APCH010000772017 1Fair Judgment in OS No.38/2017
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE,
(SENIOR DIVISION), CHITTOOR.
Present :- Smt.S.P.D.Vennela,
Additional Civil Judge,
(Senior Division) Chittoor.
Thursday, this the 03 rd (third) day of April, 2025
O.S.No.38 OF 2017
Between:
01.G.Purusotham Naidu, S/o late.K.Gurrappa Naidu, Hindu, aged about 67 years, Agriculturists, resident of Kokavandlavuru, H/o Murukambattu and at present residing at Door No.2-1278/1, B.V. Reddy Colony, Chittoor, Chittoor District.
02.C.Yogeswara Rao, S/o K.Nagabushanam, Hindu, aged about 32 years, Agriculturist and Employee, resident of Kokavandlavuru, H/o Murukambattu and at present residing at Door No.18, Selvaraj Building, Sarangapani Street, Sholinganalluru, Chennai – 600119.
… Plaintiffs
And:
01.Smt.K.Kamalamma, W/o late.K.Krishnama Naidu, Hindu, aged about 60 years, house wife, residing at Door No.32-762, Kokavandlavuru, H/o Murukambattu, Chittoor Mandal, Chittoor District.
02.Munirathnam Naidu (died) represented by the 3rddefendant Lalthamma (class-II of deceased D.2) son of not known to the plaintiff, Hindu, aged about 70 years, but care of Smt.K.Kamalamma, W/o late. K.Krishnama Naidu, Door No.32-762, Kokavandlavuru, H/o Murukambattu, Chittoor Mandal, Chittoor District.
03.Lalithamma, w/o Nageswara Rao, Hindu, aged about 35 years, working as Constable at Tirupathi, residing at 13-6-600/44/3A, Peddakapu Layout, Tirupathi.
APCH010000772017 2Fair Judgment in OS No.38/2017 (Legal representatives are already on record as per the orders dated 08.12.2022 in memo) ( * Amended as per orders in I.A No.278/2022 dated 01.02.2023 *) …… Defendants
This suit is coming on 17.03.2025 for final hearing before this court and upon hearing the arguments of Sri G.Vasantha Kumar and Sri D.K.Raghuram, Advocates for the plaintiffs and Sri V.Lokanadha Naidu, Advocate for defendants Nos.1 and 3 and Defendant No.2 have been died and having stood over for consideration till this day, this court made the following :
JUDGMENT
The plaintiffs filed this suit against the defendants to declare right and title of the 1st plaintiff over the plaint schedule – I of properties and to declare the right and title of the 2nd plaintiff over the plaint schedule-II of properties and to grant consequential relief of permanent injunction in favour of the plaintiffs restraining the defendants, their men and agents from interfering in any way with peaceful possession and enjoyment of the plaint schedule- I of properties of the 1st plaintiff and plaint schedule-II of properties of the 2nd plaintiff and to direct the defendants to pay the costs of the suit.
02.The brief averments of plaint are as follows:-
(a) The plaint schedule No.I belonging to the 1st plaintiff and the plaint schedule No.II belonging to the 2nd plaintiff. The 2nd plaintiff is the son of younger brother of the 1st plaintiff and the defendant No.1 is the sister-in-law of the 1st plaintiff and and senior-paternal-aunt of 2nd plaintiff and the defendant No.2 is the own elder brother of the 1st defendant and 3rd defendant is the daughter of another elder brother of the 1st defendant and the daughter of younger brother of the 2nd
APCH010000772017 3Fair Judgment in OS No.38/2017 defendant. 2nd defendant is at present staying along with the 1st defendant at the suit village Kokavandlavuru and the 3rd defendant also staying with the 1st defendant Kamalamma at suit village Kokavandlavuru, though she is working as constable at Tirupathi. The 1st defendant is acting to the advice and tunes of the defendants Nos. 2 and 3 and the 2nd defendant Munirathnam Naidu was died after filing the present suit and his wife predeceased him. The 1st plaintiff and his brothers got divided their properties under registered partition dated 11.03.1987 and since then there is no undivided hindu joint family and no hindu, undivided joint family properties.
(b)The schedule property No.I and II and other properties belonged to the deceased K.Krishnama Naidu, husband of the 1st defendant Kamalamma and during the life time, the deceased
K.Krishnaman Naidu has bequeathed his properties in sound disposing state of mind through a Will on 22.10.2013 in favour of the plaintiffs herein and his other brothers and his wife. The said Krishnama Naidu was died on 14.12.2013 at SVIMs Hospital, Tirupathi and on his death the Will dt. 23.10.2013 came into force and operation. Schedule-I of plaint schedule properties were referred as ‘C’ schedule and schedule-II of plaint schedule properties were referred as ‘D’ schedule in the said
Will dt. 23.10.2013. The 1st defendant Kamalamma was bequeathed some other property and not the suit schedule property and she was given the bank deposits in Sapthagiri Grameena Bank, Murukambattu
Branch and Bank of India, Chittoor and the bank balance of five accounts in State Bank of India, Chittoor. The RCC Building sitauted in
Kokavandlavuru of Murukambattu Revenue Accounts of Chittoor Mandal was given to 1st defendant with limited rights to enjoy till her life time and
APCH010000772017 4Fair Judgment in OS No.38/2017 then, the same has to be succeeded by the 2nd plaintiff C.Yogeswara Rao and the 2nd plaintiff C.Yogeswara Rao has to perform funeral obsequies ceremonies of testator and after the last breath of the 1st defendant also and these recitals are mentioned in the last Will and testament 23.10.2013.
