Sri P. Tirumala Rao PSCJ ATP

O.S.140/20051P.S.C.J.Court, Anantapuramu

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::

ANANTHAPURAMU

PRESENT:- Sri P.Tirumala Rao,

Principal Senior Civil Judge, Ananthapuramu

Tuesday, the 25th day of June, 2019

ORIGINAL SUIT No.140/2005

Between :

1. Smt. B.Sreedevi (Died) Rep. by L.Rs.

2. Boda Srinivasa Rao, s/o Veera Vasantha Rao, aged about 54 years, Indian, Hindu

3. Boda Hemanth, s/o Boda Srinivasa Rao, aged about 25 years, Indian, Hindu

Both are residing at Plot No.103, 2nd Floor, R.K.Gold Apartment, Road No.5, Sriramnagar, Sanivarapupeta, Eluru Rural Mandal, W.G. District (L.Rs. of Smt. B.Sreedevi added as per

orders in I.A.No.439/2018, dt. 11-6-2018) ... Plaintiffs

And

1. C.Chennakesavulu (Died) Rep. by L.Rs.

2. C.Jnaneswar, s/o Latge Chennakesavulu, aged about 58 years, Hindu, R/o 27-2-1, Prasanghi Nilayam, Kalidani Vari Veedhi, Bheemavaram, West Godavari District

3. C.Sudhakar, s/o Late Chennakesavulu, aged about 39 years, Hindu, Residing at D.No.7/302, C/o Sudhakar Paints, Court Road, Ananthapuramu Town

4. P.Subhashini @ Bharathi, w/o P.Bhaskar (Superintendent of Sub-Jail), aged about 37 years, Hindu, Residing in Ladak Bazaar (Besides Railway Track), Madhira Mandal, Khammam District

5. G.Padma, w/o Late G.Krishna Reddy, aged about 35 years, Hindu, Residing at D.No.17/599-1 (Upstairs),

Neeruganti Street, Ananthapuramu Town... Defendants

O.S.140/20052P.S.C.J.Court, Anantapuramu

This suit coming on 18-6-2019 for final hearing before me in the presence of Sri R.Rama Kumar, Sri K.V.Ramana Reddy, Sri K.Nagaraju,

Advocates for the plaintiffs and of Sri T.Ranga Reddy, Advocate for the 1st defendant, Sri N.R.K.Mohan, Advocate for the 2nd defendant,

Sri Kullayappa, Advocate for defendant 3rd defendant, Sri M.Sudhakar,

Advocate for 4th defendant, and Sri V.Ravisankar Reddy, Advocate for the 5th defendant and upon perusal of the available material on record this court delivered the following :-

J U D G M E N T

1.Initially the 1st plaintiff filed suit for partition and separate possession claiming 1/5th share in the suit schedule properties, alleging as follows :

2.That defendant No.1 is father, defendants 2 and 3 are brothers and defendants 4 and 5 are sisters of plaintiff. There was a partition of joint family properties between 1st defendant, his father and his brothers under partition deed No.6858/1963 dt, 6-12-1963, in which the 1st defendant got 'C' schedule properties therein. Again there was a partition between the 1st defendant and his brothers under registered partition deed dt. 12-9-1977 in which the 1st defendant got 'B' schedule properties therein. The plaint schedule properties are joint family properties of 1st plaintiff and defendants, but the defendants 1 and 3 maintaining the same. The 1st plaintiff came to know that the 1st defendant is contemplating to act detrimentally to the rights of the 1st plaintiff in respect of suit schedule properties and made deaf ear for partition and separate possession and postponing the same on some pretext or other. The plaintiff is no longer congenial to continue in joint possession of suit schedule property and filed suit

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for partition and separate possession of her 1/5th share. Hence, the suit.

3.During pendency of the suit, 1st plaintiff died leaving behind her husband and son and they were added as plaintiffs 2 and 3.

4.The defendants 1, 2 and 4 filed their separate written statements. The 3rd defendant filed memo adopting the written statement filed by the 1st defendant. 5th defendant not filed any written statement.

5.On the other hand, the 1st defendant filed his written statement, 3rd defendant adopted the same and admitted the relationship pleaded in the plaint, but denied the other allegations. The 1st defendant further pleaded that the 1st plaintiff is not having any share in the suit schedule property and the 1st defendant never acted adverse to the interest of the 1st plaintiff and the 1st plaintiff and defendants never enjoyed the suit schedule property jointly and the question of making demand for partition and separate possession does not arise.

6.The 1st defendant further pleaded that at the time of marriage of 1st plaintiff, the 1st defendant paid a sum of Rs.5,00,000/- towards her share apart from marriage expenses and also presented 30 tulas of gold, 5 Kgs. of silver and sarees worth of Rs.75,000/-. The 1st plaintiff received all the gold, silver, cash etc. and relinquished her right in the suit schedule property. The 1st defendant also spent more than Rs.3

Lakhs towards marriage expenses by borrowing amounts. The 1st

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plaintiff filed present suit only to harass the 1st defendant with ulterior motive and prays to dismiss the suit.

7.The 2nd defendant also filed his separate written statement, admitted relationship in the plaint and denied the other allegations.

The 2nd defendant further pleaded that the suit schedule properties are self acquired properties of 1st defendant and the plaintiffs have no right to claim share in the separate and self acquired properties of 1st defendant. The 1st plaintiff had no co-parcenary or co-ownership right in the suit schedule properties. The 1st plaintiff and 5th defendant acknowledged exclusive right of 1st defendant over the suit schedule properties and they are self acquired assets of Chippagiri Kesappa.

8.The 2nd defendant further pleaded that item No.1 of suit schedule property was purchased byChinna Kesappa vide Document

No.1466/1993, item No.2 and 2A were constructed on a site purchased by Kesappa on 26-8-1926. Out of Ac.0.10 cents site, he alienated

Ac.0-05 cents on a approved plan in the year 1944, item No.2 and 2A are the buildings which exists on such site. In fact, he had obtained loan on 10-6-1954 by mortgaging 2 and 2A properties. The 2nd defendant further pleaded that items 3 and 3A of plaint schedule properties are purchased by Late Chinna Kesappa on 20-7-1965, the same is fell to the lot of 1st defendant and he got a building made under approved plan dt. 27-6-2003, item No.4 was occupied by Late

Chinna Kesappa in the year 1923 and constructed a building now its in dilapidated condition. The said item was fell to the lot of Chinna

Kesappa in the year 1963 and in the subsequent partition after the death of Chinna Kesappa in the year 1974, item No.4 of suit property

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fell to the lot of 1st defendant and his elder brother, 1st defendant retained it while his property alienated to third parties and none of the properties are joint family properties, all the properties are self acquired assets of Late Chinna Kesappa, in turn allotted to the 1st defendant. The 2nd defendant further pleaded that Chinna Kesappa was fell ill in the year 1963 and retained a portion of his properties for himself, his wife, and distributed it to his sons. The suit properties are self acquired assets of 1st defendant and they are not joint family assets.

9.The 2nd defendant further pleaded that the 1st defendant executed two registered Wills on 27-2-2003 in favour of 2nd defendant and another Will dt. 28-02-2003 in favour of 3rd defendant, bequeathing his self acquired assets to them in the presence of 1st plaintiff and 5th defendant. The 5th defendant is one of the attestors to the Wills.

