I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 1 Tenaliand OS.No.50/2018, dated. 27.12.2024.
IN THE COURT OF I ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)
TENALI
PRESENT: PALLAGANI RAJASEKHAR,
II ADDL CIVIL JUDGE (JUNIOR DIVISION), TENALI
FAC/I ADDL CIVIL JUDGE (JUNIOR DIVISION), TENALI.
FRIDAY, THIS THE 27 TH DAY OF DECEMBER, 2024
O.S.NO.392/2017 AND OS.NO.50/2018
OS.NO.392/2017:
Between:
Peram Siva Sankar Rao, S/o.Late China Veeraiah, aged about 68 years, Properties, R/o.Nandivelugu Village, Tenali Mandal, Guntur District. … Plaintiff AND
Peram Mohana Veeranjeneyulu, S/o.Late China Veeraiah, aged about 58 years, Business, R/o.D.No.8-115, Nandivelugu Village, Tenali Mandal, Guntur District. … Defendant
********
OS.NO.50/2018:
Between:
Talluri Lakshmi Prasanna Alias Lakshmi Deepti, W/o.Tulluri Bhaskar, Hindu, aged about 36 years, Housewife, R/o.Nehru Nagar, Buchataiahthota, Tenali Mandal. … Plaintiff AND
1.Peram Siva Sankar Rao, S/o.Late China Veeraiah, aged about 68 years, Properties, R/o. Nandivelugu Village, Tenali Mandal, Guntur District.
2.Peram Mohana Veeranjeneyulu, S/o.Late China Veeraiah, aged about 60 years, Cultivation, R/o. D.No.8-115, Nandivelugu Village, Tenali Mandal, Guntur District. … Defendants
These suits are coming on this day before me for for final hearing on 21.11.2024 in the presence of Sri P.Ravindra Babu, Advocate for plaintiff in O.S.No.392/2017 and 1st defendant in O.S.No.50/2018 and of Sri Ch.Venkateswara Rao, Advocate for defendant in O.S.No.392/2017 and plaintiff in O.S.No.50/2018, 2nd defendant in O.S.No.50/2018 remained exparte, upon hearing both sides, upon perusing entire material available on record and having stood for consideration to this day, this court delivered the following:-
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 2 Tenaliand OS.No.50/2018, dated. 27.12.2024.
:: COMMON JUDGMENT ::
1. The suit in OS.NO.392/2017 is filed by the plaintiff viz Peram
Siva Sankara Rao against the defendant viz Peram Mohana
Veeranjaneyulu who is his younger brother requesting the court for partition of the plaint schedule property into two equal shares and allot one such share to the plaintiff with separate metes and bounds, for future profits from the date of filing of the suit till the date of possession and for costs of the suit.
2. The suit in OS.No.50/2018 is filed by the plaintiff Tulluru
Lakshmi Prasanna Alias Lakshmi Deepthi against the defendants 1 and 2 viz Peram Siva Sankara Rao, who is her senior paternal uncle and Peram
Mohana Veeranjeneyulu who is her father requesting the court to declare her as absolute owner of the plaint schedule property and for consequential relief of permanent injunction restraining the defendants and their men from in any way interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule property and for costs of the suit.
3. The plaint schedule property in OS.No.392/2017 and in
OS.No.50/2018 is one and the same, it is extracted hereunder.
The plaint schedule mentioned in OS.NO.392/2017 as follows:-
Guntur District, Tenali Registration District, Duggirala Sub
District, Nandivelugu Grama Survey No.47/A2, an extent of Ac.0.02 cents of vacant house site is bounded by
East: Peram Venkata Rayadu’s site.
South: R & B road margin.
West: Joint Nadava belongs to Peram Siva Sankara Rao and
Mohana Veeranjeneyulu.
North: Panchayat Donka.
Within these boundaries an extent of Ac.0.02 cents of vacant site equivalent to 80.94 sq. meters.
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 3 Tenaliand OS.No.50/2018, dated. 27.12.2024.
The plaint schedule mentioned in OS.No.50/2018 as follows:-
Guntur District, Duggirala Sub District, Nandivelugu Village,
D.No.47/A2, out of Ac.0.10 cents an extent of Ac.0.02 cents of house site along with dilapidated roofless walls in Door No.8/116, within the following boundaries;
East : Peram Venkata Rayudu’s grand son Peram Narendra suit site.
South : Nandivelugu to Kollipara Road.
West : Private Gally.
North : Panchayat Road.
4. The averments in the plaint in OS.No.392/2017, in brief, as follows:
The plaintiff and defendant are the natural brothers and children of Peram China Veeraiah and Jaya Lakshmi. The plaint schedule property was gifted to the Jaya Lakshmi by her husband Chinna Veeraiah on 25.05.1974. Ever since the date of gift deed, the said Jaya Lakshmi had enjoyed the plaint schedule property till her death. The said Jaya Lakshmi died on 01.04.2006 intestate leaving behind her, her two sons i.e., the plaintiff and defendant. The estate of the deceased Jaya Lakshmi devolved upon the defendant and plaintiff i.e., the plaint schedule property. Except the plaint schedule property, the said Jaya Lakshmi has no other properties. The defendant and plaintiff are having equal shares in the plaint schedule property as per Hindu Succession Act. The plaint schedule property is joint and constructive possession of the defendant and the plaintiff. The plaintiff requested the defendant to cooperate for partition of the plaint schedule property. Vexed with the conduct of the defendant, the plaintiff got issued legal notice through his advocate to the defendant demanding him to come forward for partition of the plaint schedule property. The defendant received the notice, neither give the reply nor come forward for partition of the plaint schedule property. Hence, the plaintiff is constrained to file the suit for partition of the plaint schedule
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 4 Tenaliand OS.No.50/2018, dated. 27.12.2024.
property into two equal shares and allot one such equal share to the plaintiff and deliver the possession with separate metes and bounds and other reliefs. Hence, the suit.
5. The defendant in OS.No.392/2017 filed his written statement by denying all the material averments made in the plaint and contending inter alia that on 24.04.1989 the said Peram Jaya Lakhsmi who is the mother of the plaintiff and defendant bequeathed the plaint schedule property along with another extent of Ac.1.00 cents of land of
Chintalapudi Village under a registered Will bearing document No.21/1989 of SRO, Duggirala in a sound and disposing state of mind in favour of his daughter Lakshmi Deepthi alia Tulluri Lakshmi Prasanna. Subsequently, the said Peram Jaya Lakshmi sold Ac.1.00 cents of land during her life time in the year 2005 and subsequently, on 2.4.2006 the said Pera Jaya
Lakshmi died. The bill bearing document No.21/1989 dt.24.04.1989 is the lost testament of the said Peram Jaya Lakhsmi. After the death of Peram
Jaya Lakhsmi the daughter of the defendant Lakshmi Deepti alia Tullri
Lakshmi Prasanna became the absolute owner of the plaint schedule property and took possession of the same with absolute rights. The plaint schedule property is in possession of said Lakshmi Deepthi with absolute rights. The plaintiff is aware of the execution of Will bearing No.21/1989 dt.24.04.1989. The original of the said Will bearing document No.21/1989 is in the custody of the plaintiff. Neither the plaintiff nor the defendant is having any right, title and possession in respect of the plaint schedule property. The plaintiff is not entitled to ask for partition of the plaint schedule property and thereby prayed to dismiss the suit with costs.
6. Basing on the above pleadings, the following issues have been settled for trial in OS.No.392/2017:-
1.Whether the plaint schedule property is bequeathed to the defendant’s daughter under a testament executed by the deceased Peram Jaya Lakshmi as contended by the defendant?
2.Whether the plaintiff is entitled for a decree of partition against the defendant as prayed for?
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 5 Tenaliand OS.No.50/2018, dated. 27.12.2024.
3.Whether the plaintiff is entitled future mean profits over the share of the plaintiff in the plaint schedule property from the date of filing of the suit till the date of possession of his share as prayed for?
4.To what relief?
7. The averments of the plaint in OS.No.50/2018, in brief, as follows:-
(a)The defendants 1 and 2 are the sons of Peram Jaya Lakshmi and Peram China Veeraiah. Plaintiff is the daughter of 2nd defendant and grand daughter of Peram Jaya Lakhsmi and Peram China Veeraiah.
Originally the plaint schedule site belonged to paternal grand father of the plaintiff viz Sri Peram China Veeraiah. On 25.05.1974 the said Peram
China Veeraiah gifted the plaint schedule site along with thatched cattle house to his wife Peram Jaya Lakshmi out of love and affection under registered gift deed bearing document No.1443/1974 of SRO, Duggirala.
