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IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL JUDGE
VIJAYAWADA.
Present: SMT. VELPULA BHAVANI
VI Addl. Senior Civil Judge, Vijayawada.
FAC/VII Addl.Senior Civil Judge, Vijayawada
Tuesday, this the 21 st day of NOVEMBER, 2023
O.S.No.17/2019
Between:
1.Sanka Aditya Manasa Datta, s/o. Sanka Bhaskara Rao, Hindu, aged about 25 years, emplkoyee and residing # 2809, Shatha tower, Dubai Media city, Dubai 2668, United Arab Emirates, rep.by his father and GPA agent as per GPA dt.31.12.2018 executed before JointSub Registrar,Patamata,Vijayawada i.e.2nd plaintiff. 2.Sanka Bhaskara Rao, s/o.late Sanka Venkata Subba Rao, Hindu, aged about 57 years, business, r/o.D.No.29- 14-62, 2nd and 3rd floors, Seshadri Sastry street, Governorpet, ….Plaintiffs Vijayawada, Krishna District 520 002.
And
1.Sanka Nanda Kumar, s/o.Sambasiva Rao, Hindu, aged about 37 years, r/o.D.No.39-11-7A, Groundfloor, Turlapati Kutumba Rao street, Labbipet, Vijayawada- 520010. 2.Sanka Sambasiva Rao, s/o.late Sanka Venkata Subba Rao, Hindu, aged about 66 years, residing in Groundfloor D.No.39-11-7A, Turlapati Kutumbarao street, Labbipet, Vijayawada-10. 3.Juluru Nagamani, w/o.Rambabu, Hindu, Housewife, aged about 50 years, r/o.D.No.40-2-14, Lakshmi nagar, Mogalrajapuram, Vijayawada-
520 010. …..Defendants
This Original suit coming on 16-11-2023 for final hearing before me in the presence of Sri.A.Ramakoteswara Rao, Advocate for the plaintiff and of Sri.K.Sanjeev, Advoate for defendants 1 and 2 and 3rd defendant remained exparte and the matter is having stoodover to this day for consideration, this Court upon hearing and perusing the entire material on record and upon consideration, delivered the following:
J U D G M E N T
1. The suit is filed by the plaintiff against the defendants for declaration that the plaintiffs are the absolute owners of the plaint B 2 schedule property with all easementary rights of parking and construction of stair case, at the specified place in the Will and also grant permanent injunction restraining the defendants, their men and followers, nominees, successors and agents from ever interfering with the plaintiffs’ possession and enjoyment of the plaintiffs forever in any manner and for costs.
2. The brief facts of the plaint filed by the plaintiffs are as follow:
The plaintiff No.2 and the defendants 2 and 3 are the children of Sri
Sanka Venkata Subba Rao and Sanka Lakshmi Narasamma. The plaint A schedule property is self acquired property of late Sanka Venkata Subba
Rao. The said Venkata Subbarao and his brother have separate individual properties with common stair case in Turlapati Kutumba rao street,
Labbipet, Vijayawada. The defendant No.1 is the son of2nd defendant.
The plaintiff No.1 is the son of plaintiff No.2.The 3rd defendant is the sister of plaintiff No.2 and defendant No.2. The plaintiff contended that the said
Venkata Subba Rao died suddenly in train accident at Bangalore on 28.5.1995 leaving behind his wife, Lakshmi Narasamma and 2nd plaintiff and 2nd defendant as his sons and the 3rd defendant as his daughter and
before death, the deceased Sanka Venkata Subba rao executed an
unregistered Will on 25.5.1995 bequeathing his properties among his wife, two sons in the presence of his two brothers and the family members so that there shall be no disputes in between his descendants. The plaintiff contended that at the time of executing the said will he is hale and healthy and in sound state of mind. The plaintiff contended that in the Will dt.25.5.1995 he had given life interest to his wife for her lifetime to enjoy the property without any rights of alienation over the property situated at Turlapati Kutumba rao street, Labbipet, Vijayawada and on her demise his two sons plaintiff No.2 and defendant No.2 shall enjoy the 3 said property as per the said Will for their lifetime without any right of alienation and vested interest to their respective sons of his two sons nanda kumar(D1) son of Sambasivarao and Aditya Manasa Datta (plaintiff
No.1), son of Bhaskara rao. The plaintiffs contended that total property of deceased Sanka Venkata Subba rao situated at Labbipet is shown as A schedule. The plaintiff contended that as there is no dispute about the property at Autonagar, it is not shown in the schedule. The plaintiff further contended that the property in which plaintiff No.1 is shown in plaint B schedule property which is situated at Labbipet, Vijayawada .Further contended that it is made clear that the property at Labbipet
Vijayawada is bequeathed to the 1st plaintiff shall be enjoyed by 1st plaintiff absolute rights only after demise of testator’s wife and his father the 2nd plaintiff. The 2nd plaintiff and wife of testator have no rights of alienation in any manner except to reside and enjoy the yield on the said property and after their demise, 2nd plaintiff shall have the life interest on the said property i.e. B schedule property, likewise the deceased Venkata
Subbarao also bequeathed a part of his property to 1st defendant and after lifetime enjoyment of 2nd defendant and Sanka Lakshmi Narasamma and the same is mentioned in the plaint C schedule. Thus the wife and children of testator had accepted the said bequests made to them under the said Will and the said Will came into force immediately on the demise of testator. The plaintiff further contend that the 2nd plaintiff asked his mother Narasamma to reside in the portion of house fell to his share in the first floor of plaint A schedule property which is also described as B schedule property since the demise of his father Venkata Subbarao as she got life interest in the said property. The plaintiff further contended that 2nd plaintiff is also given life interest without the right of alienation after 4 demise of his mother. 2nd plaintiff is also given another property portion in the 2nd floor and rents are being enjoyed by her under the said Will.