(c) On the death of the testator, the father of the 2nd plaintiff by name K.Nagabushnamma Naidu has performed the said funeral ceremonies of the testator and the last Will and testament dt. 23.10.2013 came into force and operation and the plaintiffs are the absolute owners of the plaint schedule properties and the plaintiffs are having right, title and possession on the suit schedule property. The 1st defendant became hostile and started acting against to the interest of the plaintiffs on the schedule property and the plaintiffs questioned the defendants about their unlawful attempts. on 11.02.2017 ( 2nd Saturday) at about 9.30 A.M the defendants with their servants in the absence of the plaintiffs, have unlawfully cut and carried away the four standing tamarind trees, ten neem trees and green manure trees and on coming to know about the unlawful act of the defendants, in the evening on 11.02.2017 the plaintiffs questioned the defendants and they evaded to answer and threatened the plaintiffs to face dire consequences and the defendants are supported by large followers and the plaintiffs have no help with the village and the plaintiffs are not equal with the defendants. Hence the suit .
03.The defendant No.1 filed written statement and the same
was adopted by the defendants Nos. 2 and 3. The Brief averments
of written statement of defendant No.1 are as follows:
APCH010000772017 5Fair Judgment in OS No.38/2017
(a) The defendant No.1 filed written statement denying the material averments of the plaint. Further contends that the contents in paras Nos. 4 and 5 of the plaint are not in dispute and defendant No.1 and her husband K.Krishnama Naidu were used to live separately after the division of the joint family properties effected in the year 1987 without any relationship with the plaintiffs or other brothers of the husband of defendant No.1 and the plaintiffs and brothers of the husband of the defendant never looked the welfare of defendant No.1 and her husband at any point of time. Defendant No.1 and her husband have no issues to them, hence to take care in their last days, they were brought the 3rd defendant who is the daughter of elder brother of defendant No.1 by name P.Chengalraya Naidu, native of Gunthur Village in Bangaruplayma
Mandal at the age 03 years to her and defendant No.1 and her husband have educated the 3rd defendant expecting that she will take care of defendant No.1 and her husband at their old ages and later the 3rd defendant was joined in A.P Police in the year 2005 and now working as
Home Guard in Alipri P.S Tirupathi town for the past ten years.
(b)During the last days of the husband of defendant No.1, the 3rd defendant alone has taken the care of her husband at SVIMS,
Hospital, Tirupathi and except that either the plaintiffs or other brothers of the husband of defendant No.1 never looked the welfare of the husband of defendant No.1 at any point of time during his life time and the husband of defendant No.1 had no even mercy or sympathy towards the plaintiffs or other alleged legatees under the above said unregistered Will
dated 23.10.2013 during his life time. During the life time of the husband
of defendant No.1, he never bequeathed his properties in favour of any body much less infavour of the plaintiffs and others as mentioned in the
APCH010000772017 6Fair Judgment in OS No.38/2017 suit un-registered Will dated 23.10.2013 and he never executed the same while he was in sound disposing state of mind and the said Will dt.
23.10.2013 is a forged and fabricated document created by the plaintiffs with the help of attestors to knock away the entire properties of defendant No.1 after the death of husband of defendant No.1 and filed this vexatious suit with malafide intention to grab the properties of defendant No.1 i.e., plaint schedule properties and other properties.
(c) The husband of defendant No.1 K.Krishnamma Naidu was died intestate leaving behind defendant No.1 as his sole legal heir to succeed his entire estate including the plaint schedule properties and after the death of husband of defendant No.1, the revenue authorities taking into consideration of the title and possession of defendant No.1 have mutated the name of defendant No.1 as absolute owner in the place of her husband and issued the 1-B extra and adangals in favour of defendant No.1 and the plaintiffs are never in possession and enjoyment of the plaint schedule properties at any point of time and the plaintiffs have no right, title or possession over the plaint schedule properties and defendant No.1 is the absolute owner of the plaint schedule properties and the plaintiffs have not filed any document to show their title and possession over the plaint schedule properties and the plaintiffs are not entitled for any of the reliefs prayed in this suit and the entire pleadings of the plaintiffs are all concocted for the purpose of filing of this suit and hence, prayed to dismiss the suit.