The said China Veeraiah gifted the schedule property to his wife with absolute rights and delivered possession to her. The said Peram Jaya
Lakshmi accepted the gift and took possession of the plaint schedule site along with house therein with absolute rights.
(b)On 24.04.1989 the said Peram Jaya Lakshmi who is paternal grand mother of the plaintiff bequeathed the plaint schedule property along with another extent of Ac.1.00 cents of land of Chintalapudi Village under a registered Will bearing document No.21/1989 of SRO, Duggirala in a sound and disposing state of mind. Subsequently, the said Peram Jaya
Lakhsmi sold Ac.1.00 of land during her life time in the year 2005 and subsequently, on 02.04.2006 the said Peram Jaya Lakshmi died. The Will bearing document No.21/1989 dt.24.04.1989 is the last testament of the said peram Jaya Lakshmi. After the death of Peram Jaya Lakshmi, the plaintiff became the absolute owner of the plaint schedule property and took possession of the same with absolute rights. The plaint schedule property is in possession of the same with absolute rights.
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 6 Tenaliand OS.No.50/2018, dated. 27.12.2024.
(c) The original Will bearing document No.21/1989 dt.24.04.1989 executed by Peram Jaya Lakshmi is in the custody of 1st defendant.
Recently, the plaintiff obtained the certified copy of the Will bearing document No.21/1989 dt.24.04.1989 from SRO, Duggirala through 2nd defendant. The plaintiff came to know that the defendants 1 and 2 is making efforts to create some documents in between them in respect of the plaint schedule property by suppressing the contents in the above said Will and trying to grab the plaint schedule property. The plaintiff is the absolute owner having title and possession in respect of plaint schedule property.
(d)The plaintiff got issued a legal notice on 04.12.2017 through her Advocate to the defendants 1 and 2 calling upon them not to create any documents in respect of plaint schedule property. For that, the defendants 1 and 2 received the notice. The 2nd defendant received the notice and did not give any reply and kept quiet. The 1st defendant gave reply on 15.12.2017 to the Advocate of the plaintiff with false averments.
(e)The averments of reply notice of 1st defendant that mother of the defendants 1 and 2 Peram Jaya Lakshmi did not execute any Will in favour of the plaintiff or anybody on 24.04.1989 or any other date and that the original Will is in the custody of the defendants and that this is a separate story created by plaintiff and her father i.e., 2nd defendant and that the mother of the defendants never executed Will and after her death the said Will did not commit force and that plaintiff is not at all absolute owner of the plaint schedule property and that plaintiff is no way concerned with the plaint schedule property and that on 28.10.2017 the 1st defendant got issued a legal notice through his Advocate to the 2nd defendant who is no other than the father of the plaintiff for partition of the plaint schedule property into two equal shares and the father of the plaintiff i.e., 2nd defendant received the notice on 30.10.2017 and neither gave reply nor come forward for partition of plaint schedule property and that thereafter, the 1st defendant filed suit on 21.11.2017 against the 2nd defendant for partition of the plaint schedule property and that the same
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 7 Tenaliand OS.No.50/2018, dated. 27.12.2024.
fact was known to him very well and 2nd defendant and plaintiff colluded together and got issued notice with false allegations and that the mother of the defendants by name Peram Jaya Lakshmi died intestate on 01.04.2006 leaving behind her, her legal heirs i.e., defendants 1 and 2 and thus, the 1st defendant has no need to create any documents in respect of the plaint schedule property and plaintiff and 2nd defendant never disclosed about the alleged Will either to the 1st defendant or anybody in the village and relatives are all false.
(f) As per the contentions of the reply notice of the 1st defendant that he filed the suit on 27.11.2017 against the 2nd defendant for partition of the plaint schedule property. In fact, the 1st defendant has no right to seek for partition of the plaint schedule property. The 1st defendant intentionally might have filed the suit without impleading the plaintiff in the said suit with a malafide intention to grab the plaint schedule property in collusion with the 2nd defendant. The 1st defendant has no locus standi to file the said suit. The plaint schedule property is the absolute property of the plaintiff. The plaintiff has got right, title and possession in respect of plaint schedule property. As per the averments of the reply notice of the 1st defendant, there is a cloud on the tile of the plaintiff in respect of the plaint schedule property. The 1st defendant taking advantage of the plaintiff being a woman making all sorts of efforts to take possession of plaint schedule property by force. The plaintiff with a great difficulty preventing the 1st defendant from entering into the plaint schedule land.
Hence, the plaintiff is constrained to file a suit to declare that plaintiff is the absolute owner of the plaint schedule property and consequential permanent injunction restraining the defendant, their men from in any way interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property and for other reliefs. Hence, the suit.
8. The 1st defendant in O.S.No.50/2018 filed his written statement by denying all the material averments made in the plaint and contended inter alia that mother of the defendants by name Peram Jaya
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 8 Tenaliand OS.No.50/2018, dated. 27.12.2024.
Lakshmi did not execute any will in favour of the plaintiff or anybody on 24.04.1989 or any other date. It is ridiculous to say that the original Will is in the custody of the 1st defendant. This is a separate story created by the plaintiff and her father. The mother of the 1st defendant Peram Jaya
Lakshmi never executed any Will and after her death, the said Will did not came into force and the plaintiff is not at all the absolute owner of the plaint schedule property. The plaintiff is no way concerned with the plaint schedule property. ON 28.08.2017 he got issued a legal notice through his
Advocate to the 2nd defendant who is no other than the father of the plaintiff for partition of plaint schedule property into two equal shares. The father of the plaintiff received the said notice on 30.10.2017 and neither gave the reply nor come forward for partition of the plaint schedule property. Thereafter the 1st defendant filed the suit on 27.11.2017 against the father of the plaintiff i.e., 2nd defendant herein for partition of plaint schedule property. The same fact was known to him very well. The father of the plaintiff i.e., 2nd defendant and plaintiff colluded together and got issued the notice with false allegations. The mother of the 1st defendant by name Peram Jaya Lakshmi died on 01.04.2006 intestate leaving behind her, her legal heirs i.e., defendants 1 and 2. Thus, the 1st defendant has no need to create any documents in respect of the plaint schedule property. The plaintiff and her father i.e., 2nd defendant never discloses about the alleged Will either to the 1st defendant or anybody in the village and relatives. The plaintiff is not in possession of plaint schedule property and plaintiff has no title or right or interest over the plaint schedule property and thereby prayed to dismiss the suit with costs.
9. The 2nddefendant remained exparte in the suit in
OS.No.50/2018.
10.Basing on the above pleadings, the following issues have been settled for trial in OS.No.50/2018:-
1. Whether the plaintiff is entitled for decree of declaration against the defendants as prayed for?
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 9 Tenaliand OS.No.50/2018, dated. 27.12.2024.
2. Whether the plaintiff is entitled for consequential relief of permanent injunction against the defendants as prayed for?
3. To what relief?
11.As can be seen from the docket proceedings dt.06.01.2021 in OS.No.392/2017, the suit in OS.No.50/2018 is clubbed with the suit in OS.No.392/2017, to record common evidence in this suit i.e., in OS.No.392/2017 as the leading suit is OS.No.392/2017.
12.During the course of trial, on behalf of the plaintiff in
O.S.No.392/2017 who is the 1st defendant in O.S.No.50/2018, the plaintiff
in O.S.No.392/2017 himself was examined as PW.1 and Exs.A.1 to A.3 were marked through him. On behalf of the defendant in
O.S.No.392/2017, he himself was examined as DW.1 and no documents
were marked. One Addanki Nava Kumar who is the Sub-Registrar,
Duggirala is examined as CW.1 and Exs.X.1 and X.2 were marked. On behalf of the plaintiff in O.S.No.50/2018, she herself was examined as
PW.1 and Exs.A.1 to A.11 were marked through her. On behalf of plaintiff in O.S.No.50/2018, one Kanugolu Suresh was examined as PW.2.
13.ISSUE NO.1 IN OS.NO.392/2017 AND ISSUE NOs.1
AND 2 IN OS.NO.50/2018:-
The plaintiff and defendant in O.S.No.392/2017 are own brothers.
The plaintiff in O.S.No.50/2018 is the daughter of the defendant in
O.S.No.392/2017, who is 2nd defendant in O.S.No.50/2018. Admittedly, one
Peram China Veeraiah and Peram Jaya Lakshmi are the parents of plaintiff and defendant in O.S.No.392/2017, who are defendants in
O.S.No.50/2018. Admittedly, plaintiff in O.S.No.392/2017, who is the 1st
defendant in O.S.No.50/2018 is the senior paternal uncle of the plaintiff in
O.S.No.50/2018. Admittedly, plaintiff in O.S.No.50/2018 is the grand
daughter of Peram China Veeraiah and Peram Jaya Lakshmi. Originally, the plaint schedule property is belonged to Peram China Veeraiah.
