IN THE COURT OF THE II SENIOR CIVIL JUDGE:
CITY CIVIL COURT: HYDERABAD.
DATED THIS THE 15th DAY OF NOVEMBER, 2023
PRESENT: SMT.V.BHAVANI,
II SENIOR CIVIL JUDGE,
O.S.No.1052 OF 2017
Between: D.R.Durga Rao, @ Sunkara Durga Venkata Subba Rao, S/o.D.R.Vishnu, Aged 56 years, Occ: Pvt Job, R/o.H.No.13-377, Suryanarayana Colony, Venkatapuram, Eluru Mandal, West Godavari, A.P.
…..Plaintiff
AND
1. D.Raj Kumar @ Rajender, S/o. D.R.Vishnu, Aged 44 years, Occ: Pvt Employee,
2. D.Surender, S/o.D.R.Vishnu, Aged 41 years, Occ: Plumber,
3. Smt.D.Rani, W/o.D.Rajender, Aged 37 years, Occ: Housewife, (All are R/o.H.No.8-3-228/1280/133, Jawahar Nagar, Near Hanuman Temple, Yousufguda, Hyderabad).
....Defendants
This suit is coming on this day before me for final disposal in the presence of Sri.G.Srinivas, Advocate for plaintiff and Sri.V
S R M V Prasad Sanaka, Advocate for defendant No.1 and 3 and defendant No.2 was set exparte: and the matter having been heard and stood over for consideration till this date, this court delivered the following:
J U D G M E N T
This is a suit filed seeking the relief of partition and separate possession of suit schedule property and for allotment of 1/3rd share to the plaintiff and for costs of the suit.
>> 2 of 22<<O.S.No.1052/2017 2..The averments of the plaint in brief are as follows:
The plaintiff and defendants No.1 and 2 are the brothers and joint owners and possessors of the house bearing 8-3- 228/1280/133, admeasuring 120 Sq.yards in Sy.No.145/4 situated at Jawahar Nagar, Yousufguda, Hyderabad having acquired the same from their mother i.e., Smt.Late D.R.Saraswathi, through
Will Deed dated 27-02-2002.
3..Originally the suit schedule property was orally purchased by the mother of the plaintiff and defendant Nos.1 and 2 from her neighbour Mr.Mohammed long back and after purchase of the same, she constructed a house in the suit schedule property and since then she resided in the same along with the plaintiff and defendants till her death. During her lifetime she had executed a will deed with regard to suit schedule property before the witnesses who are the elders in the locality and she gave the xerox copy of the will deed to the plaintiff and defendant No.1 and 2 and the original will was kept with her sister by name
Smt.M.Pushpavathi.
4..As per the will executed by his mother, the plaintiff and defendant No.1 and 2 entitled equal share i.e., 1/3 share over suit schedule property. While things stood thus, their mother died on 07-04-2002 leaving behind the plaintiff and the defendants No.1 and 2 as her legal heirs and successors of the suit schedule property. After the death of the mother of the plaintiff, the plaintiff and the defendants No.1 and 2 being the legal heirs and >> 3 of 22<<O.S.No.1052/2017 successors of deceased D.R.Saraswathi are in joint possession and enjoyment over the suit schedule property without there being any regular partition with metes and bounds as per the WILL, thus the plaintiff is entitled 1/3 share out of the suit schedule property, and the defendants No.1 and 2 are entitled 1/3 share each over the suit schedule property.
5..It is submitted by the plaintiff that he along with defendants
No.1 and 2 are in possession and enjoyment of the suit schedule property. However, some difference aroused between the plaintiff and the defendants No.1 and 2, as such the plaintiff demanded the defendants No.1 and 2 in the month of September, 2017 for partition and separate possession in respect of his share, but the defendants No.1 and 2 with a malafide intention and with a view to have an unlawful gain for themselves and to cause wrongful loss to the plaintiff, denied the share of the plaintiff. On the other hand the defendants No.1 and 2 have proclaimed that they have transferred part of the suit schedule property in favour of defendant No.3. Thus, after knowing about the same, the plaintiff made enquiry and he came to know that the defendant No.1 in collusion with the defendant No.3 created the alleged Registered
Gift Settlement deed bearing Document No.4839/2012, dated 16- 11-2012 but as a matter of fact, the defendant No.1 is not alone is the owner and possessor of the suit schedule property to execute the same in favour of the defendant No.3, as such the alleged transaction between the defendant No.1 and defendant >> 4 of 22<<O.S.No.1052/2017
No.3 is sham and nominal. Thus, the alleged Registered Gift
Settlement Deed bearing Document No.48/2012, dated 16-11-2012 is executed behind back of the plaintiff as such the same is null and void and not binding on the plaintiff as the same is created and fabricated only for the purpose to deprive the legitimate right of the plaintiff.
