The appeal preferred by the defendants 1 to 5 and the cross objection filed by the plaintiffs 1 to 3 before Hon’ble High Court of AP over decree and Judgment in
OS No.39/2007 passed by learned Family cum Addl. District Judge,
Rajamahendravaram are pending.
11.It is clear from the contention of the plaintiffs as well as the defendants 1 to 5 and also their stand in the earlier litigation in OS No.1053/2001 on the file of I
Addl. Junior Civil Judge and OS No.39/2007 on the file of Family cum Addl. District
Judge, Rajamahendravaram the plaintiffs 1 to 3 and late K.Sarojini who is the
second wife of late K.Mahalakshmi @ Prakasa Rao that during the life time of
K.Mahalakshmi @ Prakasa Rao in a sound and disposing state of mind executed registered Will dated 17.09.1997 by conveying absolute rights in favor of
K.Sarojini in respect of item 2 of schedule property and a life interest in favor of
K.Sarojini in respect of items 1, 3 to 5 of schedule property and vested reminder 9 i.e., absolute rights in favor of the plaintiffs 1 to 3. The 4th plaintiff in OS
No.39/2007 joined as party subsequent to the death of K.Sarojini that the said
K.Sarojini during her life time conveyed item NO.2 of schedule property in his favor through a Will dated 10.10.2008. Whereas the defendants 1 to 5 contested the suit in OS 1053/2001 on the file of learned I Addl. Junior Civil Judge,
Rajamahendravaram basing on unregistered Will dated 14.01.2000 said to have been executed in their favor by late K.Mahalakshmi @ Prakasa Rao in respect of schedule properties and also the suit in OS NO.39/2007 that late Sarojini executed unregistered Will dated 14.09.2000 in favor of defendants 1 to 5 in respect of schedule properties. As discussed, as per the decree and Judgment in OS 39/2007, the learned Family cum Addl. District Judge, Rajamahendravaram recognized the registered Will dated 17.09.1997 executed by K.Mahalakshmi @
Prakasa Rao in respect of schedule properties in favor of late K.Sarojini and plaintiffs 1 to 3 and dismissed the claim of plaintiffs 1 to 4 and defendants 1 to 5 herein with regard to their claim basing upon the unregistered Will dated 10.10.2008 said to have been executed by late Sarojini in favor of 4th plaintiff in respect of item 2 of schedule property and unregistered Will dated 14.09.2000 relied upon by the defendants 1 to 5.
12.The 1st plaintiff who is examined as PW1 reiterated her averments in the plaint. In her chief affidavit evidence on oath and by relying upon the Exs.A1 to
A8, the certified copy of earlier litigation in OS No.1053/2001 as well as 39/2007 in respect of schedule properties that was decided against the defendants 1 to 5.
As already discussed, the plaintiffs 1 to 3 title and rights in respect of item Nos.1, 3 to 5 of schedule property declared and recognized in OS 39/2007 by learned
Family cum Addl. District Judge, Rajamahendravaram.
13.The plaintiffs by placing reliance upon Ex.A10 registration extract of registered sale deed dated 07.12.2011 executed by 6th defendant in favor of the 7th defendant and Ex.A11 registration extract of registered rectification deed
dated 12.01.2012 executed by 6th defendant in favor of 7th defendant, Ex.A23
registration extract of registered sale deed dated 24.08.2012 executed by 6th defendant in favor of 8th defendant, Ex.A33 registration extract of registered sale deed dated 30.03.2013 executed by 6th defendant in favor of 7th defendant, Ex.A3 registration extract of sale deed dated 25.11.2013 executed by 7th defendant in favor of 10th defendant in respective of item Nos.1, 4 and 5 of schedule properties contended that the defendants 1 to 5 in order to circumvent the stay orders passed by Hon’ble High Court of AP in ASMP 2175/2011 in AS 652/2011 in repsect 10 of items 1, 3 to 5 of schedule properties got up unregistered Will dated 16.01.2011 in favor of 6th defendant as if late K.Mahalakshmi @ Prakasa Rao executed the said Will in respect of schedule properties in favor of 6th defendant.