The plaintiffs further contended that till the demise of testator
Venkata Subbarao and his wife are used to live with the 2nd plaintiff only at another property belonging to the 2nd plaintiff at Autonagar under MIG 17 and 21 sicne 1984 from the same house he left for Bangalore to visit the Sri Ganapathi Satchidananda Asramam as he and his wife are devotees, unfortunately he met with train accident and died at Bangalore.
The plaintiff further contended that 2nd plaintiff as well as defendants 2 and 3 has knowledge about executing a Will on 25.5.1995 by their mother bequeathing one part of her absolute property to Ganapathi Satchinanda
Asramam and the said Will is delivered to Asramam. The plaintiff further contended that in Autonagar property, there was a partition in between two brothers of Venkata Subba rao and 2nd plaintiff alongwith his mother,
Lakshmi Narasaamma and said partition deed dt.9.4.2007ws registered as document 1824 of 2007 of SRO, Patamata, Vijayawada and in the said partition, elder brother of Venakta Subbarao by name China
Venkateswararao took possession of 1/3rd share on western side with metes and bunds and Sanka Tatarao who is another borhter of Venkata
Subba rao and 2nd plaintiff and his mother jointly took eastern side of the said property. Subsequently, the mother of 2nd plaintiff, had relinquished her joint life interest in the said property in favour of 2nd plaintiff and executed relinquishment deed dt.27.4.2007 vide docu.2512 of 2007 of
SRO, Patamata, Vijayawada. The plaintiff further contended that the said
Lakshmi Narasamma died on 22.12.2018 in the house at Labbipet where she was residing in the portion bequeathed to the 2nd plaintiff. Thus the life interest on A schedule property given to the wife of Sankata Venakta
Subbarao is not for her maintenance. She gifted the same to her daughter 5 3rd defendant under registered gift deed dt.23.8.2007 and delivered possession of same to her immediately. Since 4.1.2019 the defendants 1 and 2 are demanding the plaintiffs 1 and 2 to vacate the plaint B schedule property on the pretext that the said portion of property at Labbipet was bequeathed to them by father Sanka Venkata Subba rao. Without any right or possession over the B schedule property, they are pressuring the plaintiffs to vacate the same and deliver the possession of the said property.
The plaintiffs further contended that out of plaint A schedule property 2nd plaintiff is given under the Will, joint undivided and unspecified half share in the total extent of 166-1 ¼ s.y. i.e. 83.055 s.y.
along with constructions containing 900 sq.ft residential portion in first floor, 450 sq.ft rooms constructed in 2nd floor that remained after the property given to 2nd defendant alongwith parking lace of 130 s.ft. The plaintiff further contended that out of plaint A schedule, 2nd defendant is given under the Will executed by Sanka Venkata Subba Rao joint undivided and unspecified half share in the total extent of 166-1 ¼ sq.yds i.e. 83.055 s.y. alongwith constructions containing 900 s.ft. residential portion in ground floor 450 sq.ft. first two rooms constructed in the 2nd floor on eastern side 50 sq.ft. on the north east lace and another 80 s.ft.
on the northern boundary adjacent to the above 50 s.ft. in the eastern side vacant site for parking vehicles, with rights of ingress and egress through the north west doorway in the ground first room only. The 2nd defendant has no right of ingress and egress on the south east doorway of first room in the ground floor and from east to the first room in ground floor. The property that is bequeathed to 2nd defendant is shown under A schedule of said Will. It is shown in B schedule in the plaint. The said property is to be enjoyed by the 1st defendant Sanka Nanda Kumar after 6 the life of Sanka Lakshmi Narasamma and Sanka Sambasiva rao, the said property is shown under C schedule in the plaint.