6..That having seen the said illegal transaction the plaintiff finally demanded the defendants for partition and separate possession and allotment of his share over the suit schedule property and since the plaintiff residing in Eluru, West Godavari for his job purpose, taking advantage of the same, defendants colluded with eachother demolished half of the portion of the suit schedule property and started construction over the same without notice and knowledge to the plaintiff. On 05-10-2017, the plaintiff came to the suit schedule property and questioned the defendants with regard to the illegal construction and allotment of his share, but the defendants refused to give the share and continuing with the construction. Immediately, the plaintiff approached police,
Jubliee Hills and gave written complaint but the police not taken any action against the defendants. After seeing the same, the plaintiff approached Smt.M.Pushpavathi in whose possession original will deed was kept. Immediately, the plaintiff along with
M.Pushpavathi went to the suit schedule property and questioned the illegal construction but the defendants vehemently refused to stop the construction activity and after that M.Pushpavathi handed >> 5 of 22<<O.S.No.1052/2017 over the original will deed to the plaintiff. Hence, the suit.
7..A written statement is filed by the defendants No.1&3 submitting that defendants No.1 and 2 are the only legal heirs of their mother Late D.Saraswathi. The plaintiff is the younger brother of their late mother, his name is Sunkara Durga Venkata
Subba Rao not Durga Rao as mentioned in the plaint, his father is
Krishna Murthy. The defendant No.1’s mother Late Saraswathi never executed any will in her life time, the will dated 27-02-2022 is sham document, which is fabricated by the plaintiff with help of defendant No.2 and filed this suit against them to grab the property.
8..It is further submitted that the defendant No.1 and 2 executed notarized partition deed on 05-06-2008 of the suit schedule property. As per the partition deed the southern partition was allotted to defendant No.1 and northern portion was allotted to the defendant No.2. From then onwards the defendant No.1 and 2 are residing in the same manner. The defendant No.1 executed
Registered Gift Settlement deed vide Document No.483/2012 in respect of the portion that was allotted to him as per the partition deed dated 05-06-2008 in favour of defendant No.3. Then onwards the defendant No.1 and 3 are residing in southern portion without obstruction from anybody, and have been paying property tax to
GHMC in the name of defendant No.3. Subsequently, the
Tahsildar, Khairatabad, regulairzed the land in favour of defendant
No.3 issued proceedings No.BPLHYD150130036805, dated 04-06- >> 6 of 22<<O.S.No.1052/2017 2015, inadvertently they mentioned admeasuring 95.00 Sq.yards instead of 60 Sq.yards but defendant No.1 and 3 are in possession of land admeasuring 60.00 Sq.yards only.
9..It is further submitted that the plaintiff has no right and share and he is not the legal heir of Late Saraswathi. The suit schedule property partition took place in the year 2008 itself, then onwards the defendant No.1 and 2 are residing in their respective shares. Subsequently, some disputes arose between defendant No.1 and defendant No.2, the defendant No.2 encouraging the plaintiff to file this false case to grab this property.
10..That the defendants No.1 and 2 mother late Saraswathi worked as a private employee in AGI Glass Factory, she obtained
ESI benefits from her organization. The ESI corporation has given
ESI Card in her favour in the ESI card the plaintiff’s name is not there in that card as dependents of Late Saraswathi, which clearly indicates that the plaintiff approached this court with unclean hands by suppressing all facts. It is further submitted that the
Voter ID of the plaintiff reveals his father name as Krishnamurthy.
The plaintiff in collusion with defendant No.2 is intending to grab the schedule premises with evil intention. Hence, prayed to dismiss the suit.
11..On the basis of the above pleadings the following issues were settled for determination :-
1. Whether the suit schedule property is joint family >> 7 of 22<<O.S.No.1052/2017 property of the plaintiff and defendants?
2. Whether the plaintiff is entitled for partition and separate possession of the suit schedule property and for allotment of his shares as prayed for?