04. Basing on the above pleadings the learned predecessor of this court has framed the following issues for trial on 20.10.2020.
01.“Whether the Will executed by K.Krishnama Naidu dated 23.10.2013 in favour of plaintiffs is true and valid
APCH010000772017 7Fair Judgment in OS No.38/2017 document”?
02.“Whether the 1st plaintiff is owner of schedule-I properties and second plaintiff is owner of schedule-II properties”?
03.“Whether the plaintiffs are absolute owners of plaint schedule-I properties and plaint schedule- II properties respectively”?
04.“ Whether the plaintiffs Nos. 1 and 2 are entitled for declaration of plaint schedule I and plaint schedule II properties as prayed for”?
05.“Whether plaintiffs are entitled for perpetual injunction restraining the defendants, their men and agents from in any way interfering with peaceful possession and enjoyment of plaint schedule properties”?
06.“ To what relief”?
05. During the course of trial, the 1st plaintiff himself examined as PW.1 and got marked Ex.A.1 to Ex.A.7 and three more witnesses examined as PW.2 to PW.4. The 3rd defendant examined as DW.1 and got marked Ex.B.1 and Ex.B.2 .
06. Heard the arguments of learned counsels appearing for the plaintiff and the defendants. Perused the record and written arguments filed on behalf of the plaintiffs.
07.Issues Nos. 1 to 5 :
01.“Whether the Will executed by K.Krishnama Naidu dated 23.10.2013 in favour of plaintiffs is true and valid document”?
APCH010000772017 8Fair Judgment in OS No.38/2017
02.“Whether the 1st plaintiff is owner of schedule-I properties and second plaintiff is owner of schedule-II properties”?
03.“Whether the plaintiffs are absolute owners of plaint schedule-I properties and plaint schedule-II properties respectively”?
04.“Whether the plaintiffs Nos. 1 and 2 are entitled for declaration of plaint schedule I and plaint schedule II properties as prayed for”?
05.“Whether plaintiffs are entitled for perpetual injunction restraining the defendants, their men and agents from in any way interfering with peaceful possession and enjoyment of plaint schedule properties”?
Issues Nos. 1 to 5 are inter-related, hence discussed together as follows:
08.The plaintiffs filed this suit for declaration of right and title of the 1st plaintiff over the schedule No.1 of the plaint schedule property and to declare the right and title of the 2nd plaintiff over the schedule No.II of plaint schedule property and consequential relief of permanent injunction.
The 1st defendant filed written statement and defendants Nos.2 and 3 adopted the same.
09. Admitted facts are that one K.Krishnama Naidu is the husband of the 1st defendant and the said Krishnama Naidu, the 1st plaintiff and father of the 2nd plaintiff and one K.Prakash Naidu, K.Narasimhulu Naidu,
G.Ekambaram Naidu are the children of K.Gurrappa Naidu and
Sankaramma. Further admittedly, the parents of the 1st plaintiff were died and the 1st plaintiff and his brothers got divided their properties under registered partition deed dated 11.03.1987 and the plaint schedule properties belongs to the husband of the 1st defendant. Further,
APCH010000772017 9Fair Judgment in OS No.38/2017 admittedly the 2nd defendant is the elder brother of the 1st defendant and the 3rd defendant is the daughter of another elder brother of 1st defendant.
Further admittedly the said Krishnama Naidu and 1st defendant have no children.
10.The main contention of the plaintiffs is that the husband of the 1st defendant executed a Ex.A.4-Will dated 23.10.2013 bequeathing the plaint schedule No.I in favour of the 1st plaintiff and plaint schedule
No.II in favour of the 2nd plaintiff which are shown as ‘C’ and ‘D’ schedule properties in the said Will and the said Krishnama Naidu husband of the 1st defendant was died on 14.12.2013 and the Ex.A.4-Will came into force and as per the Will the plaintiffs Nos. 1 and 2 and other legatees of the
Will are in possession and enjoyment of the said properties including the 1st defendant, but on 11.02.2017, the defendants highhandedly cut and carried out standing trees in the schedule property and threatened the plaintiffs, hence, filed this suit.
11.On the other hand, the 1st defendant filed written statement admitted the relationship with the plaintiffs and other defendants and denied the execution of the Will by the husband of the 1st defendant in favour of the plaintiffs and further pleaded that the said Ex.A.4-Will is forged and fabricated and the 1st defendant alone is the legal heir of her husband and she is the absolute owner of the plaint schedule properties and other properties and prayed to dismiss the suit.
12.To establish the case of the plaintiffs, the 1st plaintiff examined as PW.1 and got marked Ex.A.1 to Ex.A.7. On behalf of the plaintiffs, the 1st attestor of the Ex.A.4-Will examined as PW.2. The scribe
APCH010000772017 10Fair Judgment in OS No.38/2017 of the Ex.A.4-Will examined as PW.3 and one M.Yuvaraj, 3rd party to the suit proceedings examined as DW.4.