Admittedly, the said Peram China Veeraiah gifted the plaint schedule property to his wife Peram China Veeraiah on 25.05.1974. These are the
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 10 Tenaliand OS.No.50/2018, dated. 27.12.2024.
admitted facts and there is no dispute about the said admitted facts.
14.Ex.A.1 in OS.No.392/2017 and Ex.A.1 marked in
O.S.No.50/2018 is one and the same document which is certified copy of
gift deed dated.25.05.1974 executed by Peram China Veeraiah in favour of his wife Peram Jayalakshmi. PW.1 in OS.No.392/2017 in his chief- evidence affidavit re-iterated entire averments of the plaint. During cross- examination, PW.1 in OS.No.392/2017 admitted that his father purchased
Ac.0.02 ¾ cents of site from one Tiruveedula Janakiravamma under a registered sale deed dt.01.06.1968. He admitted that on the western side of the above said Ac.0.02 ¾ cents, his father had got his property. He admitted that his father executed Ex.A.1 gift deed in favour of his mother
Jaya Lakshmi gifting an extent of Ac.0.02 cents in the above said Ac.0.02 ¾ cents site and Ac.0.92 cents of wet land by leaving ¾ cent for the purpose of passage between his father’s site and plaint schedule property. He admitted that his mother took possession of the plaint schedule property along with other Ac.0.92 cents of wet land of
Chintalapudi Village given to her under Ex.A.1 registered gift deed. He admitted that his mother has also got Ac.1.15 cents of wet land in
Chintalapudi Village. He admitted that the above said three properties are absolute properties of his mother. He admitted that by the date of death of his mother, she has got only Ac.0.02 cents of house site i.e., plaint schedule property. D.W.1 in O.S.No.392/2017 in his chief-evidence affidavit re-iterated enter avements of his written statement. During cross-examination, the defendant in O.S.No.392/2017 as DW.1 admitted that originally the plaint schedule property belongs to his father China
Veeraiah. He admitted that on 25.05.1974 his father gifted the plaint schedule property in favour of his mother by way of registered gift deed.
PW.1 in OS.No.50/2018 in her chief-evidence affidavit re-iterated entire plaint averments in O.S.No.50/2018. PW.1 in O.S.No.50/2018 in her cross- examination admitted that Ex.A.1 in O.S.No.50/2018 which is equivalent to Ex.A.1 in O.S.No.392/2017 was executed by her paternal grand father in favour of his wife Jayalakshmi by mentioning specific boundaries.
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 11 Tenaliand OS.No.50/2018, dated. 27.12.2024.
15.Perused Ex.A.1 in OS.No.392/2017 which is equivalent to Ex.A.1 in O.S.No.50.2018 which is gift deed dated.25.05.1974 executed by Peram China Veeraiah in favour of Peram Jayalakshmi. As can be seen from Ex.A.1 one Peram China Veeraiah who is father of the plaintiff, defendant in O.S.No.392/2027 who are defendants in O.S.No.50/2018, who is the paternal grand father of plaintiff in O.S.No.50/2018 in favour of his wife Peram Jayalakshmi, who is mother of the plaintiff, defendant in
O.S.No.392/2027 who are defendants in O.S.No.50/2018, who is the
paternal grand mother of plaintiff in O.S.No.50/2018 in respect of plaint schedule property and other property in favour of Peram Jayalakshmi. In view of evidence of PW.1, D.W.1 in O.S.No.392/2017 and plaintiff in
O.S.No.50/2018, there is no dispute about execution of gift deed dated.
25.05.1974 executed by Peram China Veeraiah in favour of his wife Peram
Jayalakshmi in respect of plaint schedule property and other property to an extent of Ac.0.92 ½ cents.
16.Ex.A.3 in O.S.No.50/2018 is the computer generated death certificate of Peram Jayalakshmi dated.98.12.2017 issued by
Registrar of Birth and Death, Gram Panchayat, Nandivelugu. As can be seen from Ex.A.3, the said Peram Jayalakshmi died on 02.04.2006. There is no dispute between the both parties in both the suites about the death of Peram Jayalakshmi on 02.04.2006 as per Ex.A.3 death certificate.
17. According to the plaintiff, his mother died intestate, whereas according to the defendant, his mother died on 02.04.2006 testate and his mother during his life time on 24.04.1989 bequeathed the plaint schedule property along with another extent of Ac.1-00 cents of
Chintalapudi Village under a registered will dated.24.04.1989 bearing document No.21/1989 of SRO, Duggirala in a sound and disposing state of mind in favour of his daughter, who is the plaintiff in O.S.No.50/2018 viz.,
Lakshmi Deepthi @ Tulluru Lakshmi Prasanna and after the death of his mother, the said will came into force.
18. Ex.A.2 in OS.No.50/2018 is the certified copy of will dated.24.04.1989 bearing document No.21/1989 of SRO, Duggirala
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 12 Tenaliand OS.No.50/2018, dated. 27.12.2024.
executed by Peram Jaayalakshmi in favour of the plaintiff in
O.S.No.50/2018. Now, it has to be seen whether the defendant in
O.S.No.392/2017 and the plaintiff in O.S.No.50/2018 proved the will
dt.24.04.1989?
19.Learned counsel appearing for plaintiff in
O.S.No.392/2017 who is 1st defendant in O.S.No.50/2018 would submit
that his mother Peram Jayalakshmi did not execute any will in favour of the plaintiff in O.S.No.50/2018 or anybody on 24..04.1989 or any other date. He would submit that it is ridiculous to say that original will is in the custody of the plaintiff in O.S.No.392/2017. He would submit that after filing of the partition suit by the plaintiff in O.S.No.392/2017 against defendant who is the father of the plaintiff in O.S.No.50/2018, she i.e., plaintiff in O.S.No.50/2018 along with her father colluded together and created story as if Peram Jayalakshmi executed original of Ex.A.2 will in favour of plaintiff in O.S.No.50/2018. He would submit that plaintiff in
O.S.No.392/207 got issued legal notice under Ex.A.2 to the defendant on
28.10.2017 for partition of the plaint schedule property into two equal shares, the defendant received the said notice under Ex.A.3 acknowledgment on 30.10.2017, but he neither gave any reply nor come forward for partition of plaint schedule property. He would submit that if really there was existence of the will dated.24.04.1989 as alleged by the defendant in in his written statement, what prevented the defendant in
O.S.No.392/2017 to issue repay legal notice to the plaintiff in
O.S.No.392/2017 by mentioning all the facts as narrated in the written
statement and hence, the will dated.24.04.1989 is created one. He would submit that the defendant in O.S.No.392/2017 never disclosed about the alleged will to the plaintiff or anybody in the village and relatives. He would submit that the recitals of will dated.23.04.1989 do not reflect the boundaries with survey number and extent as mentioned in the plaint schedule in O.S.No.50/2018 and it was also not disclosed about the property where it was situated. He would submit that the recitals in the
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 13 Tenaliand OS.No.50/2018, dated. 27.12.2024.
will do not disclose how the said Peram Jayalakshmi got the property and there was also no mention that the profounder of the will viz., Tulluri
Lakshmi Prasanna @ Lakhmi Deepthi was represented by guardian. He would submit that in order to prove the execution of will dated.24.04.1989, the plaintiff in O.S.No.50/2018 relied on the evidence of one Kanugolu Suresh who is the son-in-law of one Burma Sambasivarao who is one of the attesting witnesses of the will dated.24.04.1989 and on scrutiny of his evidence, it is unsafe to act upon his evidence. He would submit that the alleged document dated.24.04.1989 is not a will according to law. He would submit that the factors such as awareness of the testator as to the content as well as the consequences, nature and effect of dispositions in the will, sound, certain and disposing state of mind and memory of the testator at the time of alleged execution, testator executed the will while acting on his own free will and hence, the alleged document dated.24.04.1989 is not a will according to law and in support of his contention, he relied on the decision of Hon’ble High
Court of A.P., at Amaravathi reported in 2024 (5) ALT 571 (AP) in
the case of Allamraju Srinivasa Murthy Vs. Allamraju Syamala
Murthy. He would submit that plaintiff in O.S.No.50/2018 did not file any documentary proof to show that she has been in possession and enjoyment of the plaint schedule property subsequently after the death of the testatrix viz., Peram Jayalakshmi. He would submit that there are several suspicious circumstances surrounding the will dated.24.04.1989 and the defendant in O.S.No.392/2017 and his daughter who is the plaintiff in O.S.No.50/2018 failed to remove the suspicious circumstances surrounding the will. He would submit that the alleged will dated.24.04.1989 is not all proved by the plaintiff in O.S.No.50/2018.