3. Whether the registered gift settlement deed bearing
No.4839/2012 dt.16-11-2012 is to be declared as null and void and not binding on the plaintiff?
4. To what relief?
12..Plaintiff filed his chief affidavit in lieu of his chief
examination as PW1 and got marked Exs.A1 to A17. On behalf of defendants, defendant No.1 filed his chief affidavit in lieu of chief examination and got marked Ex.B1 to Ex.B5.
13..Heard the arguments of plaintiff and arguments of the defendants is treated as heard.
14..ISSUES No.1 to 3:
Since the issues are connected to one another, this court finds it convenient to discuss all the issues jointly. As such all issues are discussed jointly.
It is the case of the plaintiff that his mother Late
D.R.Saraswathi during her lifetime has orally purchased the suit schedule property from her neighbour Mohammed longback and thereafter constructed a house in the suit schedule property and since then she has been residing in the same along with the plaintiff and defendants till her death. She died testate by executing a Will Deed during her lifetime in respect of suit >> 8 of 22<<O.S.No.1052/2017 schedule property before witnesses who are the elders in the locality and gave the copy of the Will deed to the plaintiff and defendants No.1 and 2 and kept the original Will with her sister by name Smt.M.Pushpavathi W/o. Ramulu. As per the said Will the plaintiff and the defendants No.1 and 2 are entitled equal share i.e., 1/3 share over the suit schedule property. On 07-04- 2002, the said D.R.Saraswathi died leaving behind the plaintiff and the defendants as her legal heirs. After the demise D.R.Saraswathi the plaintiff and defendants are in joint possession and enjoyment of the suit schedule property and the plaintiff has been regularly paying the electricity bills and water connection bills to the concerned departments. While things stood thus, some differences arose between plaintiff and defendants No.1 and 2, as such the plaintiff demanded the defendants in the month of September, 2017 for partition and separate possession in respect of his share, the same was denied by the defendants and the defendant No.1 in collusion with defendant No.3 got created alleged registered Gift settlement deed bearing Doc.No.4839/2012 dated 16-11-2012 in respect of suit schedule property. In fact, the defendant No.1 is not alone the owner and possessor of suit schedule property and he has no right to execute the gift deed in favour of defendant
No.3 and the alleged transaction is sham and nominal and not binding on the plaintiff.
15..On the other hand, it is the case of the defendants that the plaintiff is not the son of Late D.R.Saraswathi and the defendants >> 9 of 22<<O.S.No.1052/2017
No.1 and 2 alone are the legal heirs of Saraswathi. She never executed any Will during her lifetime. The plaintiff never resided in the suit schedule property at any point of time. The defendants
No.1 and 2 along with their mother Late D.R.Saraswathi alone lived in the suit schedule property along with the defendant No.3 who is wife of defendant No.1. On 05-06-2008, the defendant No.1 and 2 executed notarized partition deed in respect of suit schedule property. As per the partition deed the southern portion was allotted to defendant No.1 and Northern portion was allotted to defendant No.2 and since then, they have been in enjoyment of their respective portions. Subsequently, the defendant No.1 got executed a registered gift settlement deed on 16-11-2012 in favour of defendant No.3 for the Southern portion and has been residing in the same without obstruction from anybody and also paying property tax to GHMC in the name of defendant No.3. The
Tahsildar, Khairtabad regularized the land in favour of defendant
No.3 and issued proceedings No.BPLHYD150130036805, dated 04- 06-2015. That the plaintiff has no right, share in the suit schedule property and he is not the legal heir of Late D.R.Saraswathi. The plaintiff by playing fraud in collusion with the defendant No.2 has filed the suit to grab the schedule premises with evil intention and therefore not entitled for partition of the suit schedule property.
16..In support of his contention, the plaintiff got examined himself as PW1 and he reiterated the contents of plaint. The plaintiff got marked Exs.A1 to A17. Ex.A1 is Original Will Deed >> 10 of 22<<O.S.No.1052/2017
dated 27-02-2002. Ex.A2 to A4 are the Electricity bills standing in
the name of D.R.Saraswathi, Ex.A5 to A7 are the Water bills standing in the name of Saraswathy, Ex.A8, A9 and A10 are the family group photographs along with C.D. Ex.A11, A12 and A17 are the photographs of illegal construction, Ex.A13 is certified copy of registered Gift Settlement Deed bearing Document
No.4839/2012, dt.16-11-2012, Ex.A14 is Original Encumbrance
Certificate, Ex.A15 is Original Market Value Certificate, Ex.A16 is the Family group photo CD (common).