The plaintiffs further contended that on the demise of Sanka
Lakshmi Narasamma, 2nd plaintiff took possession of said property and has been in possession and enjoyment of said property without any rights of alienation. The plaintiff further contended that the deceased parents of 2nd plaintiff, defendants 2 and 3 had lived with the 2nd plaintiff only in another own property of 2nd plaintiff which is situated at Autonagar. The plaintiff contended that only after the demise of father, the mother alongwith 2nd plaintiff lived in the Labbipet property which is plaint B schedule property. They never lived with the 2nd defendant, even now the plaintiffs are in possession and enjoyment of said plaint B schedule property. The plaintiffs after obtaining E.C. found that 2nddefendant fraudulently obtained a document of Relinquishment of life interest enjoyment rights from the deceased Sanka Lakshmi Narasamma against intention of Sanka Venkata Subba rao on the entire total property of
Sanka Venkata Subba Rao mentioned in A schedule of this plaint, ignoring the bequest made in favour of 2nd plaintiff under relinquishment deed dated 25.7.2015 vide doc.4780 of 2015 of Joint Sub Registrar,
Patamata, Vijayawada. The plaintiff further contended that on 30.07.2015 the 2nd defendant executed a Gift deed for the sid prepory in favour of 1st defendant behind back of 2nd plaintiff. As these documents are executed fraudulently and illegally, they are not binding on plaintiffs and they are null and void and not binding on the property of plaintiffs which is B schedule property.
3. The defendants1 and 2 filed written statement by denying all the allegations made in the plaint and contended that Sanka Venkata
Subba rao executed an unregistered Will on 25.5.1995 by creating life 7 interest in faovur of his wife by name Sanka Lakshmi Narasamma and vested reminder to the 2nd defendant in respect of entire plaint schedule property likewise the said Venakta Subba rao created life interest in respect of 1/3rd share in the Auto nagar building in favour of his wife,
Sanka Lakshmi Narasamma and vested reminder to the 2nd plaintiff. The defendants contended that the plaintiffs fabricated another Will with the same date by forging the signatures of late Sri Sanka Venkata Subba Rao,
Sanka Lakshmi Narasamma, 2nd defendant and changed the legacy created by late Sri Sanka Venkata Subba Rao and recitals in the will are created and there is no truth. The defendant further contended that late
Sri Sanka Venkata Subba Rao created life interest in respect of entire plaint schedule property in favour of his wife, Sanka Lakshmi Narasamma and vested reminder in favour of 2nd defendant in the Will dated 25.5.1995 and died on 28.5.1995 and after demise of Sanka Venkata
SubbaRao, his wife Lakshmi Narasamma took possession of the entire property and said Lakshmi Narasamma relinquished her life interest in favour of 2nd defendant for a consideration of Rs.1,00,000/- on 25.7.2015 by way of registered document No.4780 of 2015 on the file of SRO,
Patamata, Vijayawada. The defendant contended that 2nd defendant took possession of entire schedule property on 25.7.2015 and while enjoying as absolute owner, gifted the plaint schedule property in favour of the 1st defendant by executing a registered Gift Deed and delivering the possession of plaint schedule property to the 1st defendant on 30.07.2015, since then 1st defendant is in lawful possession and enjoyment of the plaint schedule property as absolute owner confirming the title and possession of the plaint schedule property and municipal authorities mutated the name of1st defendant in property tax registers and 1st 8 defendant has been paying the property tax on the plaint schedule property in his name.
The defendants further contended that mother of the 2nd plaintiff executed and registered Will on 12.12.1996 bequeathing her estate, in the said Will mother of 2nd plaintiff confirmed the bequeathing the entire plaint schedule property to 2nd defendant after lapse of her life interest.
The defendants contended that the plaintiffs are in possession of the original Will dated 12.12.1996 executed by the 2nd plaintiff’s mother. The defendants further contended that 2nd plaintiff’s father purchased a house property from APIIC Ltd., in the name of 2nd plaintiff in installments and they used to reside in the said house from 1984 till the demise of 2nd defendant’s father. The defendants contended that 2nd plaintiff has no financial capacity to purchase the house property from APIIC Ltd. The defendants contended that plaintiffs are not in possession of the plaint schedule property and the plaint pleading did not contain pleading to show how the plaintiffs came into possession of the plaint schedule property? And on what date? As such, the plaintiffs are not entitled to the relief of permanent injunction. Hence, prayed to dismiss the suit with costs.
4. Basing on the above pleadings, the following issues are framed for trial;
1) Whether the plaintiffs are entitled to the relief of declaration
in respect of plaint B schedule property by virtue of Will dated
25.5.1995?
2) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
3) Whether the Will dated 25.5.1995 propounded by the
defendants 1 and 2 is true, valid and binding on the plaintiff?
4) To what relief?
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5. During the course of trial, on behalf of the plaintiffs, PWs.1 to 3 are examined and Exs.A1 to A14 are marked and on behalf of the defendants
DW1 to 3 are examined and Exs.B1 to B10 are marked.
6. Heard both sides. Perused the record.
7. ISSUE No.1 :
1) Whether the plaintiffs are entitled to the relief of declaration
in respect of plaint B schedule propertry by virtue of Will dated
25.5.1995?