The 6th defendant is no other than the wife of 1st defendant and mother of defendants 2 to 5. The plaintiffs further contended that late K.Mahalakshmi @
Prakasa Rao never executed the Will in favor of 6th defendant in respect of schedule properties at any point of time and that the earlier litigation that went on between late K.Sarojini, plaintiffs 1 to 4 and defendants 1 to 5 in OS
Nos.1053/2001 and 39/2007 and subsequently not seen the day of light of the Will said to have been stands in the name of 6th defendant.
14.As seen from the certified copy of the plaint, written statement, decree and
Judgment in respect of earlier suits in OS Nos.1053/2001 and 39/2007, there is no whisper with regard to the Will dated 16.01.2001 said to have been executed by
K.Mahalakshmi @ Prakasa Rao in favor of 6th defendant in respect of schedule properties.
15.The plaintiffs after coming to know about the execution of registered sale deed by 6th defendant in favor of the defendants 7 to 9 in turn to 10th defendant got issued registered legal notice to the defendants as well as the authorities concerned which are exhibited as A12 to A25 and returned postal covers as
Exs.A13 to A17, A26 to A31 and postal acknowledgment Ex.A18.
16.As far as the contention of plaintiffs with regard to the 6th defendant failed to dispel the suspicion rings around Ex.B1 Will as per the statute evidence of 6th defendant plays crucial. The evidence of 6th defendant as DW1 coupled with
Ex.B1 Will dated 16.01.2001 executed by K.Mahalakshmi @ Prakasa Rao failed to disclose as to the reason for late K.Mahalakshmi @ Prakasa Rao conveyed schedule properties in favor of the 6th defendant ignoring his son, daughter and also 5th defendant who is the son of his predeceased second son as well as the registered Will dated 17.09.1997 in favor of his wife K.Sarojini and plaintiffs 1 to 3.
The detailed cross examination of PW1 reveals that even during the life time of
K.Mahalakshmi @ Prakasa Rao and K.Sarojini, the husband of 6th defendant who is the 1st defendant and father of 5th defendant both were employed in a Horlicks
Factory and stayed along with their family at Bommuru. At any point of time, the sons of late K.Mahalakshmi @ Prakasa Rao looked after his welfare during his life time. The 6th defendant except during her evidence neither in her pleading nor in the chief affidavit evidence never stated she is living separately from D1 to D4.
The 6th defendant being the wife of 1st defendant and mother of defendants 2 to 4 11 having aware of the earlier litigation in respect of schedule properties that went on between the plaintiffs, K.Sarojini and the defendants 1 to 5 and also they have not raised in the said litigation with regard to the existence of the Will in favor of 6th defendant bent upon to State as if she is living separately from them and that she is not aware of the earlier litigation and that the defendants 1 to 4 are not aware of the Will that stands in her favor in respect of schedule property. The detailed cross examination of DW1 on these aspects makes the contention of DW1 as false and in order to circumvent the earlier litigation DW1 tried to contend all sorts of defence put forth by her. The attesters of Ex.B1 Will are strangers to the family. One of the attester to Ex.B1 Will who is examined as DW2 though claimed that he was a tenant under K.Mahalakshmi @ Prakasa Rao but no proof filed with regard to the same and further though he claimed that he stood as one of the attester to Ex.B1 Will but his evidence is silent with regard to the other attester signed in Ex.B1 Will in his presence and through testator he came to know that he conveyed property thereunder to D6 and handed over original Will to her at the time of execution of Ex.B1 Will. When DW1 stated that as per Ex.B1 Will her father-in-law K.Mahalakshmi @ Prakasa Rao conveyed schedule properties in favor of his second wife K.Sarojini life interest and vested reminder in her favor but DW2 stated the testator conveyed the schedule property in favor of DW1. The evidence of DW2 is also silent as to the reason for testator conveying the schedule property in terms of Ex.B1 Will by ignoring his son and daughter DW4 who attested the Will in the capacity of a Notary Advocate. Thus, the evidence of
Dws 1, 2, 4 coupled with Ex.B1 Will failed to dispel the suspicious circumstances over Ex.B1 Will. The burden is on the beneficiary i.e., DW1 to dispel the suspicious surrounding circumstances but her evidence and the evidence relied upon by her through Dws 2 and 4 coupled with Ex.B1 in fact strengthens the suspicion over the same. In the circumstances, it gains strength from the contention of the plaintiffs that the defendants 1 to 5 having failed in their earlier attempt regarding right over the schedule properties in the earlier litigation and also aware of the consequences in the appeal preferred by them before Hon’ble