10.The 2nd defendant further pleaded that item No.4 of suit property an extent of Ac.0-18 cents land adjoining item No.1 was reserved for daughters by the 1st defendant. The defendants respected the sentiment of their father. After the death of 1st defendant, items 1, 2, 2A, 3, 4A are exclusive items of defendants 2 and 3 and they are not partitionable assets at all. After the death of 1st defendant, Will came into force, 3rd defendant is in possession and enjoyment of a portion of property and he is living there, the other portion is let out by 2nd defendant for a sum of Rs.4,000/-, no rents are received for the building located on court road, Anantapur (items 2 and 3). In the building situated at Venugopala Nagar (item No.3),

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defendants 2 and 3 are residing and rest of the portion is many times vacant, sometimes occupied by the tenants. The 5th defendant is not paying any rent to the 2nd defendant and the 2nd defendant is paying house tax and water tax. The defendants 2, 3 have been depositing an amount of Rs.5,000/- to the 4th and 5th defendants every month towards rents received by them, 5th defendant is accommodated in item No.3 since she is a widow and no financial support of her own.

The plaintiff is not in joint possession of property, the court fee paid is not correct, the 1st defendant sold a portion of property to perform marriage of his three daughters and retained some portion and he bequeathed under Will, and prays to dismiss the suit.

11.The 4th defendant also filed her separate written statement and admitted the relationship pleaded in the plaint, denied other allegations. The 4th defendant further pleaded that 4th defendant is the second daughter of 1st defendant, the marriage of 2nd defendant was performed by his father in the month of June, 1993. At the time of her marriage her father has given dowry, ornaments and cash equal to her share in the property. During lifetime of 1st defendant he executed registered Wills on 27-2-2003 and 28-2-2003 in favour of defendants 2 and 3 respectively while he was in good state of mind.

The 4th defendant also pleaded that execution of Will by the 1st defendant in favour of D.2, D.3 is well known to the 1st plaintiff and 5th defendant.

12.The defendant No.4 further pleaded that wife of 1st defendant namely Anasuyamma died on 16-12-2003 at Anantapur, the 1st defendant also died on 28-4-2009 and Wills came into force and acted

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upon. The 1st defendant performed marriage of 1st plaintiff, but the 1st plaintiff suppressed all the material facts with malafide intention, there were no joint family properties and they never in joint possession of suit properties. The defendant No.5 is well aware of the facts, but colluded with husband of plaintiff. The 1st plaintiff filed suit due to pressure and compulsion of her husband and died under suspicious circumstances as she was unable to bear harassment caused by her husband, and prays to dismiss the suit.

13.Basing on the above pleadings, the following issues are settled for trial :

(1) Whether the plaintiff is entitled for partition of her 1/6th share in the plaint schedule property ?

(2) Whether plaintiff is entitled for separate possession ?

(3) To what relief ?

14.During course of trial, 2nd plaintiff himself examined as PW.1,

Registered partition deed dt. 12-9-1977 marked Ex.A.1, certified copy of Registered partition deed dt. 6-12-1963 marked Ex.A.2. On behalf of the defendants, 2nd defendant himself examined as DW.1 and their witness is examined as DW.2, and 3rd defendant examined as DW.4, 4th defendant herself examined as DW.5, got marked Esx.B.1 to B.27 as referred in the appendix.

15.Heard both sides. Perused record.

16.ISSUE Nos.1 and 2 :

(1) Whether the plaintiff is entitled for partition of her 1/6th share in the plaint schedule property ?

(2) Whether plaintiff is entitled for separate possession ?

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17.The plaintiffs claiming that suit schedule properties are ancestral and joint family properties of 1st plaintiff and defendants 1 to 5, and they are in possession and enjoyment of suit schedule properties. The plaintiffs also claiming that defendants 1, 3 have been managing suit schedule properties, but the plaintiff contemplated that 1st defendant is acting detrimental to the interest of the 1st plaintiff, for which she filed suit for partition and separate possession of her 1/5th share.

18.To prove their contention, 2nd plaintiff himself examined as PW.1 and he stated that 1st defendant got suit schedule property under registered partition deeds dt. 6-12-1963 Ex.A.2 and 12-9-1977 Ex.A..7 in the partition of joint family properties between 1st defendant and his father and brothers. The 1st defendant also got other suit schedule properties in a partition took place between his brothers under registered partition deed dt. 12-9-1977. PW.1 further testified that suit schedule properties are self acquired properties of 1st defendant and his father and all the properties are acquired with joint family income.

PW.1 further testified that defendants 1 and 3 have been managing the suit schedule properties, but the 1st defendant is contemplating to act detrimental to the rights of 1st plaintiff regarding suit schedule properties and postponing the partition on some pretext or other and for which the 1st plaintiff filed suit for partition.

19.During the course of cross-examination PW.1 admitted that suit schedule properties are not acquired by the 1st defendant, but he was under the impression that suit schedule properties are the properties of ancestors of Kesappa. PW.1 also admitted that they are not seeking

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partition of self acquired properties of Kesappa and not claiming share therein. PW.1 also admitted that after death of 1st defendant, his sons are enjoying suit schedule properties. PW.1 also admitted that his marriage was performed on 31-8-1992 and the marriage of 4th defendant is performed in the year 1993.

20.In addition to the oral evidence of PW.1, he filed certified copies of registered partition deed dt. 12-9-1977 marked Ex.A.1, copy of registered partition deed dt. 6-12-1963 marked Ex.A.2. The recitals of

Ex.A.2 reveals that there was a partition between Kesappa,

Chennakesavulu and Krishna Murthy, for all the properties of their father and 'B' schedule property fell to the share of Chennakesavulu, 'A' scheudle property fell to the share of Kesappa and 'C'; schedule proeprty fell to the share of Krishna Murthy, 'B' schedule property covered under Ex.A.2 consisting three items. The contents of Ex.A.1 also reveals that there was a partiton between Munemma,

Lakshmidevi, Kesappa, Chennakesavulu and Krishnamurthy, wherein 'C' schedule property covered under Ex.A.1 fell to the share of

Chennakesavulu,

21.On the other hand, the defence of the defendants is that suit schedule properties are self acquired properties of father of 1st defendant and there was a partition among the 1st defendant, his brother and their father under registered partition deed dt. 6-12-1963 and there was other partition among the 1st defendant and his brothers under registered partition deed dt. 12-9-1977 and the 1st defendant got suit schedule properties in the partition took place

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between himself and his brothers. The plaintiff has no right to claim any share in the suit schedule properties. It is also the defence of the defendants that 1st defendant executed Will dt. 27-2-2003 in favour of 2nd defendant bequeathing items 2, 3, 3A and a portion of item No.1 of suit schedule property in favour of 2nd defendant and the 1st defendant also executed another Will dt. 28-2-2003 in favour of 3rd defendant bequeathing item 2A and plot No.3 in T.S.No.2092/2A an extent of Ac.0-15 cents in item No.1 of suit schedule property and after the death of 1st defendant, defendants 2 and 3 became absolute owners of suit schedule properties covered under registered Wills and the plaintiff has no right to claim any share in the suit schedule properties.