13. PW.1 filed chief-affidavit by reiterating the contents of the plaint. PW.1 deposed during his cross-examination is that “his elder brother Ekambaram Naidu is alive and his another elder brother
K.Narasimha Naidu was died and his younger brothers K.Nagabhushnam
Naidu and K.Prakash Naidu are alive and himself and Yogesh filed this suit and he filed this suit for the lands in Sy.No.24/3 of Murakambattu
Accounts, 30/1 of Thimmasamudram village accounts and Sy.No.122/1 of
Murakambattu accounts and he was not present at the time of preparation of Ex.A4 Will and the executant of Ex.A4 Will has not signed
before him in Ex.A4 and 1st defendant issued Ex.A4 to him and he do not
know about the suit in OS.No.390/2008 and he do not remember whether he applied Ex.A1 and Ex.A2 in Sub Register Office prior to filing of this suit and the attestors of the Ex.A4 attended for the death ceremony of
Krishnama Naidu and on that day they informed to him about their attestation in Ex.A4 Will and he do not remember whether he has gone through the contents of written statement filed by 1st defendant and he do not know whether the lands covered under Ex,.A4 Will are stands in the name of 1st defendant till date and he has not filed any revenue records to show that the beneficiaries under Ex.A4 Will taken the possession of the lands as mentioned in the Ex.A4 Will and he did not mention in the plaint in which schedule of property the trees are cut down by the defendant and he did not enquire to any one where Ex.A4 was prepared and Ex.A4
Will was drafted on 23.10.2013”.
14. Further Pw.1 deposed that the 3rd defendant is working as
Police constable at Tirupati and he did not file any documents to show
APCH010000772017 11Fair Judgment in OS No.38/2017 that he is in possession of the 1st schedule of plaint schedule property and he is in possession of original of register sale deed, dt.27.04.2011 (Ex.A3) and as he do not remember that original registered sale deed is with him, he obtained certified copy and filed as Ex.A3 and Kamalamma (1st defendant) is residing alone in the house after death of her husband and even after death of his elder brother he used to visit the house of 1st defendant.”
15.PW.2 filed chief-affidavit supporting the case of the plaintiffs that the husband of the 1st defendant Krishnama Naidu has executed the
Will in favour of the plaintiffs and his other brothers and 1st defendant on 23.10.2023 and he is the 1st attestor of the said Will and one L.Bhaskar
Naidu is the 2nd attestor of the Will and the said Krishnama Naidu had signed on the said Will in their presence and Krishnama Naidu died on 14.12.2013 at SVIMS Hospital, Tirupathi and his obsequies was conducted on 24.12.2013 at his house and on that day, the said Will
dated 23.10.2013 was given by his wife-K.Kamalamma in his presence
and relatives to the Purushotham Naidu and the death ceremony of
Krishnama Naidu was performed by his brother K.Nagabhushanam as per the desire of the deceased.
16.PW.2 deposed during his cross-examination is that “court issued summons to him and as such he is giving evidence (no summons issued to the witness) and he is deposing evidence at request of the counsel for the plaintiff and the 1st plaintiff is his friend since his childhood and the counsel appearing for the plaintiff has prepared his chief affidavit and he has signed on it and he has gone through the contents of the chief affidavit and he has signed on it and he has not given any instructions to the counsel to prepare his chief affidavit and he do not
APCH010000772017 12Fair Judgment in OS No.38/2017 know whether he might have filed 20 to 30 cases on behalf Ashtalakshmi
Finance and he would have filed minimum 10 cases on behalf of
Ashtalakshmi Finance for the past 20 years and he do not remember whether the 1st plaintiff has deposed evidence in the suits filed on behalf of Ashtalakshmi Finance as he signed as attestors in the promissory notes”.
17. Further Pw.2 deposed that “he is the one of the accused in
Cr.No.66/2012 of Penumur Police Station for the offences punishable
U/sec. 447, 341, 323 r/w 506 of IPC and the said case was closed long back and he is the one of the accused in Cr.No.61/2012 of Penumur
Police Station for the offences punishable U/sec. 326 r/w 34 of IPC and the said case was closed long back and he is the one of the accused in
Cr.No.23/2013 of Penumur Police Station for the offences punishable
U/sec. 448, 323 r/w 34 of IPC and the said case was closed prior to 10 years and there are 5 schedules in the plaint schedule and he can not say survey numbers of the plaint schedule properties and the husband of 1st defendant Krishnama Naidu was 5 years older than him and the husband of 1st defendant Krishnama Naidu was also his friend and except in Ex.A4 he has not signed as attestor at any time in the documents relating to the family of the 1st defendant and Ex.A4 was prepared by a document writer near Sub Registrar office, Greamspet at afternoon hours and at that time
Krishnama Naidu, himself, Bhaskar Naidu (Died), the scribe Gajendra
Kumar were present and it was prepared in 2 hours and Krishnama
Naidu took him and he do not know whether he has given any documents to prepare the Ex.A4 Will and the document writer read over the contents of Ex.A4 Will to him and he has signed on it and it might be true that as per Hindu custom a widow on the 11th day ceremony she will not talk to
APCH010000772017 13Fair Judgment in OS No.38/2017 any one and she will not come out from the house and on the date of 11th day ceremony i.e., on 24.12.2013 after completion of lunch the 1st defendant herself handed over the Will to the Purushotam Naidu.”