High Court of AP in order to overcome the same, they have started fresh litigation through 6th defendant under the guise of Ex.B1 Will. The 6th defendant who is no other than the wife of 1st defendant and mother of defendants 2 to 4 having aware of the earlier litigation that went on between the defendants 1 to 5 and plaintiffs 1 to 3 in respect of schedule property under the guise of Ex.B1 Will though stay orders are in force as per the directions of Hon’ble High Court of AP bent upon to dispose of some of the schedule properties in favor of defendants 7 and 8 and in 12 turn they have disposed of the same to defendants 9 and 10. It is also clear that though defendants 1 to 5 contested the suit by filing written statement but they have not chosen to cross examine PW1 as well as Dws 1, 2, 4 and 5 and also failed to adduce evidence on their behalf and it speaks volumes about their collusion with 6th defendant. It also strengthens the contention of the plaintiffs that the defendants 1 to 6 are in hand in glove by starting another round of litigation over the schedule properties through 6th defendant as she is not a party in the earlier litigations i.e., in OS Nos.1053/2001 and 39/2007. Though the 6th defendant claimed her right and title over the schedule properties basing upon
Ex.B1 Will but as she failed to dispel the suspicious circumstances over the same as pointed out by the plaintiffs the contention of the 6th defendant over the schedule properties holds no water.
17.The learned counsel for the plaintiffs in support of his contention with regard to the failure on the part of propounder to remove suspicious circumstances, existence of burden over the Will when attesters of the Will are strangers to the family and failure on the part of propounder to discharge the burden by removing all suspicious circumstances over the Will. The learned counsel for the plaintiffs stated the acts of defendants 1 to 6 in the present round of litigation is estopped in view of their contention in the earlier litigation and in support of the same placed reliance upon the decisions reported in “Balathandayutham and
another vs. Ezhilarasan in 2010 (4) ALD 124 SC, Malampati Suryamba
and others vs. Venigalla Koteswaramma and others in Appeal Suits
Nos.1887/1988 and 1433/1989 decided on 20.03.2009 in 2011 (1) ALD
154, Krishna Kumar V.Shah and another vs. Anila J.Shah and others in
2016 (2) ALD 52 DB”.
18.The learned counsel for the plaintiffs stated that the registered Will stands in the name of plaintiffs 1 to 3 was recognized by the Court in earlier litigation that went on between plaintiffs 1 to 3 and defendants 1 to 5 and in the circumstances placed reliance upon the decision reported in “G.Nagasayanam and others vs.
N.Mangathayaramma and others in 2018 (2) ALD 349”. The learned counsel for the plaintiffs with regard to the admissions made by parties during the course of evidence and evidenciary value on those admissions placed reliance upon the decisions reported in “Chikkam Koteswara Rao vs. Chikkam
Subbarao and others in AIR 1971 SC 1542, M.Manoharan Chetti and
others vs. M/s C.Coomaraswamy Naidu and sons in AIR 1980 Madras 212,
Smt. Parameshwari Bai vs. Muthojirao Scindia in AIR 1981 Karnataka 40
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(DB), Ramaji Batanji vs. Manohar Chintaman and others in AIR 1961
Bombay 169”. In view of the fore going discussion, this Court is of the considered view that the defendants 1 to 6 failed to establish Ex.B1 Will and thereby no right conveyed to 6th defendant in respect of schedule properties and
as 6th defendant has no right or title over the schedule properties she has no right
to convey the same to others by way of registered deeds.
19.As far as the item No.2 of plaint schedule properties are concerned, this
Court is aware of the decision over the same passed by learned Family cum Addl.
District Judge’s Court, Rajamahendravaram in OS No.39/2007 and over the same
the appeal and cross objection filed by the parties are pending before the Hon’ble
High Court of AP and as the matter is subsidized, this Court is not inclined to give any Judgment over the same. Accordingly, issues 1 to 5 are decided in favor of the plaintiffs as against the defendants.
ISSUE No.6:-
20.As far as the future profits in respect of schedule property as claimed by the plaintiffs are concerned, as already this Court discussed the litigation in respect of the same is subsidized before Hon’ble High Court of AP, the plaintiffs are at liberty to proceed with regard to the same after outcome of Judgment in the appeal and cross objection before the Hon’ble High Court of AP.