17..The plaintiff is mainly relying upon Ex.A1 original Will deed
dated 27-02-2002, stating that his mother Late D.R.Saraswathi
executed the said Will during her lifetime before the witnesses who are elders in the locality. The defendants denied the relationship of plaintiff with their mother D.R.Saraswathi. As per the contention of the defendants the plaintiff is not the son of
D.R.Saraswathi and they only are her legal heirs. The plaintiff is the younger brother of their mother Saraswathi and his name is
Sunkara Durga Venkata Subba Rao and not Durga Rao as mentioned in the plaint and his father’s name is Krishna Murthy.
It is further contended by the defendants that their mother never executed any Will in her lifetime and that the Will dated 27-02- 2002 under Ex.A1 is a sham document fabricated by the plaintiff with the help of defendant No.2 and filed the suit against them to grab the property.
18..The evidence of PW1 during his cross examination is that he >> 11 of 22<<O.S.No.1052/2017 is a Hindu by religion and Kapu by caste. He has been working in
Jute Mill, Eluru, West Godavari District since 30 years. He was born in Hyderabad and brought up as adopted son in Eluru, West
Godavari District by his grandfather after five years of his birth. At the age of 13 or 14 he returned to Hyderabad. He has not filed any document or title to show that One Saraswathi purchased the suit property from One Mohammed. It is deposed by him that his grandfather got the property purchased in the name of his mother
Saraswathi. It is denied by him that the said Saraswathi occupied the Government Land and consturcted a house therein and resided in the said property which is the suit schedule property herein. It is admitted by him that the suit property regularized in the name of said Saraswathi and she worked as an employee in AGI Glass factory and she was enrolled in ESI and ESI cards were issued. She was also given provident fund benefits. He admitted that his name is not mentioned in Ex.B1-ESI corporation identity card issued in favour of Saraswathi. In Ex.B2 voter ID of the plaintiff, the name of his father is noted as Sri Krishna Murthy. It is added by him that the said Krishna Murthy is his grandfather. It is denied by him that he was born to Krishna Murthy and that he is not his grandfather and not born to Saraswathi.
19..It is further stated by him that he has not filed any document to show that he was born to Saraswathi and Vishnu.
The wife of defendant No.2 is One Durga. The father of said
Durga is One Sita Ramulu whose surname is Sunkara. It is denied >> 12 of 22<<O.S.No.1052/2017 by plaintiff that the said Sita Ramulu and himself are brothers. It is stated by him that there is relationship between them and taking into consideration his surname they are treated as brothers.
He admitted that the defendant No.2 also married One Kavitha.
The wife of defendant No.2 by name Durga used to call him as
Uncle (Babai). He admitted that defendant No.1 and his wife supported Durga and opposed defendant No.2 marrying the said
Kavitha. He denied the suggestion that due to said matter, he colluded with defendant No.2 and at his instigation and at the instigation One M.Pushpavathi, the present suit is filed with false contents. He further denied the suggestion that during the last days of Late D.R.Saraswathi, she was looked after by defendant
No.1 and 3. He denied the suggestion that the said Saraswathi did not execute Ex.A1 Will deed and that she did not sign in the same. It is stated by PW1 that his mother bought the stamp paper used for Ex.A1. He denied the suggestion that Ex.A2 to A7 pertains to defendant No.2 and in collusion with the defendant
No.2, the said documents are created for the purpose of this case.
It is deposed by him that he has no idea regarding the partition deed executed in between defendant No.1 and 2. He admitted that defendant No.1 executed registered gift deed pertaining his share of property in favour of his wife. He came to know about the gift deed in the year 2016. He is not aware about the regularization of patta. He knew that since 2012 onwards for the southern portion, the defendant No.3 who is wife of defendant No.1 is paying tax to >> 13 of 22<<O.S.No.1052/2017 the said portion. That there are good terms between him and defendant No.2. He denied the suggestion that he is not legal heir of Saraswathi and that due to disputes between the defendant No.1 and 2, at the instance of defendant No.2 the present suit is filed in his name. He further denied the suggestion that he has no share in the suit property and the suit is filed for wrongful gain.