18.PW.3 deposed during his chief examination is that “ he is working as Document writer, Sub Registrar office at Greamspet, Chittoor since 20 years and he used to prepare documents as per the instructions given by parties and the signature shown to him on Ex.A4 is that of him and he prepared the said document shown to him and (Witness shown
Ex.A4 Will) and the attestors have signed on Ex.A4 Will in his presence and Krishnama Naidu also signed in his presence and at the instructions of Krishnama Naidu he prepared Ex.A4 Will on 23.10.2013”.
19. PW.3 deposed evidence during his cross-examination is that “he has no license to work as document writer and he is having office at
Sub Registrar office, Chittoor since 10 to 15 years and his father also worked as document writer and his father was died about 10 years back and the NJ stamps are available in the Sub Registrar office or to the private persons and he himself typed Ex.A4 document in his computer and generally they used to mention the date, month and year in words also and in Ex.A4 in the first line in words it was mentioned as Two thousand fifteen and it is typographical mistake and he read over the contents of Ex.A4 Will to the parties and he has given proof of the Ex.A4
Will to the Krishnama Naidu and he do not know whether the 1st plaintiff was present and has given proof of the Ex.A4 Will to the Krishnama
Naidu and he do not have idea of time when he prepared proof of Ex.A4
Will. The proof of Ex.A4 Will was prepared on the previous date and he do not have idea the time when he got printed Ex.A4 Will and Krishnama
Naidu alone came to him to receive proof of Ex.A4 Will and he prepared
APCH010000772017 14Fair Judgment in OS No.38/2017 proof of Ex.A4 Will in 2 to 3 hours and generally they will give preference to prepare the documents which are going for registration and then only they will prepare other documents and he do not have idea of age of
Krishnama Naidu by the date of Ex.A4 Will and prior to preparing proof of
Ex.A4 Will he do not have acquaintance with the Krishnama Naidu and he has not prepared any document for him prior to the said document”.
20.Pw.3 further deposed that “the Krishnama Naidu did not brought any documents to him and he brought a written paper to him and he can not say who are came to him along with Krishnama Naidu to receive the document on the next day and generally they asked the parties to take print of the document on NJ stamps and he asked
Krishnama Naidu to take the print of the document which he prepared, on the NJ stamps, but he replied there is no such necessity and he advised the Krishnama Naidu to get registered the document which he prepared and he replied that there is no such necessity and generally they will not maintained conquest papers in their office and they will not use conquest papers for registration and he brought the conquest papers which are used for Ex.A4 Will and Ex.A4 Will the colors, thickness of page Nos.1 to 4 are differently appearing for each paper and generally the space in between the lines will be one and the same for total document and after taking print, the parties will sign on the document and generally they will make the page setup with the same space on top and bottom of page and that in 1st page of Ex.A4 there is two inch space on the bottom of that page and that there is no space on 2nd page of Ex.A4 Will and that he mentioned details of the “C” schedule and as such he got printed with out space on the bottom and he mentioned the boundaries of the “C” schedule in the next page and today he came to Court along with
APCH010000772017 15Fair Judgment in OS No.38/2017
G.Purushotham Naidu and he do not know whether G.Purushotham
Naidu and Sambasiva Naidu are friends and on the next day, he got printed the document in 30 minutes and sent them and attestors of Ex.A4
Will did not sign before him and generally after signing all the parties and witnesses they used to sign on the documents as document writer.”
21.PW.4 filed chief-affidavit supporting the case of the plaintiffs.
PW.4 deposed during his cross-examination is that “ the 1st plaintiff called him to give evidence in this case and Purushotham Naidu and Yogeshwar
Rao filed this suit against Kamalamma only and the plaint schedule properties are a house site at Murakamabattu in the name of 1st plaintiff, a house site in Kokavandlavooru in the name of 2nd plaintiff, he cannot say how many lands are shown in the plaint schedule and he do not know the survey numbers and boundaries of the above said houses and he went to the death ceremonies and at that time, the 1st defendant handed over a
Will to the 1st plaintiff and the 1st plaintiff read over the contents of the said Will and he was present at that time and he heard the contents of the said Will and he do not know and he do not remember in how many pages the said Will was executed and he do not know in which pages, the said Will was executed and the distance between his village and
Kokavandlavooru Village is about 10 KM and he is not relative to the family of the 1st defendant and the said deceased-Krishnama Naidu was 20 years older than him and the said deceased-Krishnama Naidu was not his friend and he is the friend of the 1st plaintiff and his brothers”.