Additional Issue Nos.1 and 2 dated 18.04.2019:-
21.The 9th defendant except contending that he is bona fide purchaser and his evidence as DW6 in view of the discussion by this Court in the record issues, this
Court strengthens to hold that the 9th defendant will not come under the purview of a bona fide purchaser and the suit filed by the plaintiffs against the 9th defendant is well within the time. The additional issues 1 and 2 are accordingly decided in favor of the plaintiffs 1 to 3 as against the 9th defendant.
ISSUE No.7 and Additional Issue No.3:-
22.In the result, this suit is partly decreed in favor of the plaintiffs 1 to 3 as against the defendants by declaring the plaintiffs 1 to 3 are having right and title over the items 1, 3 to 5 of plaint schedule properties and partly dismissed in respect of item No.2 of plaint schedule properties. As far as the recovery of possession of item Nos.1, 3 to 5 of plaint schedule properties by plaintiffs 1 to 3 are concerned it depends upon the outcome of the result of appeal in AS
No.652/2011 filed by the defendants 1 to 5 before the Hon’ble High Court of AP.
14
In view of the relationship prevailing between the plaintiffs 1 to 3 and the defendants 1 to 6, the parties do bear their own costs.
Dictated to the stenographer, corrected and pronounced by me in Open Court, this
the 10th day of February, 2022
Sd/-P.R,Rajeev,
VIII Addl. District and Sessions Court cum Spl. court for trial of offences of against women, (FAC) V Addl. District and Sessions Judge, E.G. District, Rajamahendravaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:-FOR DEFENDANTS:-
P.W.1 : Thaninki Marry Virginia KumariD.W.1: Kondeti Sakkubai D.W.2: Kollipara Prabhakara Rao D.W.3: Wara Lakshmana Rao D.W.4: Allamki Raghu Ram D.W.5: Sri Srinivasa Rao D.W.6: Polavarapu Shyam.
EXHIBITS MARKED
FOR PLAINTIFFS:-
Ex.A1: Certified copy of the plaint dated 24.09.2001 in OS No.1053/2001 on the file of learned I Addl. Junior Civil Judge, Rajamahendravaram.
Ex.A2: Certified copy of the written statement dated 08.10.2001 filed by the defendants 1 and 2 in OS 1053/2001 on the file of I Add. Junior Civil Judge,
Rajamahendravaram.
Ex.A3: Certified copy of the written statement dated 08.10.2001 filed by the defendants 3 to 11 in OS 1053/2001 on the file of I Add. Junior civil Judge,
Rajamahendravaram.
Ex.A4: Certified copy of the Judgment dated 22.02.2007 in OS 1053/2001 on the file of I Addl. Junior Civil Judge, Rajamahendravaram.
Ex.A5: Certified copy of the decree dated 22.02.2007 in OS 1053/2001 on the file of I Addl. Junior Civil Judge, Rajamahendravaram.
Ex.A6: Certified copy of the decree dated 05.09.2011 in OS No.39/2007 on the file of Family cum Addl. District Judge, East Godavari, Rajamahendravaram.
Ex.A7: Certified copy of the plaint dated 30.04.2007 in OS No.39/2007 on the file of Judge, Family Court cum Addl. District Judge, Rajamahendravaram.
Ex.A8: Certified copy of written statement dated 05.12.2007 filed by defendants 1 to 4 in OS 39/2007 on the file of Family cum Addl. District Judge, East
Godavari, Rajamahendravaram.
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Ex.A9: Served copy of the stay order dated 12.10.2011 granted by Hon’ble High
Court of AP in ASMP No.2175/2011 in AS No.652/2011.
Ex.A10: Registration extract of Doc. No.5443/2011 of the Office of SRO,
Pidimgoyyi – registered sale deed dated 07.12.2011 executed by the 6th defendant in favor of the 7th defendant.
Ex.A11: Registration extract of Doc. No.228/2012 of the office of SRO, Pidimgoyyi – registered rectification deed dated 12.01.2012 executed by the 6th defendant in favor of the 7th defendant.
Ex.A12: Office copy of the registered notice dated 03.08.2012 got issued by the plaintiffs to the defendants 1 to 4, 6 and 7 along with postal receipts.