20..In support of his case, the plaintiff also got examined One
D.Vishnu, who is the father of the plaintiff and the defendants as
PW2. He filed his evidence affidavit by reiterating the contents of the plaint. PW2 during his cross examination deposed that he worked in IDPL company during his service as a plumber. He along with his wife by name Sakku Bai and son by name
D.Veerender are residing in house property bearing D.No.1-77/2/1/
D. He was not present when Saraswathi executed Ex.A1 Will Deed.
He denied the suggestion that the suit property is a Government property and that R.Saraswathi occupied the same. It is stated by him that 50 Sq.yards was purchased from One Janardhan and the remaining extent was purchased from a Muslim person by them.
The said Janardhan Reddy distributed above mentioned 50
Sq.yards to them, but he was not an MLA at that time. He categorically stated that he did not reside in the said property only but resided in the same for sometime. He denied the suggestion that he never resided in that property and defendants No.1 and 2 does not know him and that there is no relationship between them.
>> 14 of 22<<O.S.No.1052/2017 21..PW2 stated that he belongs to BC Community i.e., Munnuru
Kapu caste. One Rani is the wife of defendant No.1 and they have one son and two daughters but he do not know their names. He does not know whether the disputes arose between defendant No.1 and 2 regarding the marriage of the later with One Kavitha. He does not know whether the present case was got filed by the defendant No.2 through plaintiff in respect of the said marriage issue with the said Kavitha. The elder son of Kavitha is studying 11th standard and her second son is studying 9th standard and third son is studying 7th studying and all the three sons were born to her through defendant No.2. He does not know whether the suit property was regularized in the name of Late R.Saraswathi. He denied the suggestion that the said Saraswathi did not execute the
Will deed i.e., Ex.A1. It is admitted by him that defendant No.1 and 2 are residing in Southern and Northern side of the suit property. The documents pertaining water supply and electricity are in the custody of defendant No.2. He does not know whether defendant No.1 gifted Southern portion in favour of his wife. He admitted that when R.Saraswathi died, she was buried as per the customs of Christianity i.e., as shown to him (Ex.P7) in
I.A.No.397/2017 and 398/2017. He does not know till which period the plaintiff resided in the suit schedule property. He admitted that defendants No.1 and 3 are Christians and the first wife of defendant No.2 i.e., Smt.Durga is also a Christian. He stated that he is a Hindu by religion. He denied the suggestion >> 15 of 22<<O.S.No.1052/2017 that the final rituals of R.Saraswathi were performed as per the customs of Christianity. He admitted that during the lifetime of
Smt.Saraswathi she worked in AGI Glass factory and was having a
ESI deduction column in her salary earnings and the company gave her ESI card to take treatment. In the ESI card issued to
Smt.Saraswathi, D.R.Durga Rao i.e., the plaintiff name is not shown as family member.
22..PW2 further deposed that he was not invited to the marriage of defendant No.1 and 3. He denied the suggestion that he never attended the family functions of defendant Nos.1 and 3 and that they never seen him. He denied the suggestion that the father’s name of plaintiff is S.Krishna Murthy. He admitted that in Ex.A2 voter card the father’s name of Durga Rao is mentioned as Krishna
Murthy. He deposed that he along with his wife got constructed three rooms in the suit schedule property. One room each to plaintiff, defendants No.1 and 2. He denied the suggestion that
Late D.R.Saraswathi never kept the bill with One Pushpavathi
W/o.Ramulu at any point of time and then the plaintiff never resided in the suit schedule property.
23..It is further admitted by PW2 that the electricity bills and water bills filed in the present suit are given by the defendant
No.2 to the plaintiff. He admitted that the plaintiff’s name is not mentioned in electricity and water bills. He denied the suggestion that the defendant No.1 do not know that he is his father and defendant No.3 do not know that he is her father-in-law. He >> 16 of 22<<O.S.No.1052/2017 further denied the suggestion that he never resided with defendant
No.1 and 3 and always stayed with One Sakkubai and son
Veerender. He stated that he married Sakkubai during the lifetime of Saraswathi. His son Veerender is aged about 32 years. He got married and blessed with one son aged about 16 years. He denied the suggestion that in collusion with the plaintiff, defendant No.2, himself and One Purushotham with an intention to grab the suit schedule property filed the suit and that defendants No.1 and 2 are only having right over the suit schedule property. He admitted that since 2008, the defendants No.1 and 3 are residing in one portion and defendant No.2 is residing in another portion. He denied the suggestion that plaintiff is not the son of
Smt.Saraswathi and that he do not have any right over the suit schedule property.