20.Learned counsel appearing for defendant in
O.S.No.392/2017 and the plaintiff in O.S.No.50/2018 would submit that
during the life time of Peram Jayalakshmi, she bequeathed the plaint schedule property and other property in favour of the plaintiff in
O.S.No.50/2018 under a registered will dated.24.04.1989 in a sound and
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 14 Tenaliand OS.No.50/2018, dated. 27.12.2024.
disposing state of mind and immediately, after the death of Peram
Jayalakshmi, the said will was came into force. He would submit that the plaintiff in O.S.No.392/2017 himself in his cross-examination admitted that the certified copy of the registered will bearing document No.21/1989 appears to be issued by the Sub-Register Office, Duggirala. He would submit that plaintiff in O.S.No.392/2017 in his cross-examination admitted the receipt issued by Sub-Registrar Office, Duggirala in the name of his mother viz., Peram Jayalakshmi with regard to document No.21/1989 BK3.
He would submit that defendant in O.S.No.392/2017 himself performed the obsequies and other ceremonies of his mother Peram Jayalakshmi and plaintiff in O.S.No.392/2017 did not spend any amount to perform the obsequies and death ceremonies of his mother. He would submit that in order to prove registration or the said will dated.24.04.1989, CW1 who is the Sub-Register of Duggirala was examined and Exs.X.1 and X.2 are marked through him. He would submit that in order to prove the will dated.24.04.1989 the plaintiff in O.S.No.50/2018 got examined the son-in- law of one of the attesting witnesses of the will was examined PW.2 in
O.S.No.50/2018. He would submit that defendant in O.S.No.392/2017 and
plaintiff in O.S.No.50/2018 are proved the will dated.24.04.1989 and hence, the plaintiff is not entitled for the relief of partition.
21.In view of above arguments advanced by both sides, now this court proceeds to scrutinize the evidence adduced by both sides with meticulous care and caution with reference to the contents of the will dated.24.04.1989.
22.For better understanding, the recitals in Ex.A.2 will, dated.24.04.1989 which is marked in O.S.No.50/2018 are extracted hereunder:- డాక్యు�మెం�గ్ నం� :21 ఆఫ్ 1989 అనం 1989 సం�వత్స�రం� ఏప్రి�యర్ 24 తేదీనం . తెనాలి మం�డలం�, నం�దివెలుగు గ్రా"మం కాపురంస్తు& రాలు పేరం� చినంవీరంయ�గ్రారిభారం� జయలంక్ష్మిమం�చి వ�క్త&త్సతో వ్రా"యిం�చినం వీలునామా. నాక్యు 60 సం�సంక్త�రంములంవయస్తు�క్తలందు. నాక్యుయింద్ద7రుమంగప్రిలం:లుగలంరు. యింద్ద7రికివివ్రాహాది శుభకారం�ములు చేసియునాCను. నాక్యు గరాEశయములో ఆపరేషన్ జరిగినంది. యింపుMడు నా శరీరంములో సిరంసంముగ్రా వుం�టూR వుంనంCది. శరీరంములు ఆశాశTత్సములు గనుక్త నా తాలంRక్యు ఆసి&కి యేరాMటు చేయుటూ అవసంరంమంని తోచియిం�ద్దరి యేరాMలు వ్రా"యిం�చడమంయింనంది. నాక్యుగలం
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 15 Tenaliand OS.No.50/2018, dated. 27.12.2024.
భRసిZతిలో చి�త్సలంపూడి గ్రా"మంము తాలంRక్యు కొత్స& సంRరం�నారాయణగ్రారి ద్దగ`రం కానంC య.1.00 − యక్తరం� భRమి, నం�దివెలుగు గ్రా"మంములోని నివేశనం సంZలంము నా అనం�త్సరంము నా రెం�డవ క్యుమారుని క్యుమారెం& లంక్ష్మి దీప్రి& నా అనం�త్సరంము స్వాTధీనంము చేస్తుకొని దానం విక్త�యాది సం�పూరంh హక్యుjలంతో అనుభవి�చవలెను. శేషిం�చినం నా తాలంRక్యు యావత్తు& సి&రం, చరాస్తు& లు నా యింద్ద7రు క్యుమారులం ప్రిలం:లు అనంగ్రా నా మంనుమంలు నా అనం�త్సరం� స్వాTధీనంము చేస్తుకొని దానం ద్దమంనం వినిమంయ విక్త�యాది సం�పూరంh హక్యుjలంలో అనుభవి�చ వలెను. నేను యీ వీలునామా నా అనం�త్సరంము అమంలులోనికి రావలెను. యిం�ద్దరి యేరాMటు:అవసంరం�బట్టిs మారుtకానులంక్యు, రండుu పరందుకానం�లం నాయ�దే వుం�చుకానాCను. ఇది సం�పూరంh తెలివి తేలం�తో మంనంసంRMరి&గ్రా వ్రా"యిం�చినం పీలునామా . పేరం� జయ లంక్ష్మి స్వాక్షులు :- 1. చలువ్రాడి రామం రావుం
2. బRరం{ స్వా�బశివ రావుం ద్దసంR&రి :- మంనంRరు సీత్స రామం రావుం
23.Ex.A.2 in O.S.No.392/2017 is the registered legal notice, dated.28.10.2017 got issued by the plaintiff in O.S.No.392/2017 through his advocate to the defendant. Admittedly, the plaintiff in
O.S.No.392/2017 issued Ex.A.2 notice to the defendant prior to filing of
the suit in O.S.No.392/2017. Admittedly, the defendant in
O.S.No.392/2017 received the same on 30.10.2017 under Ex.A.3
acknowledgment. Admittedly, the plaintiff in O.S.No.392/2017 filed the said suit against the defendant before the court on 27.11.2017. The defendant as DW.1 in O.S.No.392/2017 in his cross-examination admitted that they did not issue any legal notice to the plaintiff till fining of the suit in O.S.No.392/2017 and receiving suit summons from the court. D.W.1 admitted that before filing of the suit in O.S.No.392/2017 the plaintiff got issued legal notice to him on 28.10.2017. He admitted that he did not issue any reply notice to the said notice. If really, the said Peram
Jayalakshmi executed the will dated.24.04.1989 in favour of the plaintiff in
O.S.No.50/2018, what prevented the defendant to issue reply notice to
the notice under Ex.A.2 by mentioning the averments made in his written statement about execution of will by his mother in favour of his daughter who is the plaintiff in O.S.No.50/2018 and for the first time he stated the same in his written statement. DW.1 denied the suggestion that since the plaintiff filed the suit in O.S.No.392/2017 for partition of the plaint schedule property, he brought his daughter in to picture and got filed
O.S.No.50/2018.Though, D.W.1 denied the above suggestion but the
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 16 Tenaliand OS.No.50/2018, dated. 27.12.2024.
material on record, it creates a doubt about the will dated.24.04.1989.
24.A perusal of the records show that after filing of the suit in O.S.No.392/2017, the plaintiff in O.S.No.50/2018 got issued Ex.A.5 legal notice dated.04.12.2017 through her counsel to the defendants who are her Senior paternal uncle and her father. Admittedly, the defendants in
O.S.No.50/2018 received Ex.A.5 legal notice under Ex.A.6 and A.7 postal
acknowledgments. Admittedly, the 1st defendant in O.S.No.50/2018 got issued reply notice dated.15.12.2017 through his counsel to the counsel for the plaintiff in O.S.No.50/2018. As can be seen from Ex.A.8 reply notice in O.S.No.50/2018, the first defendant in O.S.No.50/2018 who is the plaintiff in O.S.No.392/2017 denied the averments in Ex.A.5 legal notice and clearly stated about issuance of Ex.A.2 registered legal notice in
O.S.No.392/2017 to the second defendant in O.S.No.50/2018 and
defendant in O.S.No.392/2017 and receiving of the same under
Ex.A.3/postal acknowledgment in O.s.No.392/2017 and not giving any reply notice by the defendant in O.S.No.592/2017 and also stated that the second defendant in O.S.No.50/2018 and her daughter i.e., the plaintiff in
O.S.No.50/2018 colluded together and got issued the said false Ex.A.5
notice with false allegations. Admittedly, the plaintiff in O.S.No.50/2018 filed the said suit on 20.02.2018. Admittedly, after filing of the suit in
O.S.No.50/2018, the defendant in O.S.No.392/2017 filed his written
statement on 01.03.2018. Plaintiff in O.S.No.50/2018 was examined as
PW.1. During cross-examination the plaintiff in O.S.No.50/2018 deposed that the 1st defendant in O.S.No.50/2018 is her senior paternal uncle, the 2nd defendant in O.S.No.50/2018 is her father. She admitted that her senior paternal uncle i.e., 1st defendant in O.S.No.50/2018 filed suit in
O.S.No.392/2017 for partition against her father, who is the 2nd defendant
in O.S.No.50/2018 in respect of same schedule property which was shown in O.S.No.50/2018. She deposed that she came to know through her father in the year 2017 that her senior paternal uncle i.e., 1st defendant filed the suit in O.S.No.392/2017 against her father for partition. She deposed that she did not try to implead as party in O.S.No.392/2017. She
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 17 Tenaliand OS.No.50/2018, dated. 27.12.2024.