Ex.A13: Returned postal cover from the 1st defendant.
Ex.A14: Returned postal cover from the 2nd defendant.
Ex.A15: Returned postal cover from the 3rd defendant.
Ex.A16: Returned postal cover from the 4th defendant.
Ex.A17: Returned postal cover from the 6th defendant.
Ex.A18: Postal acknowledgment dated 09.08.2012.
Ex.A19: Office copy of the registered notice dated 19.08.2012 got issued by the plaintiffs to the Secretary, Gram Panchayat, Pidimgoyyi along with postal receipt.
Ex.A20: Office copy of the letter dated 29.08.2012 addressed by the Advocate for the plaintiffs to the Superintendent of Post Offices, Rajamahendravaram regarding non-receipt of postal acknowledgment for Doc.No.19 above.
Ex.A21: Letter dated 03.09.2012 addressed by Superintendent of Post offices,
Rajamahendravaram acknowledging the complaint.
Ex.A22: Letter dated 06.09.2012 addressed by the Superintendent Of Post Offices,
Rajamahendravaram intimating the delivery of doc. No.19 above.
Ex.A23: Registration extract of Doc. No.4978/2012 of the Office of SRO,
Pidimgoyyi registered sale deed dated 24.08.2012 executed by 6th defendant in favor of the 8th defendant.
Ex.A24: Paper publication dated 13.06.2012 published by the plaintiffs in Eenadu
Telugu Daily, East Godavari District Edition along with the bill.
Ex.A25: Office copy of the registered notice dated 18.02.2013 got issued by the plaintiffs to the defendants 1 to 4, 6 and 8 along with postal receipts.
Ex.A26: Returned postal cover from the 1st defendant.
Ex.A27: Returned postal cover from the 2nd defendant.
Ex.A28: Returned postal cover from the 3rd defendant.
Ex.A29: Returned postal cover from the 4th defendant.
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Ex.A30: Returned postal cover from the 6th defendant.
Ex.A31: Returned postal cover from the 8th defendant.
Ex.A32: Served copy of the orders dated 22.01.2013 passed by Hon’ble High
Court of AP in ASMP No.2219/2012 in AS 652/2011 granting injunction against the defendants 1 to 4.
Ex.A33: Registration extract of doc. No.2290/2013 of the Office of SRO, Pidimgoyyi – Registered sale deed dated 30.03.2013 executed by the 6th defendant in favor of 9th respondent (proposed 9th defendant) in respect of item No.4 of plaint schedule.
Ex.A34: Registration extract of doc. No.7877/2013 of the office of District
Registrar, Rajamahendravaram – Registered sale deed dated 25.11.2013 executed by the 7th defendant in favor of the 10th respondent (proposed 10th defendant) in respect of item No.1 of the plaint schedule.
FOR DEFENDANTS:-
Ex.B1: Will dated 16.01.2001 executed by Kondeti Mahalakshmi @ Prakasa Rao in favor of DW1.
Sd/- P.R.Rajeev,
VIII ADJ
(FAC) V ADJ.
17
IN THE COURT OF VIII ADDL. DISTRICT & SESSIONS JUDGE CUM SPL.
COURT FOR TRIAL OF OFFENCES AGAINST WOMEN :: EAST GODAVARI
DISTRICT: RAJAMAHENDRAVARAM
Present: Sri P.R. Rajeev, VIII Addl. District and Sessions Judge cum Spl. Judge for Trial of Offences against Women, Rajamahendravaram. Tuesday, the th day of January, 2022
O.S. No.190/2018
Between:
Sathi Venkata Rama Reddy, S/o Veera Raghava Reddy, A/33 years, D.No.11-3- 11, Church Compound, Ramachandrapuram Town and Mandal, Ramachandrapuram JCJ, East Godavari District – 533 255. … Plaintiff
And
Pothamsetti Venkata Reddy, S/o Veera Venkata Satyanarayana Reddy, A/43 years, Opp. Srinivasa Rice Mill, Behind State Bank of India ATM, Pasalapudi Village, Rayavaram Mandal, Anaparthi JCJC, East Godavari District – 533 261. … Defendant
This suit is presented on 09.11.2018 and filed on 09.11.2018
This suit is filed by the plaintiff for declaration of plaintiff’s right over the plaint schedule property, for a consequential relief of permanent injunction against the defendant, his men and agents and privies either from interfering and obstructing with the plaint schedule property and to award costs and other reliefs.