24..On contrary to the case of the plaintiff, the defendant No.1 got examined himself as DW1. He filed his evidence affidavit by reiterating the contents of his written statement and got marked
Exs.B3 to B5 on his behalf. It is the case of DW1 during his cross examination that his mother’s name is Saraswathi and father’s name is Vishnu. The name of elder sister of his mother is
Smt.Pushpavathi. His mother was alive on 27-02-2002. He knew
One Mr.Venkat Swamy, Namdev Goud, Md.Mahaboob Pasha,
Subash Daniel. His mother died on 07-04-2002. He admitted that as per the recitals of Ex.A1, a xerox copy of Will deed was furnished to him and original is kept with his maternal aunt by name Smt.Pushpavathi. He categorically stated that he had no >> 17 of 22<<O.S.No.1052/2017 knowledge about Ex.A1 Will deed and that he has not received a copy of Ex.A1. He also stated that he does not know whether
Smt.Pushpavathi has given an affidavit at the time of filing of suit stating facts mentioned in Ex.A1 Will deed. He admitted that
Ex.A3 and A4 electricity bills are standing in the name of his mother Saraswathi. The final rites of his mother was performed as per Christian rites and customs at site III of Borabanda (Cemetery) a grave stone was also laid in the name of his mother at Site III.
He denied Ex.A8 photograph reflecting the names of plaintiff, Raj
Kumar, Surender and the names of Manga, Rani and Durga as daughter-in-laws. He denied the photographs filed by the plaintiff as fake. He admitted that by the date of death of his mother the suit schedule property is owned by her. His mother has not executed any registered document in favour of him and defendant
No.3 during her lifetime. He has not obtained legal heir certificate after the death of his mother from any court. He denied the suggestion that there is no valid document executed between him and defendant No.2 in respect of suit schedule property. Basing on the death certificate of his mother a notarized partition deed executed himself and defendant No.2 he executed gift settlement deed i.e., Ex.A13 in favour of his wife i.e., defendant No.3. He does not remember the documents furnished by them to the concerned authorities for obtaining Ex.B4 and B5. DW1 denied the signature of his mother on Ex.A1. He stated that he is not having any document bearing signature of his mother. He admitted the presence of the plaintiff, his maternal aunt Pushpavathi, >> 18 of 22<<O.S.No.1052/2017 defendant No.2, One Mr.Ratnakar S/o. Smt.Pushpavathi in Ex.A8 photograph. He further admitted that plaintiff, defendant No.2, wife of defendant No.2, himself and D/o.Smt.Pushpavathi, Sister- in- law of defendant No.2 and wife of plaintiff herein in Ex.A9. He further deposed that he does not the whereabouts of his father whether alive or not. He deposed that he does not know whether on 18-12-2018 his father filed chief affidavit as PW2 in the present case and was cross examined by his counsels on 24-01-2019 and 04-04-2019. He admitted that a notarized partition deed document was executed between him and defendant No.2 on 05-06-2008. In the said notarized partition deed he mentioned his father as Late
D.R.Vishnu Reddy. He cannot identify the signature of his father and that the plaintiff is not his brother. He stated that the plaintiff is the brother of his mother. He denied the suggestion the plaintiff is entitled for share in the suit schedule property as per Ex.A1 and that he is intentionally disputing his relationship with the plaintiff to avoid his legitimate share in the suit schedule property.
25..For the plaintiff to claim partition and share in the suit schedule property he has to prove that the property is joint family property and is in possession of plaintiff and defendants No.1 and
2. No document is filed by the plaintiff to show that he along with defendants No.1 and 2 are in joint possession and enjoyment over the suit schedule property. It is elicited from the evidence of
PW1 and PW2 that since 2008, the defendants No.1 and 3 are residing in one portion and defendant No.2 residing in another portion. It is an admitted fact that the suit schedule property is >> 19 of 22<<O.S.No.1052/2017 regularized in the name of defendant No.3. The plaintiff failed to establish properly his relationship with defendants No.1 and 2 and
Late D.R.Saraswathi. Though plaintiff is claiming that he is son of
Late D.R.Saraswathi no proof is filed to establish the same. As per
Ex.B2, plaintiff father name is noted as Krishnamurthy and the name of plaintiff is not noted in Ex.B1-ESI Corporation Identity
Card issued in favour of Late Saraswathi. Though, the plaintiff is appearing in the family photographs vide Exs.A8, A9, A16 he failed to establish his relationship with Late D.R.Saraswathi. When it is the case of the defendants that plaintiff is brother of their mother Late Saraswathi and not her son and got marked Exs.B1,
B2 in support their contentions, it is for the plaintiff to disprove the said fact.