The Learned Counsel for the plaintiffs argued that the 1st plaintiff is son of 2nd plaintiff and the 2nd defendant is elder brother of 2nd plaintiff and the 1st defendant is son of 2nd defendant and the 3rd defendant is sister of 2nd plaintiff and 2nd defendant. Their parents are Sanka Venakta
Subba Rao and Sanka Lakshmi Narasamma. Both of them died. The 2nd plaintiff’s father died on 28.5.1995 at Bangalore in a train accident and 2nd plaintiff’s mother died on 22.12.2018. The counsel for the plaintiffs further argued that father of 2nd plaintiff i.e. Sanka Venkata Subba Rao and his two brothers executed the partition deed on 18.2.1959 and A schedule property mentioned in the plaint vested to father of 2nd plaintiff.
Further the plaint schedule property is sole absolute owner of father of 2nd plaintiff and some other property at Auto nagar. The schedule property is still in the name of father of 2nd plaintiff only in the municipal records and other records of electricity department. The defendant No.1 is the son of 2nd defendant. The 1st plaintiff is the son of plaintiff No.2, the 3rd defendant is the sister of plaintiff No.2 and the defendant No.2. The
Learned Counsel for the plaintiffs argued that father of 2nd plaintiff died in train accident at Bangalore on 28.5.1995 leaving behind his wife Lakshmi
Narasamma and 2nd defendant and 2nd plaintiff as his sons and 3rd defendant as his daughter. Before to his death, the deceased executed an unregistered Will on 25.5.1995 bequeathing his properties the life interest 10 was given to his wife after death of his wife the life interest was given to his two sons and vested interest to the1st plaintiff and 1st defendant, so that there shall be no disputes in between his descendants and at the time of executing the said Will he is hale and healthy and in sound state of mind. Further in the said Will dt.25.5.1995 he had given life interest to his wife for her life time to enjoy the property without any rights of alienation over the property situated at Turlaparti Kutumba rao street,
Labbipet, Vijayawada and on her demise to his two sons plaintiff No.2 and defendant No.2 shall enjoy the said property as divided and described by him, in the said Will for their lifetime without any right of alienation and the vested interest to their sons of his two sons Nanda Kumar (D1) and son of Sambasiva rao and Aditya Manasa Datta (1st plaintiff) son of
Bhaskararao. He had two properties at Labbipet and also in Auto nagar area. The plaintiffs further contended that the total property of deceased
Sanka Venkata Subba rao situated at Labbipet is shown as A schedule.
The Learned Counsel for the plaintiffs further argued that as there is no dispute about the property at Autonagar, it is not shown in the schedule of plaint. The property at Labbipet Vijayawada is bequeathed to 2nd plaintiff shall be enjoyed by 1st plaintiff with absolute rights, only after demise of mother of 2nd plaintiff and 2nd plaintiff. The 2nd plaintiff and mother of 2nd plaintiff have no rights of alienation in any manner except to reside and enjoy the yield on the said property which is B schedule property to the plaint. Likewise, the deceased Venkata Subba Rao bequeathed a part of his property to the 1st defendant after lifetime enjoyment of the 2nd defendant and Sanka Lakshmi Narasamma. Further it is also mentioned in the plaint C schedule, thus the wife and children of testator and accepted the said bequests made to them under the Will and the said Will came into force immediately on the demise of testator.
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8. The Learned Counsel for the plaintiffs further argued that 2nd plaintiff asked the mother of the 2nd plaintiff Sanka Lakshmi Narasamma to reside alongwith him in the portion of house fell to his share in the first floor of the plaint A schedule property which is B schedule property, since the demise of father of 2nd plaintiff Venkata Subba rao as she has got the life interest in the said property. The 2nd plaintiff also given under the said
Will another property portion in the 2nd floor and rents are being enjoyed by her. Further regarding the property situated at Autonagar was bequeathed to him after the life time of mother of 2nd plaintiff Sanka
Lakshmi Narasamma. She relinquished her life interest in the said property at Autonagar taking consideration from 2nd plaintiff and the 2nd plaintiff have in possession of the said property with absolute rights on the property and 2nd plaintiff dealt with the said property. The Learned
Counsel for the plaintiffs further argued that till demise of testator Sanka
Venkata Subba Rao and his wife, they are used to live with the 2nd plaintiff only at another property belonging to 2nd plaintiff at APIIC
Autonagar under MIG 17 and 21. Further the MIG 21 was purchased by the 2nd plaintiff in the year 1984 from his earning and MIG 17 was also purchased in the year 1993 from his earning by way of business and the said documents registered in favour of 2nd plaintiff, since 1984 the parents of 2nd plaintiff were living with him from the same house. They left for Bangalore to visit Sri Ganapathi Satchinanda Asramam alongiwth family members, as they are devotees. Further the father of 2nd plaintiff met with the train accident and died at Bangalore Railway station. In proof of the said residence of father of 2nd plaintiff with him, he filed HP gas supply book containing his signatures. After demise of father of 2nd plaintiff, the mother of 2nd plaintiff took possession of the property bequeathed to the 2nd plaintiff with her life interest in Labbipet property 12 and she used to collect the rents from tenants in property of 2nd plaintiff and 2nd plaintiff also used to conduct tuition classes in the said property.