deposed that she does not know what amount of court fee paid in the suit and her father has to look after the affairs of the suit proceedings. She deposed that prior to filing of the suit in O.S.No.50/2018, she issued
Ex.A.5 legal notice through her counsel to the defendants. She deposed that she gave instructions to the counsel to issue Ex.A.5 legal notice to the defendants. She deposed that she issued Ex.A.5 legal notice in
O.S.No.50/2018 to her senior paternal uncle and her father, who are
defendants in O.S.No.50/2018. She deposed that her senior paternal uncle i.e., 1st defendant got issued reply notice under ex.A.8 to her and her father i.e., 2nd defendant did not issue any reply notice to the notice under
Ex.A.5. She admitted that her father obtained certified copies of Ex.A.1 and A.2 in O.S.No.50/2018 from SRO, Duggiriala. If really, PW.1 in
O.S.No.50/2018 came to know through her father in the year 2017 about
filing of the suit by her senior paternal uncle in O.S.No.592/2017, what prevented her to implead as a party in O.S.No.392/2017 instead of issuing
Ex.A.5 legal notice and filing of the suit in O.S.No.50/2018. The evidence of PW.1 in O.S.No.50/2018, it is clear that her father who is the defendant in O.S.No.392/2017 and 2nd defendant in O.S.No.50/2018 has look after the affairs of suit proceedings in O.S.No.50/2018 and as such he obtained certified copies of Exs.A.1 and A.2 in O.S.No.50/2018 from SRO, Duggirala and plaintiff in O.S.No.50/2018 has no knowledge about the documents i.e., Exs.A.1 and A.2 in O.S.No.50/2018. PW.1 in O.S.No.50/2018 denied the suggestion that after filing of the partition suit by her senior paternal uncle i.e., 1st defendant against her father i.e., 2nd defendant, she along with her father colluded with each other and created a story as if her paternal grand mother executed original of Ex.A.2 will in her favour.
Though PW.1 in O.S.No.50/2018 denied the above suggestion, but in view of the evidence on record, there is considerable force in the said suggestion put by the counsel for the 1st defendant in O.S.No.50/2018 who is the plaintiff in O.S.No.392/2017.
25.D.W.1 in O.S.No.592/2017 during his cross-examination deposed that he was not present at the time of execution of the will
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 18 Tenaliand OS.No.50/2018, dated. 27.12.2024.
dated.24.04.1989 by his mother Peram Jayalakshmi. He admitted that plaintiff in O.S.No.592/2017 did not attest the above said will dated.24.04.1989. He deposed that his mother studied 4th class and she was a signatory. He admitted that the signature of his mother is not appearing in the certified copy of will dated.24.04.1989. He deposed that as on the date of execution of the said will dated.24.04.1989 by his mother in favour of his daughter i.e., the plaintiff in O.S.No.50/2018 was aged about 4 years. He admitted that in the will dated.24.04.1989 executed by his mother no survey number is mentioned with regard to the plaint schedule property. He admitted that in the will dated.24.04.1989 the boundaries of the plaint schedule property were not mentioned. He admitted that in the will dated.24.04.1989 there is no recital that how his mother got the plaint schedule property. He admitted that in the will dated.24.04.1989 no disease of his mother was mentioned. He admitted that in the will dated.24.04.1989 there is no recital that either himself or his wife looked after the welfare of his mother. He admitted that in the said will no door number was mentioned. He denied the suggestion that his mother did not execute the will dated.24.04.1989. He denied the suggestion that the alleged document dated.24.04.1989 is not a will according to law and it was not executed by his mother in favour of his daughter.
26.PW.1 in O.S.No.50/2018 in her cross-examination deposed that by the date of execution of Ex.A.2 will, she was aged about 3 years. She deposed that there is no recital in Ex.A.2 will that her parents looked after the welfare of her paternal grand mother. She deposed that by the date of execution of Ex.A.2 will her father was not present. She does not know who were present on the date of execution of Ex.A.2 will.
She deposed that the recitals in Ex.A.2 does not reflect the boundaries with survey number and extent as mentioned in the schedule property in
O.S.No.50/2018 and it was also not disclosed about the property where it
was situated. She admitted that the recitals in Ex.A.2 do not disclose how her paternal grand mother got the property covered under Ex.A.2 will. She
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 19 Tenaliand OS.No.50/2018, dated. 27.12.2024.
admitted that there was no mention in Ex.A.2 will that she was represented by guardian. She deposed that there is no recital in Ex.A.2 will that the transaction under Ex.A.2 took place in the presence of her senior paternal uncle i.e., 1st defendant herein. She denied the suggestion that her paternal grand mother did not execute any will much less original of Ex.A.2 will in her favour.
27.Perused Ex.A.2 will dated.24.04.1989 in O.S.No.50/2018.
As can be seen from Ex.A.2 will dated.24.04.1989, there is no recital about extent of land, survey number or door number, boundaries of the property, where the property is exactly located, the age of the profounder of the will, whether the propounder of the will was minor, whether she was represented by guardian or not and the intention of the maker i.e., testatrix of the will under which circumstances she executed Ex.A.2 will in favour of plaintiff in O.S.No.50/2018. According to D.W.1 in
O.S.No.392/2017 at the time of execution of Ex.A.2 will, the plaintiff in
O.S.No.50/2018 was aged about 4 years and he was not present at the
time of execution of Ex.A.2 will. According to PW.1 in O.S.No.50/2018, she was aged about 3 years by the date of execution of Ex.A.2 will and her father was present at the time of execution of Ex.A.2 will, she does not know who were present on the date of execution of Ex.A.2 will and there is no mention in Ex.A.2 will how her paternal grand mother got the property. Except deposing in her evidence that her paternal grand mother told her that original of Ex.A.2 will was in the custody of plaintiff in
O.S.No.392/2017, there is no maternal on record, when she came to know
about the execution of Ex.A.2 will by her paternal grand mother in her favour, who informed her about the execution of Ex.A.2 will in her favour.
As can be seen from the the evidence of D.W.1 in O.S.No.392/2017 and
PW.1 in O.S.No.50/2018, there are several suspicious circumstances surrounding the will. In the case on hand, the burden heavily casts upon the propounder of the will i.e., the plaintiff in O.S.No.50/2018, but the plaintiff in O.S.No.50/2018 failed to remove the suspicious circumstances surrounding the will dated.24.04.1989.
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 20 Tenaliand OS.No.50/2018, dated. 27.12.2024.
28.To substantiate her case, the plaintiff in O.S.No.50/2018 mainly relied on the evidence of C.W.1 who is the Sub-Register of
Duggirala in OS.No.392/2017 and the evidence of PW.2 in OS.No.50/2018 who is the son-in-law of one of the attestors of Ex.A.2 will and documentary evidence in the form of Exs.X.1, X.2 and Ex.A.11. CW.1 in his chief-examination deposed that he produced the thumb impression
Register volume No.200 containing page No.117 containing the signature and thumb impression of Peram Jayalakshmi dated.24.04.1989. Ex.X.1 is the thumb impression and signature of Peram Jayalakshmi dated.24.04.1989 in page No.117 of thumb impression register volume
No.200. Ex.X.2 is the attested copy of the registered will bearing
No.21/1989 dated.24.04.1989 executed by Peram Jayalakshmi. CW.1 was subjected to cross-examination by learned counsel appearing for plaintiff in O.S.No.392/2017. During cross-examination CW.1 deposed that he does not know whether Peram Jayalakshmi subscribed her signature and affixed her thumb impression on Ex.X.1. He deposed that he cannot say whether Peram Jayalakshmi or anybody subscribed her signature and thumb impression on Ex.X.1 register as he was not working in the said
Sub-Register Office. He admitted that as per Ex.X.2 attested copy of the registered will only Ac.1-00 cents of land is mentioned and there are no boundaries, extent and survey number mentioned. He admitted that in
Ex.X.1 register no photograph or any identity of the executant was attached. He admitted that as per Ex.X.2 no reference of document under which the executant got the same was not mentioned. At this juncture, learned counsel appearing for defendant in O.S.No.392/2017 and plaintiff in O.S.No.50/2018 that the plaintiff in O.S.No.392/2017 would submit that as PW.1 in his cross-examination admitted that Ex.X.2 certified copy of registered will bearing document No.21/1989 dated.24.04.1989 appears to be issued by the Sub-Registrar office, Duggirala. The said evidence of
PW.1 shows that he only deposed that Ex.X.2 which is equivalent to Ex.A.1 in O.S.No.392/207 and Ex.A.1 in O.S.No.50/2018 appears to be issued by
Sub-Registrar Office, Duggirala but he did not admit that his mother
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 21 Tenaliand OS.No.50/2018, dated. 27.12.2024.