Value of the suit:-
1)The suit is valued for the purpose of Court Fee and Jurisdiction for the relief of declaration of plaintiff’s right for plaint schedule property is Rs.1,24,38,800/-.
2)½ of the market value amounts to Rs.62,19,400/-. Under Sec.24(b) of APCF and SV Act, a Court fee of Rs.64,626/- is paid under Sec.24, Sch.I, Art.I (b)(c) of the said Act is paid thereon under Sec.24(b) of APCF and SV Act.
3)The plaintiff’s value the relief of consequential permanent injunction is valued at Rs.50,000/- under Sec.26 of APCF and SV Act and a Court fee of Rs.2,386/- is paid under Sec.20, Sch.I, Art.I (b)(c) of the Act. Total value of suit = Rs.62,19,400/- + Rs.50,000/- = Rs.62,69,400/-. Total court fee paid is Rs.67,012/-. The above Court fee amount of Rs.67,012/- is deposited in lieu of Court fee stamps to the credit of the Hon’ble District Judge, Rajamahendravaram Court’s SBI Account with A/c No.35593987249 Pushkarghat Branch, Rajamahendravaram.
Cause of action for this suit arose on 09.07.2008 when the plaintiff maternal grandfather executed settlement deed in favor of the plaintiff and deliver the possession of the plaint schedule property and on 10.10.2011 when the plaintiff filed a caveat petition as Caveat OP No.38/2011 on the file of Hon’ble Senior Civil Judge’s Court, Ramachandrapuram against the defendant and Pothamsetti Venkata Reddy, S/o Venkanna who is maternal grandfather of the plaintiff and on 01.11.2011 the defendant got issued a registered legal notice to the plaintiff with false allegations and on 03.11.2011 when the plaintiff came to know that the maternal grandfather executed settlement deed in favor of the defendant and on 18.06.2007 when 18 the plaintiff maternal grandfather executed revocation of settlement deed for settlement deed of the defendant and on 05.11.2011 the plaintiff got issued registered reply notice through his counsel to the defendant as well as his counsel received the registered reply notice of the plaintiff counsel and on 18.08.2014 when the plaintiff maternal grandfather Pothamsetti Venkata Reddy S/o Venkanna died and recently the defendant proclaimed in the Pasalapudi Village and the Ramachandrapuram Town that the defendant paternal grandfather executed the plaint schedule property to his favor and the defendant proclaimed and tries to dispose the plaintiff from the plaint schedule property and in the month of August 2018 when he came to know that his maternal grandfather executed revocation of registered settlement deed on 10.10.2011 against the plaintiff illegally, and the plaint schedule property is in Ramachandrapuram Town and are within the jurisdiction of this
Hon’ble Court.
This suit come up for final hearing on 06.12.2021 before me in the presence of Sri D.S.Gupta, advocate for the plaintiff and Sri KVSS Prabhakar Rao, advocate for the defendant, and upon perusing the material on record and having stood stood over for consideration till this day, this court doth order and decree as follows:
(1)that the petition be and the same is hereby decreed by declaring the plaintiff right and title over the plaint schedule property; (2)that the consequential relief of permanent injunction in favor of the plaintiff as against the defendant by restraining the defendant and his men and others from ever interfering with the plaintiff’s possession and enjoyment; (3)that the parties do bear their own costs.
Copy of plaint schedule and plaint plan are attached.
Given under my hand and seal of this court, this the 4th day of January, 2022
VIII Addl. District and Sessions Court cum Spl. court for trial of offences of against women, (FAC) V Addl. District and Sessions Judge, E.G. District, Rajamahendravaram.
PARTICULARS OF COSTS
FOR PETITIONER:-FOR RESPONDENT:-
Vakalath:2.00 Plaint Fee:67,012.00 Petition stamp:10.00 No memo of costs filed. Process Fee:200.00 Commissioner Fee:5,000.00 Advocate Fee:37,784.00 Typing charges:200.00 Total costs taxed Rs.:1,10,208.00
VIII ADJ
(FAC) V ADJ.