22.In support of their contention, the 1st defendant himself examined as DW.1 and he stated that item No.1 of suit schedule property was purchased by his grandfather by name Chinna Kesappa in the year 1923 under document No.1466/1923. Item No.2 and 2A were constructed on a site purchased by Chinna Kesappa on 26-8-1926. Item No.3 and 3A are purchased by Chinna Kesappa on 20-7-1925 and he got building approved plan on 27-6-2003, item No.4 was occupied by Late Chinnappa in the year 1923 and constructed building and now it is in dilapidated condition. The site was fell to the lot of Chinna Kesappa in the year 1963 and in subsequent partition, item No.4 fell to the lot of 1st defendant and his elder son. The 1st defendant retained it while his brother alienated to third parties. They are all self acquired assets of Chinna Kesappa. Chinna Kesappa fell ill

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in the year 1963 and retained a portion of his properties for himself and his wife and distributed it to his sons.

23.DW.1 further testified that the 1st defendant executed two registered Wills dt. 27-2-2003, 28-2-2003 in favour of 2nd and 3rd defendants bequeathing the properties. Item No.4 of suit property and an extent of Ac.0-18 cents of land in item No.1 was reserved for daughters by the 1st defendant as their share, the defendants respected the sentiments of their father. DW.1 further testified that item 1 to 2A, 3, 3A are exclusive items of himself and 3rd defendant.

The suit of the plaintiff for partition is absolutely improper and liable to be dismissed in-limini.

24.In addition to his oral evidence, DW.1 also filed documents , they are marked Exs.B.1 to B.8. To prove the due execution of the Will dt.

27-2-2003 Ex.B.8 executed in favour of 2nd defendant, the defendants examined one of the attestors to the Will dt. 27-2-2003 as DW.2. He stated that during life time C.Chennakesavulu (D.1) executed registered Will on 27-2-2003, he is one of the attetstors along with

C.Padma/D.5. The said Will was drafted by D.Sudhakar on the instructions of the testator. Himself, Smt. Padma were present at the time of execution of the Will. The said Chennakesavulu signed on the

Will in her presence, himself and C.Padma attested the Will and it is presented to Sub-Registrar for registration at Anantapur.

25.The learned counsel for the plaintiffs cross-examined DW.1 and

DW.2 by put-forthing the defence of the plaintiffs, but nothing is

O.S.140/200512P.S.C.J.Court, Anantapuramu

elicited to disbelieve the evidence of DW.1 and DW.2 in respect of attestation of the Will dt. 27-2-2003 by DW.2 and execution of the Will by 1st defendant in favour of 2nd defendant under Ex.B.8.

26.The 3rd defendant also claiming that suit schedule properties are self acquired properties of his father and he bequeathed item 2A and plot No.3 in T.S.No.2092/2A and an extent of Ac.0-15 cents and a portion of item No.1 of suit schedule property under registered Will dt.

28-2-2003 marked Ex.B.15. In support of his contention, the 3rd defendant himself examined as DW.1 and he testified on the same lines as that of DW.2. He further stated that his father executed two registered Wills in favour of 2nd defendant and himself, the Will

dt. 28-2-2003 was drafted and typed by the scribe as per the

instructions of his father, after read over the contents his father signed on the Will in the presence of his younger sister Padma and

N.Ramakrishna, the Will was registered before Sub-Registrar, he acted as identifying witness along with Padma.

27.The attestor of Ex.B.15 is also examined as DW.4 and he stated that 1st defendant blessed with three daughters and two sons and informed him that he was intended to execute two Wills and executed

Will on 28-2-2003, himself attested the Will as second attestor and daughter of 1st defendant also signed as one of the attestors. The learned counsel for the plaintiff also cross-examined Dws.3 and 4, but nothing is elicited to disbelieve the evidence of DW.4 as to his attestation of Will dt. 28-2-2003 marked Ex.B.15.

O.S.140/200513P.S.C.J.Court, Anantapuramu

28.The defendant No.4 herself examined as DW.5 and she sated that suit schedule properties are self acquired properties of her father and her father bequeathed items 2, 2A, 3, 3A and an extent of Ac.0-15 cents each to defendants 2 and 3 under Exs.B.8, B.15 in favour of D.2,

D.3 respectively.

29.As seen from the pleadings and evidence, the admitted facts are that father of 1st defendant was the absolute owner of suit schedule properties as he got the same under partition took place between himself and his brothers under Ex.A.2. The evidence of DW.1 to DW.5 further reveals that there was a partition among the 1st defendant and his brothers in which the 1st defendant got suit schedule properties under Ex.A.1. The plaintiff claiming that the properties are inherited to 1st defendant from his father by name Chinna Kesappa and the same are ancestral properties of plaintiff and defendants and they are liable for partition. In support of their contention, the counsel for plaintiff relied upon a decision rendered between Shyam Narayana Prasad

Vs. Krishna Prasad and others (2018 (4) ALT 40 (SC), wherein it is held that :

“essential feature of ancestral property according to

Mityakshara Law is that the sons, grandsons, great

grandsons of the person who inherits it, acquire an

interest and rights attached to such property at the

moment of their birth.”

30.But, in the instant case, it is the contention of the defendants that the father of 1st defendant purchased properties under registered

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Will Deeds dt. 27-10-1923 under Ex.B.1 and registered Deed

dt. 26-8-1926 under Ex.B.2, registered sale deed dt. 20-7-1925 under

Ex.B.4. Though survey numbers to the property covered under Exs.B.1,

B.2, B.4 are different from that of the survey numbers shown in the suit schedule properties, but the defendants claiming that the survey numbers have been changed for time being as noted ion suit schedule survey numbers.

31.On the other hand, the plaintiffs not let any evidence to prove that father of 1st defendant inherited the suit schedule properties from his father i.e. great grandfather of 1st plaintiff. In the absence of any material evidence to substantiate the contention of the plaintiffs, it is not to accept the contention of the plaintiffs that suit schedule properties are ancestral properties of 1st defendant. On the other hand, when once the properties are purchased by father of 1st defendant by name Chinna Kesappa, it became his self acquired properties. Admittedly, under registered partition deed dt. 6-12-1963 and another partition deed dt. 12-9-1977, the 1st defendant got the suit schedule properties. When a property is fell to the share of any of the son from his father, it became the separate property or self acquired property of son i.e. 1st defendant. In such a case, the 1st defendant has right to dispose of the same as he wish. The children of 1st defendant not acquired any right by birth. As such, the contention of the plaintiffs that the suit schedule properties are ancestral properties cannot be accepted. The authority filed by the counsel for plaintiff is not applicable to the facts on hand.

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32.On the other hand, the contention of the defendants is that 1st defendant is absolute owner of suit schedule properties and he bequeathed item No.2 and plot No.1 in T.S.No.2092/2A an extent of

Ac.0-15 cents in item No.1 of suit schedule property in favour of 2nd defendant under registered Will dt. 27-2-2003. The evidence of DW.1 and DW.2 as to execution of registered Will dt. 27-2-2003 marked

Ex.B.8 is found reliable. Hence, the defendants proved due execution of Ex.B.8.