executed the same in favour of plaintiff in O.S.No.50/2018. Further, the evidence of of CW.1 is clear that as per Ex.X.2 attested copy of the registered will only Ac.1-00 cents of land is mentioned and there are no boundaries, extent and survey number mentioned. As already stated supra, there are no recitals in respect of extent, survey number, boundaries and location of property in respect of schedule property in the will dated.24.04.1989. Further, there is no mention in the will dated.24.04.1989 how the testatrix got the property. Further, CW.1 in his cross-examination admitted that he cannot say whether Peram
Jayalakshmi or anybody subscribed her signature and thumb impression on Ex.X.1 register. The evidence of CW.1 is clear that he is also not specific that whether Peram Jayalakshmi or anybody subscribed her signature and thumb impression on Ex.X.1 register. As already stated supra, there are no recitals in respect of extent, survey number, boundaries and location of property in the will dated.24.04.1989 and in the absence of the same, it cannot be said that the entry in Ex.X.1 i.e., signature and thumb impression of Peram Jayalakshmi were relating to bequeathing schedule property in favour of plaintiff in O.S.No.50/2018.
29.Ex.A.11 in O.S.No.50/2018 is the original receipt dated.
24.04.1989 stands in the name of Peram Jayalakshmi issued by Sub-
Register, Duggirala. PW.1 in O.S.No.392/2017 in his cross-examination deposed that Ex.A.11 stands in the name of his mother Peram Jayalakshmi with regard to document No.21/1989 BK3 and an amount of Rs.61/- paid towards registration charges and other fee dated.24.04.1989. PW.1 deposed that he does not know whether the above said receipt was issued by the Sub-Registrar office, Duggirala or not. He deposed that he does not know whether the above said receipt was issued by the Sub-Register office, Duggirala when his mother got registered the will executed by her in the name of the plaintiff in O.S.No.50/2018. PW.1 in O.S.No.50/2018 in his cross-examination admitted that there is no signature, stamp and seal evidencing that Ex.A.11 receipt was issued by the SRO, Duggirala. She admitted that there is no printed recital in Ex.A.11 that it was issued by
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 22 Tenaliand OS.No.50/2018, dated. 27.12.2024.
the office of SRO, Duggirala. She denied the suggestion that they obtained
Ex.A.11 receipt from the then karanams and got filled the contents of
Ex.A.11. . Perused Ex.A.11 receipt. As can be seen from Ex.A.11, it does not contain signature of the Registration Officer, signature of presentant, signature of the Recipient, initials of Registering Officer etc., and even there is no seal of Sub-Registrar office, Duggirala in Ex.A.11. In the absence of the same, mere mentioning name of the executant and document number in Ex.A.11, it cannot be said that Ex.A.11 receipt was issued by the Sub-Registrar Office, Duggirala. Therefore, Ex.A.11 receipt is not at all useful to the case of the plaintiff in O.S.No.50/2018.
30.It is well settled that a Will has to be executed in the manner required by Sec.63 of Succession Act. Sec.68 of Evidence Act requires a Will has to be proved by examining atleast one attesting witness. Unlike other documents the Will speaks from the death of testator and therefore, the maker of the Will is never be available for disposing has to be circumstances in which, the Will come to be concluded. It was, therefore, incumbent on the profounder to prove its execution and attestation according to law. In order to prove the Will dt.24.04.1989 the plaintiff in OS.No.50/2018 relied on the evidence of
PW.2 in OS.No.50/2018. As can be seen from the Will dt.24.04.1989 one
Manuru Seeta Rama Rao was scribe and Chaluvadi Rama Rao and Burma
Sambasiva Rao are the attestors of the Will dt.24.04.1989. PW.1 in
OS.No.392/2017 in his cross-examination admitted that Chaluvadi Rama
Rao and Burma Sambasiva Rao are residents of his village i.e.,
Nandivelugu Village. He deposed that he does not have any disputes with the said Chaluvadi Rama Rao and Burma Sambasiva Rao. He deposed that the said Chaluvadi Rama Rao and Burma Sambasiva Rao are no more. He deposed that he knows one document writer by name Manuri
Sitaramaiah. He admitted that the said Manuri Sitaramaiah scribed their property transactions belongs to their family. He deposed that the said
Manuri Sitaramaiah is also no more. He deposed that he does not know whether the children of Burma Sambasiva Rao are residing in their village
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 23 Tenaliand OS.No.50/2018, dated. 27.12.2024.
or not. He deposed that he does not know the L.Rs of Burma Sambasiva
Rao. He deposed that he know the children of Chaluvadi Rama Rao. He deposed that the said Chaluvadi Rama Rao has got three children. He does not know the original names of the children of Chaluvadi Rao, but they are called as Peddabbai, Bujji and Srinivasa Rao. He deposed that he does not know the children of Manuri Sitaramaiah. DW.1 in
OS.No.392/2017 in his cross-examination admitted that one Manuri Sita
Rama Rao is the scribe of the Will dt.24.04.1989. He admitted that the said Manuri Sita Rama Rao is also scribe of the registered sale deed in the name of his father dt.01.06.1968. He admitted that the name of the scribe in the Will dt.24.04.1989 is Manuri Sita Rama Rao. He admitted that there is difference in writing in the document dt.24.04.1989 and the document dt.01.06.1969. He admitted that Ex.A.1 document was also scribed by
Manuri Sita Ram Rao. He denied the suggestion that the signatures on the
Will dt.24.04.1989 does not belong to his mother and the signature of the scribe also does not belong to Manuri Sita Rama Rao and that he created the said document. As can be seen from the evidence of PW.1 and DW.1 in OS.No.392/2017, it is clear that scribe and attestors of Ex.A.2 Will dt.24.04.1989 are no more.
31.PW.2 in OS.No.50/2018 is said to be son-in-law of Burma
Srinivasa Rao who is said to be 2nd attestor under Will dt.24.04.1989. As already stated supra, in order to prove the Will dt.24.04.1989 the plaintiff in OS.No.50/2018 mainly relied on the evidence of PW.2 in
OS.No.50/2018. PW.2 in OS.50/2018 in his chief-evidence affidavit stated
that he is the son-in-law of Burma Sambasiva Rao, S/o.Krishna Murthy,
Nandivelugu Village. He stated that his father-in-law died on 07.05.2021 due to Carona. He stated that during the life time of his father-in-law, he told him that Peram Jaya Lakshmi, W/o.China Veeraiah executed a Will dt.24.04.1989in a sound and disposing state of mind by bequeathing the one acre of land of Chintalapudi Village and Ac.0.02 cents of site along with house therein of Nandivelugu Village i.e., the plaint schedule property to her grand daughter who is the plaintiff and the said Will was
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 24 Tenaliand OS.No.50/2018, dated. 27.12.2024.
registered before the Sub-Registrar, Duggirala on the same day in his presence and he signed as attestor along with Chaluvadi Rama Rao in the said Will. PW.2 stated that his father-in-law further told him that he signed as attesting witness before the Sub-Registrar, Duggirala along with
Mullapudi Venkateswarlu at the time of registration of the Will. He deposed that he can identify the signature of his father-in-law i.e., Burma
Sambasiva Rao. PW.2 in OS.No.50/2018 was cross-examined by learned counsel appearing in OS.No.392/2017 who is 1stdefendant in
OS.No.50/2018. During cross-examination, PW.2 deposed that his father-
in-law shared the things happened in the family with him. He deposed that he does not know one Peram Jayalakhsmi. He deposed that his father-in-law never told him that when he executed documents, where he signed on documents with dates and years. As already stated supra, there is no mention about the schedule property in the Will dt.24.04.1989, but surprisingly PW.2 in OS.No.50/2018 in his chief-evidence affidavit stated that Peram Jaya Lakshmi, W/o.China Veeraiah executed a Will dt.24.04.1989 in a sound and disposing state of mind by bequeathing the one acre of land of Chintalapudi Village and Ac.0.02 cents of site along with house therein in Nandivelugu Village i.e., plaint schedule property.