Thus the 2nd plaintiff looked after his parents till their demise. There is no dispute about the property situated at Jawahar Auto nagar, A block, 2nd cross road bearing D.No.55-4-2, flat No.28 with regard to the 1/3rd undivided share vested life interest given to mother of 2nd plaintiff and after the said property vested to the 2nd plaintiff with absolute rights.
9. The Learned Counsel for the plaintiff further argued that 2nd plaintiff, as well as defendants 2 and 3 had knowledge that mother of 2nd plaintiff Sanka Lakshmi Narasamma is having Stridhana house property situated at Mogalrajpuram and she is an absolute owner of D.No.40-2-14 and she voluntarily executed Will on 25.5.1995 bequeathing one part i.e.
50% of her absolute property to Sri Ganapathi Satchidananda Asramam and 2nd plaintiff came to learn that his mother had also delivered the said
Will to the said Asramam. Later, his mother had executed a Gift Deed the entire said Stridhana property in favour of the 3rd defendant by way of registered gift deed dt.23.8.2007 without excluding the share of Sri
Ganapathi Satchinanda Asramam. The said property is not included in this suit as the property belongs to mother of 2nd plaintiff as Stridhana.
The Learned Counsel for the plaintiffs further argued that in Autongar property, there was a partition in between two brothers of Venkata Subba
Rao and 2nd plaintiff alongwith his mother. The said partition deed dated 9.4.2007was registered as document No.1824 of 2007 of SRO, Patamata,
Vijayawada. As per partition deed, the elder brother of Venkata Subba rao by name China Venkateswararao took possession of his 1/3rd share on western side with metes and bounds and Sanka Tata rao and the 2nd plaintiff and his mother having joint possession. Subsequently, the mother of 2nd plaintiff relinquished her life interest in the said property in 13 favour of the 2nd plaintiff and executed a registered relinquishment deed
dated 27.04.2007 vide document No.2512 of 2007 of SRO, Patamata,
Vijayawada after taking consideration. Thereafter, the paternal uncle of 2nd plaintiff, Sanka Tatarao had relinquished his rights in the joint property under the partition deed in faovur of 2nd plaintiff under the registered relinquishment deed dt.14.5.2007 which was registered as doc.No.2519 of 2007 of SRO, Patamata, Vijayawada after receiving consideration, thus the 2nd plaintiff became the absolute owner of the property situated at Autonagar. The Learned counsel further argued that the mother of 2nd plaintiff die don 22.12.2008 in the house at Labbipet where she was residing in the portion bequeathed to 2nd plaintiff. Thus the life interest on A schedule property given to the wife of Sanka Venkata
Subba rao is not for her maintenance. The stridhana property of 2nd plaintiff was gifted to 3rd defendant under registered gift deed dt.23.8.2007 and delivered possession of the said property to her immediately. Since then 3rd defendant is in possession and enjoyment of the said property with absolute rights. Either the 2nd plaintiff or the defendants 1 and 2 are not making any claim over the said property.
Since 4th day of January, 2019 the defendants 1 and 2 are demanding the2nd plaintiff and his son to vacate the plaint B schedule property on the pretext that the said portion of property at Labbipet was also bequeathed to them by father of 2nd plaintiff Sanka Venkata Subba Rao.
The defendants 1 and 2 did not furnish any proper document of their title over the plaint B schedule property. The property bequeathed to the defendants 1 and 2 is shown in plaint C schedule. Without having any right or title or possession over the plaint B schedule property they are pressurizing the plaintiffs to vacate the same and deliver the possession of the said property. The 2nd defendant is not having any rights over the 14 property bequeathed to plaintiffs by Sanka Venkata Subba Rao. The
Learned Counsel for the plaintiffs further argued that immediately on the demise of Sanka Lakshmi Narasamma ,2nd plaintiff took possession of the said property and have been in possession and enjoyment of the said property without any rights of alienation. Further argued that as the 3rd defendant being sister of 2nd plaintiff and 2nd defendant is brother of 2nd plaintiff being daughter of late Sanka Venkata Subba Rao and late
Lakhsmi Narasamma she is also shown as a necessary party. The
Learned Counsel for the plaintiffs further argued that certified copy of
GPA executed by the 1st plaintiff in favour of 2nd plaintiff, the death certificate of Sanka Lakshmi Narasamma the Will dt.25.5.1995 executed by late Venkata Subba Rao, Xerox copy of passport of 1st plaintiff , certified copy of death certificate of late Sanka Venkata Subba rao, the gas cylinder supply passbook in the name of deceased Venkata Subba
Rao which house belongs to the 2nd plaintiff, water and property tax bills, payment particulars of telephone in the name of 2nd plaintiff issued by BSNL Vijayawada for the phone 0866-2474074 with the address of plaint schedule property, valuation certificate of property in respect of same allotted to the 2nd plaintiff. The 2nd plaintiff has purchased the said house MIG 21 of Autongar from APIIC under the sale deed dt.27.3.1992 and MIG 17 and 21 were sold away by the 2nd plaintiff under the registered sale deed dated 22.6.2010.