33.The other contention of the defendants is that item 2A and plot

No.3 in T.S.No.2092/2A and an extent of Ac.0-15 cents in item No.1 of suit schedule properties are bequeathed to 3rd defendant under registered Will dt. 28-2-2003 and after death of 1st defendant, the 3rd defendant became absolute owners and he is in possession and enjoyment of properties covered under Ex.B.15 also became absolute owner of suit schedule properties covered under Ex.B.8. The evidence of DW.3 to DW.5 as to due execution of the Will under Ex.B.8 and

Ex.B.15 are unrebutted. When once the 1st defendant is absolute owner of the suit schedule property, he is at liberty to dispose off his properties according to his wish and will. Merely because the 1st plaintiff is one of the daughters of 1st defendant, on that ground she has no right to claim any share in the self acquired properties of 1st defendant during his life time.

34.On the other hand, the plaintiffs not let any evidence to disbelieve the registered Wills executed by the 1st defendant in favour of 2nd defendant under Ex.B.8 and in favour of 3rd defendant under

Ex.B.15. The plaintiff also failed to let any cogent evidence to prove

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that suit schedule properties are ancestral properties and the 1st plaintiff was in joint possession along with the defendants. Hence, the plaintiffs are not entitled for the relief claimed for partition and separate possession. Issue Nos.1 and 2 decided against the plaintiffs.

35.Issue No.3 :

(3) To what relief ?

The plaintiffs failed to prove that the suit properties are ancestral properties and the 1st plaintiff was in joint possession and enjoyment along with the defendants. Hence, the plaintiffs are not entitled for partition and separate possession of suit schedule properties.

36.In the result, the suit is dismissed. In the circumstances, both parties do bear their own costs.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court on this the 25th day of June, 2019.

Prl. Senior Civil Judge, Ananthapuram.

Appendix of evidence

Witnesses examined for

Plaintiffs Defendants

PW.1 : Boda Srinivasa RaoDW.1 : C.Gnaneswar

DW.2 : K.Venugopal

DW.3 : C.Sudhakar

DW.4 : N.Ramakrishna

DW.5 : P.Subhashini

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Exhibits marked for plaintiffs

Ex.A.1:Certified copy of partition deed dt. 12-9-1977

Ex.A.2:Certified copy of partition deed dt. 6-12-1963

Exhibits marked for defendants

Ex.B.1:Certified copy of sale deed in favour of Chinna Kesappa

dt. 27-10-1923

Ex.B.2:Certified copy of sale deed in favour of Chinna Kesappa

dt. 26-8-1926

Ex.B.3:Cop of building plan approval in favour of Chinna Kesappa

dt. 15-4-1944

Ex.B.4:Certified copy of sale deed in favour of Chinna Kesappa

dt. 20-7-1925

Ex.B.5:Certified copy of building plan approval in favour of 1st defendant dt. 6-7-2003

Ex.B.6:Certified copy of partition deed dt. 6-12-1963

Ex.B.7:Certified copy of partition deed. Dt. 12-9-1977

Ex.B.8:Original Will in favour of 2nd defendant executed by 1st defendant dt. 27-2-2003

Ex.B.9:Death Certificate of C.Anasuyamma dt. 16-12-2003

Ex.B.10 :Death Certificate of C.Chennakesavulu dt. 28-4-2009

Ex.B.11 :Pattadar passbook issued in the name of Gnaneswar

Ex.B.12 :Letters said to have written by 1st plaintiff dt. 30-12-1992 and 18-12-1992 (as per the stamp affixed) collectively marked Ex.B.13 :Tax receipts pertaining to Door No.7-301 (six in number) collectively marked

Ex.B.14 :Tax receipts to the Door No.17-599/1 (nine in number) collectively marked

Ex.B.15 :Registered Will dt. 28-2-2003

Ex.B.16 :Pattadar passbook issued in the name of Chippagiri Sudhakar

Ex.B.17 :Copy of adangal obtained through meeseva for the fasli 1428 in Sy.No.745/5

Ex.B.18 :House tax receipts to the Door NBo.7/302

Ex.B.19 :House tax receipts to the Door No.17/600

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Ex.B.20 :Water charge receipt to the house Door No.17/600

Ex.B.21 :Water charge receipt to the house Door No.7/302

Ex.B.22 :Attested copy of F.I.R and altered F.I.R. in Cr.No.6/2015 of Eluru III Town P.S. collectively marked

Ex.B.23 :Attested copy of intimation of accident and injuries to the police

Ex.B.24 :Attested copy of alteration memo dt. 20-3-2018

Ex.B.25 :Attested copy of charge sheet in Cr.No.6/2013 of Eluru III Town P.S.

Ex.B.26 :Attested copy of inquest report to the dead body of Bola Sreedevi

Ex.B.27 :Attested copy of postmortem report of Bola Sreedevi

Prl. Senior Civil Judge, Ananthapuram.

O.S.449/20161P.S.C.J.Court, Anantapuramu

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::

ANANTHAPURAMU

PRESENT:- Sri P.Tirumala Rao,

Principal Senior Civil Judge, Ananthapuramu

Saturday, the 22nd day of June, 2019

ORIGINAL SUIT No.449/2016

Between :

1. Bandaru Santhamma, w/o Late Manikyam, 49 years, Hindu, Housewife, R/o 2/60, Kannampalli (v), Garladinne (M)

2. Bandaru Mahesh, s/o Late Manikyam, 30 years, Hindu, Coolie, R/o 2/60, Kannampalli (v), Garladinne (M)

3. Bandaru Umadevi, d/o Late Manikyam, 49 years, Hindu, Housewife, R/o 2/60, Kannampalli (v), Garladinne (M)

4. Bandaru Priyanka, w/o C.Nagaraju, 24 years, Hindu, Housewife, R/o Yenumula Palli (v),

Puttaparthi (M)... Plaintiffs

And

1. The Chief General Manager (Operation), Andhra Pradesh Southern Power Distribution- Company Limited, 2nd Floor, Vidyuth Bhavan, Near R.T.C. Bus-stand, Kurnool

2. The Superintending Engineer, Andhra Pradesh Southern Power Distribution- Company Limited, Ananthapuramu

3. Addl. Assistant Engineer, Andhra Pradesh Southern Power Distribution-

Company Limited, Garladinne... Defendants

This suit coming on 12-6-2019 for final hearing before me in the presence of Sri B.Narayanappa, Sri S.Mohammed Hafeezullah,

Advocates for the plaintiffs and of Sri N.Ravikumar Reddy, Advocate for the defendants, and upon perusal of the available material on record this court delivered the following :-

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J U D G M E N T

1.The plaintiffs Nos.1 to 4 filed suit for compensation against the defendants 1 to 3 for the death of husband of 1st plaintiff due to electrocution, alleging as follows :

2.That the husband of 1st plaintiff by name Bandaru Manikyam, s/o Bheemanna was aged about 54 years, resident of Kanumpalli and he is an agriculturist and expert in agriculture work. He own agriculture land an extent of Ac.0-50 cents, Ac.2-13 cents, Ac.1-64 cents in Sy.No.366/3a, 366/2 and 392/2 of Kanampall village of

Garladinne Mandal. The said Bandaru Manikyam was sole bread winner of his family. The 1st plaintiff is the wife, 2nd plaintiff is the son, plaintiffs 3 and 4 are daughters of Bandaru Manikyam. On 22-6-2015 at 6-30 A.M., said Bandaru Manikyam tried to switch off the street lights situated in front of his house. He touched the starter box to switch off the street lights, in which the incoming terminal wire was damaged and touched the inner side of the starter box which was short circuited. The 1st plaintiff tried to rescue her husband, but in vain due to contact of the live wire from starter box, the said Bandaru Manikyam died on the spot at Pole No.2, SS-6 Ph KVA DTR. The persons present there namely Sri Ramulu, Nagaveni called 108 ambulance and the staff of ambulance informed that he died.