22. Pw.4 further and generally as per hindu customs, after the death of husband, the wife will not talk to anyone and she will not come out from the house till completion of all ceremonies and even on the day of death ceremony, wife will not come out from the house and on the
APCH010000772017 16Fair Judgment in OS No.38/2017 next day after visiting the Temple only she will come out from the house and she will talk to any one and he do not know, where the said Will was executed and he do not know when the deceased Krishnama Naidu and his brothers have partitioned their properties.”
23.On behalf of the defendants, the 3rd defendant examined as
DW.1 and got marked Ex.B.1 and Ex.B.2. Dw.1 filed chief affidavit by re- etarating the contents of written statement. DW.1 deposed during her cross-examination is that “ she did not file any separate written statement on her behalf and Ex.B1 and Ex.B2 are stands in the name of 1st defendant and she obtained affidavit from the 1st defendant to depose evidence on her behalf also and the said affidavit is filed in this case and the 1st defendant and her husband Krishnama Naidu were resided in
Kokavandlavooru till the death of Krishnama Naidu and now the 1st defendant is residing in Kokavandlavooru and 1st defendant was resided with her for some time and thereafter she shifted to Kokavandlavooru and she do not remember the plaint schedule properties and she has seen what are the properties mentioned in the plaint schedule and One RCC building in the village, a small house site in Murakambattu village and a land to an extent of Ac.1.71 cents of Kokavandlavooru village are the plaint schedule properties and she do not remember whether she was on duty on 23.10.2013 or whether she was present at Chittoor or at
Kokavandlavooru village on that day”.
24. Further Dw.1 deposed that “1st plaintiff, the father of 2nd plaintiff namely Nagabhushanam are the brothers of husband of 1st defendant and the father of the 2nd plaintiff is residing in the said Kokavandlavooru and 2nd plaintiff is residing at Chennai due to his employment, but his permanent address is at Kokavandlavooru and one Ekambaram Naidu is
APCH010000772017 17Fair Judgment in OS No.38/2017 the elder brother of husband of 1st defendant and one Prakash Naidu is the younger brother of husband of 1st defendant and originally the plaint schedule properties are belongs to husband of 1st defendant and she will not examine 1st defendant since she could not speak and after death of
Krishnama Naidu his wife i.e., 1st defendant has withdrawn the amount lying in the bank accounts of Krishnama Naidu the 1st defendant has no children and one Nagabhushanam Naidu who is the brother of the
Krishnama Naidu performed death ceremony of Krishnama Naidu and at their request she permitted him to perform death ceremony of Krishnama
Naidu and she do not know value of the plaint schedule properties and the house site is situated in Murakambattu village accounts is comes under the jurisdiction of Municipal corporation, Chittoor and the 1st defendant is in possession and enjoyment of the plaint schedule properties and herself and 2nd defendant does not have any right and title over the plaint schedule property and that the 1st defendant has right and title over the plaint schedule properties”.
25.The plaintiffs claiming right and title over the plaint schedule properties basing on Ex.A.4-Will. Section 63 of Indian Succession Act deals with Will. For the convenience herewith reproducing Section 63 of
Indian Succession Act.
“Section 63 of Indian Succession Act.
Section 63 :63. Execution of unprivileged Wills.—
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:—
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his
APCH010000772017 18Fair Judgment in OS No.38/2017 direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 26.Section 68 of Indian Evidence Act deals with proof of the
Will. For the convenience herewith reproducing Section 68 of Indian
Evidence Act.
“Section 68 of Indian Evidence Act.
Sec.68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”
27.As per the above provisions, the Will is compulsorily attestable document and two or more attestors has to be attested the Will and for the proof of the Will any one of the attestor has to be examine and if none of the attestors are available, the persons who acquainted with the
APCH010000772017 19Fair Judgment in OS No.38/2017 signatures of the attestors has to be examined. For the compliance of the
Section 68 of Indian Evidence Act, the plaintiff got examined PW.2.
28.The learned Counsel for the defendant submitted arguments that the Ex.A.4-Will is forged and fabricated document and the colour of all papers of Ex.A.4-Will are not one and the same and the space or gap between the lines from one page to another page is not one and the same and in the Will the date in numerical was mentioned as “23-10- 2013”, whereas in words the date was mentioned as “twenty third of July, two thousand and fifteen” which shows that after the death of Krishnama
Naidu the plaintiffs have fabricated the Ex.A.4-Will. In support of the contention of the defendants, the learned counsel for the defendants relied on the portions of following citations.