10. The Learned counsel for the plaintiffs further argued that after obtaining E.C found that the 2nd defendant fraudulently obtained a document of Relinquishment of the life interest enjoyment rights from the deceased Sanka Lakshmi Narasamma against the intention of Sanka
Venkata Subba Rao. On the entire total property of Sanka Venkata Subba
Rao mentioned in A schedule of this plaint, ignoring the bequest made in 15 favour of plaintiffs under the relinquishment deed dated 25.7.2015 vide document No.4780 of 2015 of Joint Sub Registrar, Patamata, Vijayawada and within five days on 30.07.2015 the 2nd defendant executed a gift deed for the said property in favour of the 1st defendant vide doc.5019 of 2015 of Joint Sub Registrar, Patamata, Vijayawada behind back of plaintiffs. As these documents are executed fraudulently and illegally they are not binding on the plaintiffs. Those documents i.e. relinquishment deed executed by mother of 2nd plaintiff and gift deed executed by the 2nd defendant in favour of 1st defendant are not binding on the plaintiffs as they are in possession of the same till the demise of Sanka Lakshmi
Narasamma on 22.12.2018..
11. To prove the case of the plaintiff, 2nd plaintiff is examined as PW1 and he filed his chief examination affidavit which reiterates the contents of plaint. PW1 got filed Exs.A1 to A14 and on perusal of Ex.A1 to A14 it is seen that Ex.A1 is Certified copy of Regd.GPA given by the 1st plaintiff to the 2nd plaintiff dated 31.12.1998, Ex.A2 is unregistered Will executed by the father of 2nd plaintiff dated 25.5.1995, Ex.A3 is the Relinquishment deed executed by Sanka Lakshmi Narasamma dated 25.7.2015, Ex.A4 is the Settlement deed executed by the 2nd defendant in favour of 1st defendant dated 30.07.2015, Ex.A5 is the particulars of payment particulars given by BSNL for the telephone 0866-2474074 standing in the name of 2nd plaintiff at plaint schedule property dated 28.1.2017,
Ex.A6 is the death certificate issued by VMC, for the death of Sanka
Lakshmi Narasamma on 22.12.2018, Ex.A7 is the HP gas connection book in the name of Sanka Venkata Subba Rao, who resided at another property of 2nd plaintiff at Autonagar, Vijayawada, Ex.A8 is the sale deed executed by APIIC in the name of 2nd plaintiff dated 27.3.1992, Ex.A9 is the Digitally signed certified copy of sale deed executed by 2nd plaintiff in 16 favour of Palagani Sudhakar rao dt.22.6.2010, Ex.A10 is the E.C. for the plaint A schedule property for the period from 1.5.1995 to 16.1.2019,
dated 17.01.2019, Ex.A11 is the Gas delivery receipts vide No.644715 x 7
,Ex.A12 is the office copy of complaint given to the Commissioner of
Police, dt.2.2.2019, Ex.A13 is the complaint given to Asst. Commissioner of police alongwith acknowledgement dt.2.2.2019, Ex.A14 is the Digital copy of memo issued by the Commissioner of Police, dt.7.2.2019.
12. In the cross examination, Pw1 deposed that he did share business since 1983 but at present he is not doing any business. PW1 deposed that he did job in Viajaya Lakshmi Trading Company from 1979 to 1985 as
Marketing manager cum Accountant. PW1 deposed that he has no properties in Autonagar and he purchased one property in Autonagar and possession of the property given to him in 1984 and another property was devolved on him by virtue partition which is their ancestral property and he purchased 1/3rd share of property from his paternal uncle during 2007. Pw1 deposed that during 2007 the share of his mother was devolved to him. Pw1 admitted that his father executed a Will in respect of property situated in Autonagar and as per said Will his father created life interest in favour of his mother and vested reminder to him. Pw1 deposed that during life time of his mother he got executed relinquishment deed in respect of the property referred in the Will. Pw1 deposed that he has not filed the relinquishment deed executed by his mother in his favour and as per Will executed by his father, the property situated in Labbipet was bequeathed to his mother life interest and vested reminder in favour of defendant No.2 and himself. PW1 further deposed that there is no documentary proof to show that his mother given the original Will to
Ganapathi Sachidananda swmay Asramam, the property situated in
Mogalrajpuram stands in the name of his mother. PW1 voluntarily 17 deposed that the said property is vacant site having building and half of the property given to Ganapathi Sachidanandaswamy Asramam and half of the property was given to his sister during 1995. PW1 further deposed that the said property consisting 405 s.y.PW1 deposed that the said
Ashramam did not take delivery of possession of the property subsequent to death of his mother. Pw1 admitted that his elder sister got constructed a house in the said property which consists of 406 s.y. by demolishing the existing building during 2008. PW1 further deposed that his mother died during December, 2018 and subsequently possession of ½ of property not taken by the said Ashramam. PW1 deposed that his mother and his paternal junior uncle S.Tata Rao, his brother S.Sambasiva rao/D2 Sankar and Sugunakar are attestors of Ex.A2 Will. Pw1 deposed that he was present at the time of drafting Ex.A2 Will. PW1 deposed that he has no idea that his mother executed registered relinquishment deed in favour of
D2 in respect of property situated at Labbipet. PW1 admitted that his mother executed relinquishment deed Ex.A3 in favour of D2 on 25.7.2015 and thereafter he came to know the said relinquishment deed executed in respect of entire property and as such he filed Ex.A3 relinquishment deed.