3.The plaintiffs further pleaded that basing on the report of the 1st plaintiff, a case in Cr.No.62/2015 for the offence u/s.174 Cr.P.C. was came to be registered. Inquest was held over the dead body of

Bandaru Manikyam and sent dead body for Post Mortem examination.

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It is further pleaded that the deceased died due to short circuit that was occurred due to negligence and carelessness of the defendants authority. The defendants failed to maintain proper supply in proper method. The defendants totally failed to take proper safety steps, due to death of Bandaru Manikyam, the plaintiffs lost love and affection and personal care. The plaintiffs got issued legal notice to the defendants claiming compensation, same was served on defendants, but failed to comply the demand. Hence, the suit for claiming compensation of Rs.12,00,000/-.

4.On the other hand, the 2nd defendant filed his written statement and defendants 1 and 3 adopted the same. They denied the plaint allegations. They further pleaded that this court has no jurisdiction to entertain the suit on the ground special court is constituted under

Indian Electricity Act and the suit has to be presented before that court and suit is liable to be dismissed. The defendants further pleaded that the plaintiffs not filed any documents in support of monthly income, and the amount of compensation claimed by the plaintiffs is highly excessive and baseless. It is also pleaded that there is no negligence on the part of the defendants and the accident occurred due to negligence on the part of the deceased.

5.It is further pleaded that it is not the duty of the deceased to switch off the street lights and it is the duty of the Panchayat staff and the defendants are no way concerned to that. The department maintains lines in good and proper condition, the deceased while attending switch off the street lights situated in front of his house, has touched the starter box of water works in which incoming terminal wire

O.S.449/20164P.S.C.J.Court, Anantapuramu

has touched the inner side of the starter box and was short circuited and died. It is also pleaded that the panchayat used to look after the street lights and water works service and the defendants are not responsible for the death of the deceased and they prays to dismiss the suit.

6.Basing on the above pleadings, the following issues are settled for trial :

(1) Whether there is negligence on the side of the defendant department which led to accident ?

(2) Whether the age and income of the deceased is correct ?

(3) Whether the plaintiff is entitled for the suit claim ?

(4) To what relief ?

7.During course of trial, the 1st plaintiff herself examined as PW.1, attested copy of F.I.R., Inquest Report, Post Mortem Report marked

Exs. A.1 to A.3 respectively. Office copy of legal notice sent to D.1 to

D.3 along with acknowledgments marked Exs.A.4 to A.6 respectively.

Plaintiff witness examined as PW.2. On behalf of the defendants,

Assistant Engineer of defendants' authority is examined as DW.1 and no documents marked for defence.

8.Heard both sides. Perused record.

9.ISSUE Nos.1 to 3 :

(1) Whether there is negligence on the side of the defendant department which led to accident ?

(2) Whether the age and income of the deceased is correct ?

(3) Whether the plaintiff is entitled for the suit claim ?

O.S.449/20165P.S.C.J.Court, Anantapuramu

10.The plaintiffs claiming that husband of 1st plaintiff died due to electrocution that was due to negligence of the defendants and they are liable for payment of compensation of Rs.12,00,000/-.

11.On the other hand, the defence of the defendants is that there is no negligence on the part of the defendants, and the deceased

Bandaru Manikyam died due to his own negligence while switching off the street lights. Hence, it is for the plaintiffs to prove negligence on the part of the defendants for causing death of Bandaru Manikyam and the plaintiffs are entitled for compensation claim of Rs.12,00,000/-.

12.To prove their suit claim, the 1st plaintiff herself examined as

PW.1 and stated that on 22-6-2015 at about 6-30 A.M., while her husband Manikyam was trying to switch off the street lights situated in front of their house, he touched the Starter Box to switch off the street light, in which incoming terminal wire was damaged and touched the inner side of the Starter box, which was short circuited and she tried to rescue her husband, but in vain, and due to contact of the live wire from starter box, her husband died on the spot. PW.1 further testified that a criminal case has been registered in Cr.No.62/2015 of

Garladinne P.S. for the offence u/s.174 Cr.P.C. and inquest was held over the dead body and Post Mortem was conducted. PW.1 further testified that death of her husband was due to negligence and carelessness of the defendants authorities and the defendants totally failed to maintain proper supply in proper method, failed to take proper safetysteps and her husband died due to negligent act of the defendants by lack of proper verification of the starter box and her

O.S.449/20166P.S.C.J.Court, Anantapuramu

husband was sole bread winner of their family and due to sudden demise of her husband, they are not in a position to recover from the shock and there is no parental care to the plaintiffs 2 to 4. PW.1 further testified that they got issued legal notice dt. 16-8-2016 demanding compensation from the defendants, but they failed to comply the demand and they filed suit and prays to decree the suit. In addition to the oral evidence, PW.1 also filed attested copy of F.I.R.

dt. 22-6-2015 marked Ex.A.1, attested copy of inquest of Manikyam

dt. 22-6-2015 marked Ex.A.2, attested copy of Post Mortem report of

Manikyam dt. 22-6-2015 marked Ex.A.3, office copy of legal notice

dt. 16-8-2016 issued to defendants 1 to 3 marked Exs.A.4 to A.6

respectively.

13.The witness for plaintiffs examined as PW.2 and she stated that

Bandaru Manikyam was husband of 1st plaintiff. PW.2 further testified that on 22-6-2015 at about 6-30 A.M., while Bandaru Manikyam was trying to switch off the street lights situated in front of his house, he touched the starter box, in which incoming terminal wire was damaged, due to which he was electrocuted and PW.1 tried to rescue him, but in vain, and due to contact of the live wire from starter box the deceased died on the spot. PW.2 further testified that Bandaru

Manikyam was an agriculturist and he is an expert in agriculture work and the deceased family is having agricultural lands measuring Ac.0-50 cents, Ac.2-13 cents and Ac.1-64 cents in Sy.Nos.366-3A, 366-2 and 392-2 of Kanampalli village respectively, and the deceased was sole bread winner of the family and the plaintiffs are depending on the income of the deceased, and due to sudden demise of the deceased

O.S.449/20167P.S.C.J.Court, Anantapuramu

the plaintiffs are suffering a lot. PW.2 further testified that deceased died due to electrocution that was due to short circuit and incident occurred due to negligence and carelessness of the defendants authority.