When there is no extent of Ac.0.02 cents along with house therein was not mentioned in the Will dt.24.04.1989, as to how his father-in-law told the execution of the Will dt.24.04.1984 with specific extent to him. Further, he did not depose that when his father-in-law during his life time informed about the execution of Will dt.24.04.1989 to him. On scrutiny of evidence of PW.2 in OS.No.50/2018 his evidence is not at all believable.
32.The contention of the learned counsel appearing for the plaintiff in OS.No.392/2017 is that the alleged Will dt.24.04.1989 is not a
Will according to law as the factors such as the awareness of the testator as to content as well as the consequences, nature and effect of dispositions in the Will, sound, certain and disposing state of mind and memory of the testator at the time of alleged execution, testator executed the Will while acting on his own free Will. DW.1 in
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 25 Tenaliand OS.No.50/2018, dated. 27.12.2024.
OS.No.392/2017 in his cross-examination admitted that Will dt.24.04.1989
no disease of his mother was mentioned. He admitted that in the Will dt.24.04.1989 there is no recital that either himself or his wife looked after the welfare of his mother. PW.1 in OS.No.50/2018 in her cross- examination deposed that there is no recital in Ex.A.2 Will herein that her parents looked after the welfare of her paternal grand mother. As already stated supra, there is no mention in the Will dt.24.04.1989 about the intention of maker i.e., testatrix to execute the Will dt.24.04.1989 in favour of plaintiff in OS.No.50/2018. Perused the judgment relied on by the learned counsel appearing for plaintiff in OS.No.392/2017 who is 1st defendant in OS.No.50/2018 reported in 2024 (5) ALT 571 (A.P) in the
case of Allamraju Srinivasa Murthy Vs. Allamraju Syamala Murthy,
wherein at Para No.19 it was held as follows :- “The test of judicial conscience has been evolved for dealing with those cases where the execution of Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of testator as to the content as well as the consequences, nature and effect of dispositions state of mind and memory of the testator at the time of alleged execution testator executed the will while acting on his own free Will. These ingredients are lacking in the evidence of witnesses in the case on hand. In the absence of any such evidence, it is unsafe to come to conclusion that the alleged will was duly executed by the testator in the presence of witnesses out of his free will in a sound and disposing state of mind.”
33.In the case on hand also, the above ingredients are lacking in the evidence of DW.1 in OS.No.392/2017 and plaintiff in
OS.No.50/2018. In the absence of any such evidence, it is unsafe to come
to conclusion that the alleged Will was duly executed by the testator i.e.,
Peram Jaya Lakshmi in the presence of witnesses out of her free Will in a sound and disposing state of mind. In the above said decision relied on by the counsel appearing for plaintiff in OS.No.392/2017 who is 1st defendant in OS.NO.50/2018 is squarely applicable to the present facts of the case.
In this case, the defendant in OS.No.392/2017 and the plaintiff in
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 26 Tenaliand OS.No.50/2018, dated. 27.12.2024.
OS.No.50/2018 are failed to prove the execution of the Will dt.24.04.1989
in favour of the plaintiff in OS.No.50/2018.
34.Ex.A.4 in OS.No.50/2018 is the certificate issued by
Panchayat Secretary, Gram Panchayat Nandivelugu, Tenali dt.17.02.2018.
DW.1 in OS.NO.392/2017 in his cross-examination admitted that since the year 2006 i.e., after the death of his mother Peram Jaya Lakshmi, his daughter did not pay any tax to the property bequeathed to her under the alleged Will dt.24.04.1989. He deposed that after the death of his mother, the panchayat authorities did not collect the property tax for the said property and when he approached the panchayat authorities, they stated to him that since the tax was small amount, they will levy the same later.
DW.1 in OS.No.392/2017 in his cross-examination admitted that there are no documents to show that the plaintiff in OS.No.50/2018 is in exclusive possession of the plaint schedule property. PW.1 in OS.50/2018 during her cross-examination deposed that she did not file any documentary proof stating that immediately after the death of her paternal grand mother, the original of Ex.A.2 Will came into force. She denied the suggestion that she is not the owner of the plaint schedule property in OS.No.50/2018 and as such, she has no right to claim that she is the woner of the schedule property in OS.No.50/2018. She deposed that her paternal grand mother died in the year 2006. She deposed that the recitals in Ex.A.4 are clear that after the death of her paternal grand mother, the tax was paid in her name. He admitted that there is no mention in Ex.A.4 who paid the tax to the revenue authorities. If really, the Will dt.24.04.1989 was executed in favour of the plaintiff in OS.No.50/2018 by Peram Jaya Lakshmi, what prevented her to mutate her name immediately the Will came into force after the death of testatrix i.e., Peram Jaya Lakhsmi. As can be seen from
Ex.A.4, the property tax was paid during the year 2007-2008. As can be seen from Ex.A.4 who paid the property tax to Nandivelugu Panchayat.
Basing on Ex.A.4 certificate issued by Panchayat Secretary, Gram
Panchayat Nandivelugu, Tenali, it cannot be said the plaintiff in
OS.No.50/2018 has been possession and enjoyment of the suit schedule
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 27 Tenaliand OS.No.50/2018, dated. 27.12.2024.
property. In this case, the plaintiff in OS.No.50/2018 did not file any single document to show that she has been in possession and enjoyment of suit schedule property in OS.No.50/2018 immediately the Will came into force after the death of Peram Jaya Lakshmi. Mere filing of Ex.A.4, it cannot be said the plaintiff in OS.No.50/2018 has been in possession and enjoyment of suit schedule property in OS.No.50/2018. Hence, Ex.A.4 document is not at all useful to the case of the plaintiff in OS.No.50/2018.
35.Ex.A.9 is the valuation slip dt.03.01.2018 issued by
SRO, Duggirala in respect of plaint schedule property is not at all useful to the case of the plaintiff. Ex.A.10 in OS.No.50/2018 is the notice issued by her counsel to the advocate for 1st defendant dt.16.02.2021. Perused
Ex.A.10. As can be seen from Ex.A.10, it is the notice issued by the plaintiff in OS.No.50/2018 to her Senior Paternal Uncle i.e.,
OS.No.392/2017 who is 1st defendant in OS.No.50/2018 requesting him to
produce the original registered Will bearing doc.No.21/1989 of SRO,
Durrigala dt.24.04.1989 executed by Peram Jaya Lakshmi in favour of plaintiff in OS.No.50/2018 as the said original Will is in the custody of the plaintiff in OS.No.392/2017 who is 1st defendant in OS.No.50/2018. PW.1 in
OS.No.392/2017 in his cross-examination deposed that himself and his
mother lived at Nandivelugu. He denied the suggestion that all the documents belongs to his mother were in his custody. He deposed that he came to know that the plaintiff in OS.No.50/2018 filed the said suit for declaration basing on the Will executed by her paternal grand mother in her favour.
36.PW.1 in OS.No.50/2018 in her cross-examination deposed that her paternal grand mother told her the original Will is in the custody of her senior paternal uncle in OS.No.50/2018. PW.1 further admitted that she did not mention in her plaint, in her Ex.A.5 legal notice or her chief evidence affidavit that “her paternal grand mother told her that original of Ex.A.2 Will is in the custody of her Senior paternal uncle i.e., 1st defendant. As can be seen from the evidence of PW.1 in
OS.No.50/2018 she did not depose when her paternal grand mother told
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 28 Tenaliand OS.No.50/2018, dated. 27.12.2024.
her that original of Ex.A.2 Will dt.24.04.1989 is in the custody of 1st defendant in OS.No.50/2018, who is in plaintiff in OS.No.392/2017. If really, the paternal grand mother in OS.No.50/2018 told her that the original Will dt.24.04.1989 was in custody of 1st defendant in
OS.No.50/2018 who is plaintiff in OS.No.392/2017 certainly she ought to
have mentioned the said facts in her Ex.A.5 legal notice, in the plaint and also in her chief-evidence affidavit. It shows that for the first time, the plaintiff in OS.No.50/2018 deposed that her paternal grand mother told her the original of Ex.A.2 Will dt.24.04.1989 is in the custody of 1st defendant in OS.No.50/2018 who is plaintiff in OS.No.392/2017. Basing on
Ex.A.10 notice, it cannot be said that the original of Ex.A.2 Will dt.24.04.1989 is in the custody of plaintiff in OS.No.392/2017 who is 1st defendant in OS.No.50/2018. In this case, the defendant in
OS.No.392/2017 and the plaintiff in OS.No.50/2018 failed to prove that the
original of Ex.A.2 is in the custody of plaintiff in OS.No.392/2017 who is 1st defendant in OS.No.50/2018.