(i)In the case of Shiva Kumar and others Vs. Sharanabasappa and others reported in 2021 (11) Supreme Court cases 277, the Hon’ble
Supreme Court of India held that :
“ In appeal by the contesting respondents against the judgment and decree so passed by the Trial Court, the High Court took note of the material on record as also the rival contentions and framed two points for determination as follows: “i) Whether the plaintiffs proved that the deceased Sangappa bequeathed his properties in their favour under the will dated 20.5.1991?” “ As regards discrepancies in the document in question, about the difference of the colour of the three sheets used and in the alleged signatures of the testator, the High Court meticulously examined the document and recorded its observations and findings as follows:
“24. Keeping the observations of the Hon’ble Supreme Court in view, the WILL would have to be looked into since it has been strenuously contended by the learned senior counsel for the appellant that the very sight of the WILL would indicate that the same has been fabricated. The original of the WILL dated
APCH010000772017 20Fair Judgment in OS No.38/2017 20.5.1991 is marked as Ex.P4 which is available in the records secured from the Court below. The same is typed in Kannada script on three sheets which are normally used for typing papers which are submitted to Court. The colour of the three sheets are not similar. The first sheet is light green, the second sheet is very light in colour (almost white) and the third sheet is darker among the three. At the outset, it is clear that all the three sheets are not from the same stock and if the same was got typed from a typist in a normal course as claimed, the sheets could not have been different from one another. The alleged signature of the testator is found at the bottom of each page on the facing side only. Though there is typed matter on the reverse side at pages 2 and 4 the same does not contain signatures. Even the signatures found on the facing sheet are not uniformly affixed. The unusual feature of the use of different instruments while making three signatures on the same document came up for its fuller exposition when the High Court proceeded to examine the explanation sought to be furnished by PW–4. While rejecting the testimony of this witness PW-4, the High Court observed and found, inter alia, as under: – “27. In this background, the discrepancies in the signatures and the different pens which were used also assumes importance. In this regard P.W.-4, Sri Ayyanagowda Hiregowdar who claims to be one of the attesting witness of the WILL in his cross examination admitted that Ex.P4(a) is the signature with ink pen, except Ex.P4(c) being the signature with ball pen and again signature Ex.P4(b) is by ink pen and he has also stated that the signatures in Ex.P4(a) and (b) have been made by the very same pen. In view of the above, the High Court allowed the appeal and set aside the judgment and decree of the Trial Court. Hence, the unsuccessful plaintiffs have preferred this appeal. The discussion thus far makes it clear that at least four unusual features of the document in question are evident on the face of the record. To recapitulate, the disturbing unusual features of the document in question are that: (i) it is typewritten on 3 different sheets of paper;
(ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and
APCH010000772017 21Fair Judgment in OS No.38/2017 page number 4.” "It does not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document. While proceeding further, we may usefully reiterate the principles relating to the examination of a document propounded as Will that the document is not approached with doubts but is examined cautiously and with circumspection. For what has been noticed hereinabove, the document in question carries several such features of unusual-ness which travel into the realm of abnormalities. The matter does not rest with such abnormalities only. These abnormal features get confounded with other unusual features available in the contents of this document. Indisputably, several blank spaces are found in relation to the particulars of the properties and even some of the properties are not correctly described. Yet further, the dates mentioned in the document with reference to Hindi Calendar and English Calendar do not match. Yet another curious feature is the recital in the document of a past event (about vacating of the shop by the tenant in the year 1990) in the manner that such event shall happen in future. Therefore, the abnormalities relating to paper, pen and signature get magnified with blank spaces in the document as also with incorrect and inexplicable recitals. From what has been discussed herein above, we are satisfied that the High Court has rightly interfered with the decision of the Trial Court and has rightly held that the document in question cannot be accepted as the genuine Will of the deceased Sangappa; and there was no reason for the High Court to remand the case to the Trial Court. Accordingly, and in
APCH010000772017 22Fair Judgment in OS No.38/2017 view of the above, this appeal fails and is, therefore, dismissed while leaving the parties to bear their own costs throughout. "
29.On perusing the Ex.A.4-Will it appears that the Ex.A.4-Will was got printed in conquest papers ( in which the judgments are being prepared) and Ex.A.4-Will contains in four papers and each paper appears to be different colour( like one paper is pale green and another one is in dark) and in first page the gap between the line to line is only single, whereas in second page the gap between line to line is one and half space and in third page the space in between the lines are in equal and again in fourth page the space in between lines is single. Generally equal space will be given between the lines of all papers in a document while printing the same. But in Ex.A.4-Will there is no such equal gap between lines from page to page. Furthermore, in Ex.A.4-Will the date in numerical it was mentioned as “23.10.2013”, whereas, in words the date was mentioned as “twenty third, July, two thousand and fifteen”.
30. Admittedly, the said testator of Ex.A.4-Will Krishnama Naidu was died on 14.12.2013. As per the settled law when there is ambiguity in respect of date or amounts of any document in numerical and in words the amount or date which are mentioned in words will be considered.
which creates a doubt about the genunity of the Ex.A.4-Will. Therefore it can be said that the Ex.A4-Will cannot be accepted as the genuine Will of the deceased Krishnama Naidu.