14.On the other hand, the defence of the defendants 1 to 3 is that there is no negligence on the part of the defendants and deceased died due to his own negligence and defendants are not liable for payment of compensation. In support of their contention, Assistant

Engineer of the defendant company is examined as DW.1 and he stated that there is no negligence on the part of the defendants and deceased died due to his own negligence and defendants are not liable for payment of compensation. DW.1 further testified that the deceased died while trying to switch off the street lights in which incoming terminal wire damaged and touched the inner side of the starter. DW.1 further testified that the department will maintain lines in good conditions and according to rules and the department staff are having routine supervising of the lines and if there is any complaint, the department staff will attend the said problem. There is no negligence on the part of the defendants, they are not liable to pay compensation. The compensation claimed is excessive, there is no negligence on the part of the defendants, the defendants are not liable for payment of compensation, the suit is liable to be dismissed.

15.The learned counsel for the plaintiffs submits that deceased

Manikyam died due to negligence of defendants authority and they are required to inspect the service connections frequently, but they failed

O.S.449/20168P.S.C.J.Court, Anantapuramu

to comply the same. He further submits that the deceased was aged about 54 years, the wife and children of deceased lost love and affection that cannot be fulfilled by any amount of compensation. He further submits that the deceased was contributing entire income for the family maintenance. He further submits that it is the duty of defendants to maintain proper, regular and sufficient electricity supply, but the department failed to maintain the wires properly that causes electrocution leading to death of the deceased Bandaru Manikyam, and prays to award compensation of Rs.12,00,00/-.

16.The learned counsel for the defendants submits that there is no negligence on the part of the defendants and the deceased died due to his own negligence and the defendants are not liable to pay any compensation. He further submits that switching off the street lights is the duty of the Panchayat staff and the deceased tried to switch off the street lights and touched the starter box in which incoming terminal wire was damaged and touched the inner side of the starter box, and department is not liable for any damages or compensation, and prays to dismiss the suit.

17.As seen from the evidence available on record, the undisputed facts are that the deceased Bandaru Manikyam died due to electrocution. It is also not in dispute that while Bandaru Manikyam tried to switch off the street lights, touched the starter box in which incoming terminal wire was damaged and touched the inner side of the starter box and died due to electrocution. The plaintiffs claiming that there is negligence on the part of the defendants 1 to 3 to maintain the

O.S.449/20169P.S.C.J.Court, Anantapuramu

lines in proper condition properly, but they failed to do the same and they are liable for compensation.

18.The Hon'ble Supreme Court in M.C.Mehta v. Union of India, it is held that :

“where an enterprise is engaged in a

hazardous or inherently dangerous activity and

harm is caused on any one on account of the

accident in the operation of such activity, the

enterprise is strictly and absolutely liable to

compensate those who are affected by the accident;

such liability is not subject to any of the exceptions

to the principle of strict liability under the rule in

Rylands v.Fletcher.

19.In another decision of the Hon'ble Apex Court in M.P. Electricity

Board Vs. Shail Kumari and others (2002 (2) SCC 162), wherein it is held that :

“It is an admitted fact that the responsibility to

supply electric energy in the particular locality was

statutorily conferred on the Board. If the energy so

transmitted causes injury or death of a human

being, who gets unknowingly trapped into it the

primary liability to compensate the sufferer is that

of the supplier of the electric energy. So long as the

voltage of electricity transmitted through the wires

is potentiality of dangerous dimension. The

managers of its supply have the added duty to take

all safety measures to prevent escape of such

energy. Authorities managing such commodities

have extra duty to check out measures to prevent

such things.”

O.S.449/201610P.S.C.J.Court, Anantapuramu

It is further held that :

“Even assuming that all such measures have

been adopted, a person undertaking an activity

involving hazardous or risky exposure to human

life, is liable under law of torts to compensate for

the injury suffered by any other person,

irrespective of any negligence or carelessness on

the part of the managers of such undertakings.”

20.In the instant case, the plaintiffs claiming compensation of

Rs.12,00,000/- from the defendants 1 to 3 on the ground that the deceased has been earning considerable income on agricultural work.

But, the plaintiffs not let any cogent evidence in proof of annual or monthly income of deceased Bandaru Manikyam. However, during course of arguments, the counsel for plaintiffs filed written arguments stating that the deceased was contributing his income for his family maintenance. Admittedly, as per Exs.A.1 to A.3, age of the deceased as on the date of his death was 54 years and there is no chance of his increase of his income and he is expected to earn Rs.10,000/- per month from his agriculture. Admittedly, the plaintiffs 1 to 3 are dependents on the deceased Bandaru Manikyam, they lost love and affection of the deceased and there is no other source of their maintenance. The 1st plaintiff is wife and plaintiffs 2 to 4 are children of deceased and the 1st plaintiff lost her future due to sudden demise of her husband. By taking into consideration of the dependency of the plaintiffs on the earnings of the deceased Bandaru Manikyam, awarding compensation of Rs.4,00,000/- would meet the ends of

O.S.449/201611P.S.C.J.Court, Anantapuramu

Justice. Hence, plaintiffs are entitled for compensation of

Rs.4,00,000/-. Issues 1 to 3 are decided accordingly.

21.Issue No.4 :

(4) To what relief ?

The plaintiffs proved that the deceased Bandaru Manikyam died due to electrocution. Therefore, defendants are liable to pay compensation under the principle of strict liability. Hence, plaintiffs are entitled for compensation of Rs.4,00,000/-.

22.In the result, the suit is decreed partly with costs directing the defendants 1 to 3 to pay compensation of Rs.4,00,000/- to the plaintiffs with interest at the rate of 12 % per annum from the date of filing the suit till the date of decree and thereafter at 6 % per annum till realization on the principal sum adjudged of Rs.4,00,000/-. Since the plaintiffs are class-I heirs, they are entitled for compensation amount equally.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open court on this the 22nd day of June, 2019.

Prl. Senior Civil Judge, Ananthapuram.

Appendix of evidence

Witnesses examined for

Plaintiffs Defendants

PW.1 : B.Santhamma DW.1 : E.Sivaiah

PW.2 : B.Nallama

O.S.449/201612P.S.C.J.Court, Anantapuramu

Exhibits marked for plaintiffs

Ex.A.1:Attested copy of F.I.R. dt. 22-6-2015

Ex.A.2:Attested copy of Inquest dt. 22-6-2015

Ex.A.3:Attested copy of P.M. Report dt. 22-6-2015

Ex.A.4:Office copy of legal notice issued to D.1 with acknowledgment dt. 16-8-2016

Ex.A.5:Office copy of legal notice issued to D.2 with acknowledgment dt. 16-8-2016

Ex.A.6:Office copy of legal notice issued to D.3 with acknowledgment dt. 16-8-2016

Exhibits marked for defendants

- NIL -

Prl. Senior Civil Judge, Ananthapuram.

O.S.117/20161P.S.C.J.Court, Anantapuramu

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::

ANANTHAPURAMU

PRESENT:- Sri P.Tirumala Rao,

Principal Senior Civil Judge, Ananthapuramu

Friday, the 28th day of June, 2019

ORIGINAL SUIT No.117/2016

Between :

Chitra Ramanjaneyulu, s/o Narayanappa, aged 65 years, Retired Employee, Hindu, Residing at D.No.4-2-108, Near M.G. Petrol Bunk, Bypass Road,

Anantapur... Plaintiff

And

1. Karanam Gayathri, d/o K.Raghunatha Rao, Hindu, aged 41 years, D.No.21-120, Yadhava Nagar, Dharmavaram Town, Anantapur Dist.