37.Exs.B.1 and B.2 are marked during cross-examination of
PW.1 in OS.No.392/2017. Ex.B.1 is the signatue of PW.1 in registered sale deed stands in the name of Tadiboina Nageswara Rao and Siva Parvathi executed by his mother Peram Jaya Lakshmi dt.20.06.2005 and Ex.B.2 is the certified copy of registered sale deed executed by Peram Jaya
Lakshmi in favour of Nallamokala Gopalakrishnaiah dt.20.06.2005. A perusal of Exs.B.1 and B.2 shows that in both documents, the plaintiff in
OS.No.392/2017 and OS.No.50/2018 is acted the attesting witness in the
said two documents. Exs.B.1 and B.2 documents are no way helpful to the case of the defendant in OS.No.392/2017 and plaintiff in OS.No.50/2018. It is the contention of learned counsel appearing for defendant in
OS.No.392/2017 and plaintiff in OS.No.50/2018 that the defendant in
OS.No.392/2017 himself performed obsequies and death ceremonies of
his mother Peram Jaya Lakshmi by spending his own amount and the plaintiff did not spend any amount towards the obsequies and death ceremonies of his mother Peram Jaya Lakshmi. PW.1 in OS.No.392/2017 in
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 29 Tenaliand OS.No.50/2018, dated. 27.12.2024.
his cross-examination clearly deposed that the defendant performed the obsequies and ceremonies of his mother with the amount which was derived after selling Ac.0.98 cents of agricultural land. PW.1 deposed that the above said Ac.0.98 cents of agricultural land was sold by his mother during her lifetime to one Peram Chandrasekhar for a consideration of
Rs.1,18,000/- on 19.07.2004. He deposed that himself, defendant and his mother partitioned the above said Rs.1,18,000/- equally after keeping an amount of Rs.25,000/- out of the said amount for the purpose of obsequies of his mother. He deposed that the amount of Rs.25,000/- was kept with the defendant. He deposed that there is no document to show that the said amount of Rs.25,000/- was kept with the defendant. PW.1 denied the suggestion that keeping of Rs.25,000/- for the purpose of obsequies of his mother with the defendant is false. The plaintiff in
OS.NO.392/2017 clearly explained the circumstances under which
spending of amount towards obsequies and death ceremonies of Peram
Jaya Lakshmi by the defendant. Therefore, in view of said evidence of
PW.1 in OS.No.392/2017 in his cross-examination, it cannot be said the defendant himself spent his own amount of Rs.25,000/- and performed the obsequies and death ceremonies of his mother Peram Jaya Lakshmi.
38.On overall scrutiny of evidence of PW.1, DW.1, CW.1 in
OS.NO.392/2017, PWs.1 and 2 in OS.No.50/2018, with reference to the
documentary evidence in the form of Exs.A.1 to A.3 produced by the plaintiff in OS.No.392/2017 and the documentary evidence in the form of
Exs.A.1 to A.11 produced by the plaintiff in OS.No.50/2018, the defendant in OS.No.392/2017 and the plaintiff in OS.No.50/2018 failed to prove the
Will dt.24.04.1989 executed by Peram Jaya Lakshmi in favour of plaintiff in
OS.No.50/2018. As the plaintiff in OS.No.50/2018 failed to prove the
execution of Ex.A.2 Will in her favour by her paternal grand mother viz
Peram Jaya Lakshmi and she did not file any documentary proof evidencing that she has been in possession and enjoyment of plaint schedule property in both the suits and hence, she is not entitled for the relief of declaration and consequential relief of permanent injunction as
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 30 Tenaliand OS.No.50/2018, dated. 27.12.2024.
prayed for. Hence, Issue No.1 in OS.No.392/2017 is accordingly answered in favour of the plaintiff and against the defendant and Issue Nos.1 and 2 in OS.No.50/2018 is answered in favour of 1st defendant in OS.No.50/2018 and against the plaintiff in OS.No.50/2018.
39.ISSUE NOs.2 and 3 in OS.No.392/2017
In view of findings given in Issue No.1 in OS.No.392/2017 and
Issue Nos.1 and 2 in OS.No.50/2018, the plaintiff in OS.No.392/2017 is entitled for preliminary decree of partition against the defendant as prayed for and he is also entitled future profits over his share from the date of filing of the suit till the date of possession of his share as prayed for. Issue Nos.2 and 3 are answered accordingly in favour of plaintiff in
OS.No.392/2017.
40.ISSUE NO.4 in OS.No.392/2017
In the result, the suit is preliminarily decreed without costs by partitioning the plaint schedule property into two equal shares and to allot one such share to the plaintiff with separate metes and bounds. In respect of future profits from the date of filing of the suit till the date of possession, the plaintiff is directed to file separate petition.
41.ISSUE NO.3 in OS.No.50/2018
In the result, the suit is dismissed without costs.
Typed to my dictation to the Stenographer Gr.III, corrected and
pronounced by me in open court, this the 27th day of December, 2024.
II ADDL. JUNIOR CIVIL JUDGE,
FAC I ADDL. JUNIOR CIVIL JUDGE,
TENALI.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
OS.No.392/2017
For the plaintiff :
PW.1 : Peram Siva Sankara Rao. For the defendant :
DW.1 : Peram Mohan Veeranjaneyulu.
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 31 Tenaliand OS.No.50/2018, dated. 27.12.2024.
For the Commissioner :
CW.1 : Addanki Nava Kumar.
DOCUMENTS MARKED
On behalf of plaintiff :
Ex.A.1 :Gift deed dt.25.05.1974 executed by the father of the plaintiff China Veeraiah in favour of plaintiff’s mother Jaya Lakshmi.
Ex.A.2 :Registered legal notice dt.28.10.2017 got issued by the plaintiff through his advocate to the defendant. Ex.A.3 :Acknowledgment dt.30.10.2017.
On behalf of defendant: Ex.B.1 :Signature of the witness on the photocopy of the registered sale deed dt.20.06.2005.
Ex.A.2 :Certified copy of registered sale deed executed by his mother in favour of Nallamokala Gopala Krishnaiah dt.20.06.2005.
On behalf of commissioner: Ex.X.1 :Thumb impression and signature of Peram Jayalakshmi dt.24.04.1989 in page No.117 of thumb impression register volume No.200.
Ex.A.2 :Attested copy of registered will bearing No.21/1989 dt.24.04.1989 executed by Peram Jayalakshmi.
OS.No.50/2018
For the plaintiff :
PW.1 : Tulluru Lakshmi Prasanna. PW.2 : Kanugolu Suresh. For the 1 st defendant :
DW.1 : Peram Mohan Veeranjaneyulu.
DOCUMENTS MARKED
On behalf of plaintiff :
Ex.A.1 :Certified copy of registered gift deed dt.25.05.1974 bearing doc.No.1443/1974 executed by Peram China Veeraiah in favour of Peram Jaya Lakshmi.
Ex.A.2 :Certified copy of registered Will dt.24.04.1989 bearing doc.No.21/1989 of SRO, Duggirala executed by Peram
I Addl. Civil Judge (J.D) Court,Common Judgment in OS.No.392/2017 32 Tenaliand OS.No.50/2018, dated. 27.12.2024.
Jayalakshmi in her favour. Ex.A.3 :Computer generated death certificates of Peram Jayalakshmi dt.08.12.2017 issued by Registrar of Birth and Death, Gram Panchayat, Nandivelugu. Ex.A.4 :Certificate issued by Panchayat Secretary, Gram Panchayat Nandivelugu, Tenali dt.17.02.2018. Ex.A.5 :Office copy of legal notice dt.04.12.2017 got issued by her through her counsel to the defendants. Ex.A.6 :Postal acknowledgment of 1st defendant dt.12.12.2017. Ex.A.7 :Postal acknowledgment of 2nd defendant dt.12.12.2017. Ex.A.8 :Reply notice dt.15.12.2017 got issued by the 1st defendant through his counsel to her counsel. Ex.A.9 :Valuation slip dt.03.01.2018 issued by SRO, Duggirala in respect of plaint schedule property. Ex.A.10: Notice issued by her counsel to the advocate for 1st defendant dt.16.02.2021. Ex.A.11: Original receipt dt.24.04.1989 stands in the name of Peram Jayalakhsmi issued by sub-Registrar, Duggirala.
On behalf of 1 st defendant: NIL.
II ADDL. JUNIOR CIVIL JUDGE,
FAC I ADDL. JUNIOR CIVIL JUDGE,
TENALI.