PW1 deposed that he did not issue any legal notice to his mother and brother questioning regarding Ex.A3. Pw1 deposed that he read the contents of Ex.A3 and filed the same before the court. PW1 deposed that during December 2018 i.e. subsequent to death of his mother disutes arose between him and his brothers.
13. PW1 further deposed that prior to death of his mother he resided in two houses at Labbipet and Governorpet but he has no idea in whose name the property tax is being paid till date. Pw1 admitted that he did not pay the property tax in respect of plaint B schedule property subsequent o the death of his mother. PW1 deposed that the bills relating to payments 18 under Ex.A5 are not available. Pw1 admitted the payment of telephone bill paid till 2013 since the telephone connection disconnected subsequent to 2013. Pw1 deposed that Ex.A7 stands in the name of his father and his address shown as Autonagar. They used to utilize the gas cylinder which was delivered under Ex.A7 till 1995 thereafter they shifted the said address. PW1 further deposed that Ex.A11 receipts relating to 2018 and 2019 and the said gas connection stands in his name. PW1 deposed that he has been in possession and enjoyment of the property alongwith his mother, subsequent to the death of his mother he continued his possession and the property is under his lock and key. PW1 deposed that he has not filed any document to show that he is in possession of schedule property from June, 2019 to till date. PW1 deposed that the property was not mutated in his name as such he has not filed the property tax receipts. PW1 deposed that as on the date of death of his mother she was resided in the house of his brother/D2, PW1 voluntarily deposed that his mother was not in a position to reside in 1st floor due to her ill-health.
14. To support the case of the plaintiff and to prove the execution of
Ex.A2 Will the plaintiff got examined one Lingamsetty Sankara rao who is one of the attestors of Ex.A2 Will dated 25.5.1995 and he filed his chief examination affidavit stating that at the time of execution of unregistered
Will executed by Sanka Venkata Subba rao, he was present and he is one of the attestors and after conclusion the contents of Will were read over and explained to Sanka Venkata Subba Rao in the presence of attestors and at the time of execution of Will, the said Venkata Subba Rao is hale and healthy and sound disposing state of mind. PW2 deposed that the life interest was given to the wife of Sanka Venkata Subba rao for Labbipet property and also Auto nagar property and after death of wife of Subba 19 rao, life interest was given to the 2nd plaintiff and 2nd defendant and vested interest to 1st plaintiff and 1st defendant for their respective shares.
PW2 deposed that after the death of wife of Venakata Subbarao 2nd plaintiff is the absolute owner of Autonagar property. PW2 deposed that after completion of drafting of unregistered Will, the said Sanka Venkata
Subba rao signed on it before him and later Sanka Lakshmi Narasamma,
Sanka Tata rao, Sanka Sambasiva rao Sanka Bhaskara rao, T.Sugunakar
Padma rao and himself signed on the Will as attestors and scribe signed on it and thereafter he handed over to the Sanka Venkata Subba rao.
15. PW2 was cross examined at length and in the cross examination,
PW2 deposed that he got acquaintance with the family Venkata Subba rao about five to six years prior to 1995 and he got acquaintance with
S.Venkata Subba rao in his business as he used to see his accounts. PW2 deposed that he went to the house of said Venkata Subba rao on 25.5.1995 and the drafting of the Will took placed at APIIC colony,
Autonagar.PW2 deposed that on the dictation given by the testator
S.Venkata Subba rao the scribe drafted the Will. Pw2 deposed that he got knowledge about the property at Labbipet and the said property stands in the name of S.Venkata Subba rao.Pw2 deposed that he did not verify the documents stands in the name of S.Venkata Subba rao and the execution of Will was completed between 5.30 to 6.00 pm and the said Will was drafted on five pages. PW2 deposed that six attestors including himself scribed their signatures on the Will. The testator Subba rao scribe dhis signature on one page.