2. Karanam Pavan Kumar, s/o K.Raghunatha Rao, Senior Assistant, Irrigation Department, Hindu, 42 years, Residing at D.No.6-1-407-A, Lakshmi Nagar, Anantapuram Municipal Corporation,

Anantapuram Town and Dist.... Defendants

This suit coming on 24-6-2019 for final hearing before me in the presence of Sri K.Viswanatha Reddy, Advocate for the plaintiff and of

Sri V.B.P. Teja, Smt. T.Varalakshmi Devi, Advocates for the defendant

No.1, Sri B.Ravi Prasad, Advocate for the defendant No.2, and upon perusal of the available material on record this court delivered the following :-

J U D G M E N T

1.The plaintiff filed suit for recovery of due under the promissory note dt. 26-12-2014, alleging as follows :

O.S.117/20162P.S.C.J.Court, Anantapuramu

2.That on 26-12-2014 the defendant Nos.1 and 2 borrowed a sum of Rs.5,00,000/- from the plaintiff agreeing to repay the same with interest at the rate of 18 % per annum and executed suit promissory note in favour of the plaintiff on the same day.

3.It is further pleaded that on 26-12-2014 the defendant paid

Rs.2,00,000/- and endorsed the same on the back side of the promissory note and the defendants are due only Rs.3,00,000/-. The plaintiff made several demands, but the defendants not paid due under promissory note. Hence, the suit.

4.On the other hand, the defendant No.2 filed his written statement, defendant No.1 filed memo adopting the written statement of defendant No.2, denied the plaint allegations and further pleaded that suit pronote is created for the purpose of filing the unjust suit and defendants are not at all due any amount to the plaintiff. Suit pronote is forged, fabricated and got up one. It is further pleaded that there is no need or necessity for the defendants to borrow such huge amount from the plaintiff. It is further pleaded that the allegation that the defendant made part payment of Rs.2,00,000/- on 26-12-2014 is also created one. When the defendants are not borrowed any amount, the question of payment of Rs.2,00,000/- does not arise, and pryas to dismiss the suit.

5.Basing on the above pleadings, the following issues are settled for trial :

(1) Whether the suit pronote is forged and fabricated document ?

O.S.117/20163P.S.C.J.Court, Anantapuramu

(2) Whether the suit pronote is supported by cash consideration ?

(3) Whether the plaintiff is entitled for the suit claim ?

(4) To what relief ?

6.During course of trial, the plaintiff himself examined as PW.1, and attestor of suit pronote examined as PW.2, suit pronote marked

Ex.A.1, endorsement marked Ex.A.2. On behalf of the defendants, none were examined and no documents are marked.

7.Heard counsel for plaintiff. Perused record.

8.ISSUE Nos.1 to 3 :

(1) Whether the suit pronote is forged and fabricated document ?

(2) Whether the suit pronote is supported by cash consideration ?

(3) Whether the plaintiff is entitled for the suit claim ?

9.To prove the due execution of the suit pronote, the plaintiff himself examined as PW.1 and stated that on 26-12-2014 the defendant Nos.1 and 2 borrowed a sum of Rs.5,00,000/- from him agreeing to repay the same with interest at the rate of 18 % per annum and executed suit promissory note in his favour on the same day. He further testified that on 26-12-2014 the defendant paid

Rs.2,00,000/- and endorsed the same on the back side of the promissory note and the defendants are due only Rs.3,00,000/-. He further stated that he made several demands, but the defendants not paid due under promissory note. The plaintiff witness examined as

PW.2 and stated that while he was at the house of plaintiff, defendants came to the house of plaintiff, the defendants asked the plaintiff for

O.S.117/20164P.S.C.J.Court, Anantapuramu

Rs.5,00,000/- from the plaintiff for their family necessities, and the plaintiff accepted to pay Rs.5,00,000/- to the defendants, the defendants received cash of Rs.5,00,000/- and the 2nd defendant scribed suit promissory note for Rs.5,00,00/-, affixed Re.1/- stamp and the defendants 1 and 2 signed on the suit promisory note as executents and himself attested the suit promissory note.

10.The learned counsel for the defendants cross-examined PWs.1 and 2 by put-forthing the defence of the defendants. However, it is elicited from PW.1 that he has not obtained signature of defendants on part payment endorsement. The amount was lend at 12-00 noon and he has been receiving pension of Rs.45,000/- per month and having other source of income. It is also elicited from PW.1 that defendants requested him to lend amounts since 3 to 4 months prior to the lending.

11.It is also elicited from PW.2 that he know the defendant since 6 years and he know the plaintiff since 20 years and the 2nd defendant scribed the suit promissory note and he was also present at the time of making endorsement. The counsel for the defendant not elicited any point to disbelieve the evidence of PW.1, PW.2 in support of their evidence as to execution of suit promissory note by the defendants 1 and 2 in favour of the plaintiff and passing of consideration.

12.On the other hand, the defendants not come forward to let any evidence in support of their contention. The defendants not offered any explanation for their silence. The main contention of the

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defendants is that suit pronote has been created by forging signatures of defendants. But, the defendants are not come forward to file any of their admitted signatures of contemporary period of suit pronote for examination with handwriting expert. However, the court compared signatures of defendants on their vakalat, on the written statement on served summons. All those signatures appears to be similar with that of the disputed signatures of the suit pronote. But, the defendant not come forward to let any rebuttal evidence to substantiate their contention. Hence, it can be inferred that defendants withhold their admitted signatures of contemporary period of suit pronote with an intention if they produced, it could be unfavourable to them. Hence, the contention of the defendants is found not reliable.

13.The evidence of PW.1 and PW.2 coupled with contents of Exs.A.1,

A.2, found reliable than the defence of the defendants. The plaintiff is able to prove that the suit pronote is executed by the defendants for consideration, but failed to pay the due under the promissory note.

Issue Nos.1 to 3 are decided in favour of the plaintiff and against the defendants.

14.Issue No.4 :

(4) To what relief ?

The plaintiff proved that the suit pronote is duly executed by the defendants in favour of the plaintiff for consideration and failed to pay the due under the suit promissory note. Hence, the plaintiff is entitled for the suit claim.

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15.In the result, the suit is decreed against the defendants 1 and 2 with costs for Rs.3,32,700/- with interest at 12 % per annum from the date of filing of the suit till the date of decree and thereafter at 6 % per annum till the date of realization on the principal sum adjudged of

Rs.3,32,700/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court on this the 28th day of June, 2019.

Prl. Senior Civil Judge, Ananthapuram.

Appendix of evidence

Witnesses examined for

Plaintiff Defendants

PW.1 : C.Ramanjaneyulu - NIL -

PW.2 : K.Gurappa

Exhibits marked for plaintiff

Ex.A.1:Suit promissory note executed by the defendant in favour of the plaintiff dt. 26-12-2014 for Rs.5,00,000/-

Ex.A.2:Endorsement on the reverse side of promissory note

Exhibits marked for defendants

- NIL -

Prl. Senior Civil Judge, Ananthapuram.