26..Though, the plaintiff got examined PW2 in support of his case, the evidence of PW2 is not of much help to prove the case of the plaintiff and PW2 did not contribute much to prove the alleged WILL and also he pleaded ignorance in respect of whether suit schedule property was regularised in name of Late
R.Saraswathi. It is established from his evidence that he has estranged relationship with Late R.Saraswathi as he himself admitted that he married One Sakkubai and their son is
D.Veerender. PW2 has not filed any proof to show that
Saraswathi is his wife. PW1 and PW2 categorically stated that the document pertaining to water supply and electricity i.e., Ex.A2 to
A7 are obtained from defendant No.2 and they are in custody of defendant No.2.
>> 20 of 22<<O.S.No.1052/2017 27..That apart, when the plaintiff is relying on Ex.A1, Will Deed, it is for him to prove the due execution of the same. The plaintiff has not proved the WILL i.e., Ex.A1 as required under the provisions of Indian Succession Act and Indian Evidence Act. The plaintiff did not examine any of the attestor of the WILL. When it is stated that the plaintiff is not the legal heir of Late R.Saraswathi and the alleged WILL is disputed and the WILL in question is not proved, the plaintiff is not entitled for partition of suit schedule property. The plaintiff failed to examine the said M.Pushpavathi or any of the other elders in whose presence alleged Ex.A1 WILL
Deed was executed by Late R.Saraswathi. Plaintiff also did not file any document to show that, as and when, Late R.Saraswathi purchase the plaint schedule property. Without filing any document to prove the source of title of his mother, the plaintiff has no right to seek the relief of partition over the plaint schedule property. Even if it assumed that his mother purchased the suit schedule property, what prevented the plaintiff from examining the attestor of Will Deed i.e., Ex.A1 is not explained.
28..Considering the facts and circumstances of the case, the plaintiff failed to prove the due execution of Will Deed i.e., Ex.A1 and that the plaintiff and defendants are continued as joint family members. Hence, the plaintiff is not entitled to the relief as prayed for. Accordingly, the issues are answered against the plaintiff.
In the result, the suit is dismissed without costs.
Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the Open Court this the 15th day of November, 2023.
>> 21 of 22<<O.S.No.1052/2017
II SENIOR CIVIL JUDGE,
CITY CIVIL COURT: HYDERABAD.
APPENDIX OF EVIDENCE: Witnesses examined: For plaintiff:
PW1: D.R.Durga Rao @ Sunkara Durga Venkata Subba Rao
PW2: Damidi Vishnu
For defendants:
DW1: D.Rajender
Documents marked on behalf of the plaintiff:
Ex.A1: Original Will Deed, dt.27-02-2002.
Ex.A2: Electricity bill, dt.04-01-2015.
Ex.A3: Electricity bill, dt.06-02-2017.
Ex.A4: Electricity bill, dt.04-08-2017.
Ex.A5: Water bill, dt.30-12-2015.
Ex.A6: Water bill, dt.25-01-2016.
Ex.A7: Water bill, dt.10-03-2017.
Ex.A8: Family group photograph.
Ex.A9: Family group photograph
Ex.A10: Common CD.
Ex.A11: Photograph of illegal construction.
Ex.A12: Photograph of illegal construction.
>> 22 of 22<<O.S.No.1052/2017
Ex.A13: Certified copy of Regd.Gift Settlement Deed bearing Document No.4839/2012, dt.16-11-2012.
Ex.A14: Original Encumbrance Certificate.
Ex.A15: Original market value certificate.
Ex.A16: Family group photo CD (common).
Ex.A17: Photograph of illegal construction C.D. (common).
Documents marked on behalf of the Defendants:
Ex.B1: ESI Corporation Identity Card.
Ex.B2: Voter ID card of Krishna Murthy.
Ex.B3: Assignment Patta for land under possession, dt.04-06-2015.
Ex.B4: Proceedings of GHMC pertaining to transfer of Title.
Ex.B5: GHMC Tax receipt, dt.24-06-2017.
II SENIOR CIVIL JUDGE
CITY CIVIL COURT: HYDERABAD.