31.Furthermore, as per the version of the plaintiffs on 24.12.2013, he came to know about the Ex.A.4-Will and since then, they are in possession and enjoyment of the properties as per the Ex.A.4-Will.
This suit was filed in the year 2017. except Ex.A.1 to Ex.A.7 the plaintiffs did not file any document to show that the Ex.A.4-Will was acted upon
APCH010000772017 23Fair Judgment in OS No.38/2017 and as per the contents of Ex.A.4-Will the plaintiffs and his other brothers are in possession and enjoyment of the properties that fell to their share as per Ex.A.4-Will. Even the plaintiffs did not mutated their names in the revenue records basing on the Ex.A.4-Will from the year 2013 to till filing of the suit. Further as per the version of the plaintiffs and as per the contents of Ex.A.4-Will ‘A’ schedule property was given to Ekabaram
Naidu and his son I.e the brother of the 1st plaintiff and ‘B’ schedule property given to K.Chitti Babu son of another brother of the 1st plaintiff and ‘E’ schedule property was given to the Kishan son of younger brother of the 1st plaintiff and as per the evidence of Pw1 all of them are alive but the plaintiffs did not examine any one of them to establish his contention that the said deceased Krishnama Naidu bequeathed the plaint schedule properties in favour of the plaintiffs and they are in possession and enjoyment of the said properties. In this regard, PW.1 also deposed during his cross-examination is that he has not filed any revenue records to show that the beneficiaries under Ex.A4 Will taken the possession of the lands as mentioned in the Ex.A4 Will.
32.Further the answers given by the PW.2 during his cross- examination creates a doubt about the genuiness of the Ex.A.4-Will and his evidence. Therefore, it can be said that Ex.A.4-Will cannot be considered as genuine Will of deceased K.Krishnama Naidu.
Furthermore, the 2nd plaintiff who is independently claiming right and title over the plaint schedule No.II has not examine as witness.
33.In view of the above discussion and in view of the observations made by the Hon’ble Supreme Court in the above citations relied on by the learned counsel for the defendants it can be said that the
APCH010000772017 24Fair Judgment in OS No.38/2017
Ex.A.4-Will cannot be considered as genuine Will of deceased
K.Krishnama Naidu and the plaintiffs failed to establish that they are in possession and enjoyment of the plaint schedule properties as per the
Ex.A.4-Will. Therefore, it can be said that the Will executed by the
Krishnama Naidu dated 23.10.2023 is not a valid document and the 1st plaintiff is not the owner of the schedule No.I of the plaint schedule properties and 2nd plaintiff is not the owner of the schedule No.II of the plaint schedule properties and the plaintiffs are not entitled for declaration of their right and title over the plaint schedule properties and consequential relief of permanent injunction as prayed for. Accordingly, issues Nos. 1 to 5 are answered in favour of the defendants and against the plaintiffs.
34. Issue No.6:
In view of the discussion on issues Nos. 1 to 5, the suit is liable to be dismissed.
In the result, this suit is dismissed without costs.
Part of the Judgment is typed to dictation by the Stenographer and remaining part of the Judgment is dictated to the Stenographer and transcribed by him corrected and pronounced by this court in Open Court on this the 03 rd day of April, 2025.
Sd/- S.P.D.Vennela
ADDITIONAL CIVIL JUDGE,
(SENIOR DIVISION)
CHITTOOR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFFS DEFENDANTS
PW.1 : G.Purusotham Naidu. DW.1 : P.Lalitha. PW.2 : L.Sambasiva Naidu. PW.3 : K.Gajendra Kumar. PW.4 : M.Yuvaraj.
APCH010000772017 25Fair Judgment in OS No.38/2017
DOCUMENTS MARKED ON BEHALF OF
PLAINTIFFS:
Ex.A.1 : Certified registration extract of partition deed, dt.24.01.1987.
Ex.A.2 : Certified registration extract of Gift Settlement deed, dt.11.04.1988.
Ex.A.3 : Certified copy of registered sale deed, dt.27.04.2011.
Ex.A.4 : Original Will and Testament.
Ex.A.5 : Death certificate dated 16.01.2014 in proof of death of K.Krishnama Naidu on 14.12.2013.
Ex.A.6 : Original sale deed, dt.27.04.2011
Ex.A.7 : Death certificate of L.Bhaskar Naidu issued on 01.12.2020.
DEFENDANTS: Ex.B.1 : Extract under khatha No.836, issued by the Tahsildar of Chittoor Mandal in the name of the 1st defendant. Ex.B.2 : Adangal pahani under Khatha No.836 for phasali No.1426 issued by the Tahsildar of Chittoor Mandal in the name of the 1st defendant.
Sd/- S.P.D.Vennela
ADDITIONAL CIVIL JUDGE,
(SENIOR DIVISION)
CHITTOOR.