O.S.663/20141P.S.C.J.Court, Anantapuramu

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::

ANANTHAPURAMU

PRESENT:- Sri P.Tirumala Rao,

Principal Senior Civil Judge, Ananthapuramu

Friday, the 28th day of June, 2019

ORIGINAL SUIT No.663/2014

Between :

Cherukuri Lakshmi, w/o C.Lingamaiah, Hindu, 38 years, Housewife, B.K.Samudram Village and Mandal,

Anantapuramu Dist.... Plaintiff

And

Podaralla Lakshmaiah, s/o Parameswarappa, Hindu, 35 years, Business, B.K.Samudram Village and Mandal

Anantapuramu Dist... Defendant

This suit coming on 24-6-2019 for final hearing before me in the presence of Sri N.R.K. Mohan, Advocate for the plaintiff and of

Sri G.Srikanth, Advocate for the defendant, and upon perusal of the available material on record this court delivered the following :-

J U D G M E N T

1.The plaintiff filed suit for recovery of due under the two promissory notes dt. 18-11-2011 for Rs.50,000/- and Rs.25,000/- respectively, alleging as follows :

2.That on 18-11-2011 the defendant borrowed a sum of

Rs.50,000/- and Rs.25,000/- from the plaintiff agreeing to repay the same with interest at the rate of 24 % per annum and executed two promissory notes one for Rs.50,000/- and another for Rs.25,000/-. In

O.S.663/20142P.S.C.J.Court, Anantapuramu

spite of repeated demands of the plaintiff, the defendant has not made any payments either towards interest or principal. The plaintiff got issued legal notice d.t 11-11-2014 demanding the defendant to repay the amounts referred, but the defendant has not made any payments either towards interest or principal. Hence, the suit.

3.On the other hand, the defendant filed his written statement, denied the plaint allegations and further pleaded that the plaintiff is running chit funds business and the defendant is one of the subscribers and successful bidder, the plaintiff is in the habit of taking promissory notes from the successful bidders of the chit run transaction. In the same manner, the plaintiff taken the signatures of defendant on two promissory notes. After completion of entire chit,the defendant asked the plaintiff for return of the two promissory notes, but the plaintiff informed that same were misplaced and he undertakes to return after trace out. Reposing the confidence of plaintiff, the defendant never demanded the plaintiff about the suit promissory notes. There is no transaction as alleged by the plaintiff. It is further pleaded that the plaintiff misused the promissory notes, filed false suit for wrongful gain. There is no consideration under suit pronote except chit transaction, there were no demands or requests from the plaintiff, and prays to dismiss the suit.

4.Basing on the above pleadings, the following issues are settled for trial :

(1) Whether the suit pronote is supported by cash consideration ?

(2) Whether the plaintiff is entitled for the suit claim ?

(3) To what relief ?

O.S.663/20143P.S.C.J.Court, Anantapuramu

5.During course of trial, the plaintiff himself examined as PW.1, suit pronotes marked Exs.A.1, A.2, office copy of legal notice marked

Ex.A.3, postal acknowledgment marked Ex.A.4. On behalf of the defendant, none were examined, no documents marked in spite of opportunity given by adjourning the matter in 5 times.

6.Heard counsel for plaintiff. Perused record.

7.ISSUE Nos.1 and 2 :

(1) Whether the suit pronote is supported by cash consideration ?

(2) Whether the plaintiff is entitled for the suit claim ?

8.To prove the due execution of the suit pronotes, the plaintiff herself examined as PW.1 and stated that 18-11-2011 the defendant borrowed a sum of Rs.50,000/- and Rs.25,000/- from her agreeing to repay the same with interest at the rate of 24 % per annum and executed two promissory notes one for Rs.50,000/- Ex.A.1 and another for Rs.25,000/- Ex.A.2. In spite of repeated demands made by her, the defendant has not made any payments either towards interest or

principal. She got issued legal notice dt. 11-11-2014 demanding the

defendant to repay the amounts referred, but the defendant has not made any payments either towards interest or principal. The evidence of PW.1 has not been challenged by the defendant.

9.On the other hand, the defence of the defendant is that he was one of the subscribers of the chit conducted by the plaintiff and also successful bidder of the chit transaction. The further contention of the defendant is that the plaintiff obtained his signatures on two

O.S.663/20144P.S.C.J.Court, Anantapuramu

promissory notes as a security for the payment of future instalments of chit transactions and after completion of chit transaction, the defendant asked the plaintiff to return the promissory notes obtained by him, and the plaintiff did not return those pronotes and filed false suit. But, the defendant is not come forward to let any evidence in support of his contention. When once the defendant admits that he signed as an executent of the promissory notes that are obtained by the plaintiff, it shall be presumed that consideration has been passed under the instrument. It is for the defendant to prove that suit pronotes executed without passing consideration. But, the defendant is not come forward to let any rebuttal evidence to substantiate his contention. Hence, the contention of the defendant cannot be accepted.

10.On the other hand, the evidence of PW.1 coupled with contents of Exs.A.1 to A.4 are unchallenged. The plaintiff proved that suit prontoes are duly executed by the defendant in favour of the plaintiff for consideration and failed to pay the due under suit promissory notes.

11.Issue No.3 :

(3) To what relief ?

The plaintiff proved that the suit pronotes are duly executed by the defendant in favour of the plaintiff for consideration and failed to pay the due under the suit promissory notes. Hence, the plaintiff is entitled for the suit claim.

O.S.663/20145P.S.C.J.Court, Anantapuramu

12.In the result, the suit is decreed against the defendant with costs for Rs.1,29,000/- with interest at 12 % per annum from the date of filing of the suit till the date of decree and thereafter at 6 % per annum till the date of realization on the principal sum adjudged of

Rs.1,29,000/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court on this the 28th day of June, 2019.

Prl. Senior Civil Judge, Ananthapuram.

Appendix of evidence

Witnesses examined for

Plaintiff Defendant

PW.1 : C.Lakshmi - NIL -

Exhibits marked for plaintiff

Ex.A.1:Suit pronote dt. 18-11-2011 for Rs.50,000/-

Ex.A.2:Suit pronote dt. 18-11-2011 for Rs.25,000/-

Ex.A.3:Office copy of legal notice dt. 11-11-2014

Ex.A.4:Served acknowledgment

Exhibits marked for defendants

- NIL -

Prl. Senior Civil Judge, Ananthapuram.

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In the Court of :Prl. Senior Civil Judge, Anantapur

Case No. :OS/0000095/2011 Kapil Chit Funds private limited, Anantapur Vs T.Chandramouli

Date : 15-03-2021

Business: Judgment pronounced in Open Court (V.S.). In the result, the suit is decreed with costs for Rs. 1,85,830-00 with interest at 12 percent per annum Pendentlite and at 6 percent per annum till the date of realization of on Principal sum of Rs. 1,70,000-00 against the Defendant No.3,4 personally and against the estate of Defendant No.1 lying, if any, in the hands of Defendant Nos.5 and 6.The suit against Defendant No.2 is dismissed as abated. Nature of : DECREED WITH COSTS Disposal Disposal Date: 15-03-2021 Prl. Senior Civil Judge, Anantapur