16. To support the case of the plaintiff and to prove the excecution of
Will dated 25.5.1995 the plaintiff got examined scribe of Ex.A2 Will by name Movva Muralikrishna as Pw3 and he filed his chief examination 20 affidavit stating that at the time of execution of unregistered Will he was present and acted as scribe and the said Venkata Subba Rao dictated the contents of Will to him for preparation of draft Will and after conclusion he readover and explained the contents of Will to the Sanka Venkata
Subbarao and accepted and approved by Sanka Venkata Subba rao. PW3 deposed that he prepared the original Will on 25.5.1995 and after completion of said Will he read over and explained to Sanka Venkata
Subba rao in the presence of all atestors and that life interest was given to the wife of Sanka Venkata Subba rao for Labbipet property and also Auto nagar property and after the death of said Subba Rao life interest was given to the 2nd plaintiff and 2nd defendant and vested interest to the1st plaintiff and 1st defendant for their respective shares of Labbipet property.
PW3 deposed that after completion of drafting the original unregistered
Will, the said Venkata Subba rao signed on it, before him and later
Sanka Lakshmi Narasamma, Sanka Tatarao, S.Sambasivarao, Sanka
Bhaskar rao, Lingamsetty Sankar rao and T.Sugunakara padmarao signed on the will as atestors and himself signed on the will as scribe.
17. In the cross examination PW3 deposed that he was not in the habit of writing documents and he worked in Vijayawada during 1995 as employee in Electricity department. PW3 deposed that he does not remember the name of day on which he drafted the will butit was working day.Ex.A3 Will was drafted on five white papers.PW3 deposed that he drafted Ex.A3 Will on conquest papers and on the date he ws on leave due to his personal work and he drafted Ex.A3 Will only except that no document scribedbyhim.PW3 deposed that he does not know Tata rao but he saw at the time of execution of Will and he has no prior acquaintance with the family Sanka Venkata Subba rao and he came to know through
S.V.Subbarao that Sanka Bhaskararao has earning capacity by 1984.
21
PW3 admitted that he did not refer in his chief examination affidavit that initially he scribed the draft will thereafter the testator effected correction then he scribed the original will and at the 1st instance S.Venkata Subba rao scribed his signature on the last page of Will and he scribed only one signature. PW3 deposed that subsequent to S.V.Subbarao his wife
Lakshmi Narasamma scribe her signature on Ex.A3, later his brother
Tatarao scribed his signature thereafter Sambasiva rao who is elder son of
Sanka Venkata Subba rao, later Bhaskara rao who is younger son of
Sanka Venkata Subba rao scribed his signature. Later Sankara rao scribed his signature. One Padmarao scribed his signature on Ex.A3. PW3 deposed that the handwriting found on Ex.A3 will is of him.
18. In declaration suits, the burden lies on the plaintiff to prove his case and the plaintiffs in this case categorically proved the very execution of Ex.A2 Will executed by the father of the 2nd plaintiff pertaining to plaint
B schedule property. As per Section 68 of Indian Evidence Act and as per
Section 63 of Indian Succession Act, the plaintiffs clearly established that
Ex.A2 Will is true, valid and genuine one by examining one of the attestors and scribe of Ex.A2.
19. The contention of the defendant is that plaintiffs fabricated another
Will with the same date by forging the signatures of late Sri Sanka
Venkata Subba rao,Sanka Lakshmi Narasamma, 2nd defendant and changed the legacy created by late Sanka Venkata Subba rao, therecitals in the Will filed alongwith the plaint are created and there is no truth. The defendant further contended that late Sanka Venkata Subba rao created life interest in respect of the entire plaint schedule property in favour of his wife, Sanka Lakshmi Narasamma and vested reminder in favour of 2nd defendant in the Will dated 25.5.1995 and died on 28.5.1995 and after 22 demise of said Subba rao his wife Narasamma took possession of the entire property and while enjoying the same, the said Narasamma relinquished her life interest in favour of the 2nd defendant for a consideration of Rs.1,00,000/- on 25.7.2015 by registered doc.No.4780 of 2015 on the file of SRO, patamata,Vijayawada. The defendant contended that 2nd defendant took possession of entire schedule property on 25.7.2015 and while enjoying the plaint schedule property as absolute owner, gifted the plaint schedule property in favour of the 1st defendant by executing a registered gift deed and delivering possession of the plaint schedule property to the 1st defendant on 30.07.2015 and since then the 1st defendant is in lawful possession and enjoyment of the schedule property as absolute owner and also municipal corporation Vijayawada mutated the name of 1st defendant in property tax registers and 1st defendant is paying property tax in his name.
20. The defendant further contended that the mother of 2nd plaintiff executed and registered a Will on 12.12.1996 bequeathing her estate and in the said Will the mother of 2nd plaintiff confirmed the bequeathing the entire plaint schedule property to 2nd defendant after lapse of her life interest. The plaintiffs are in possession of the original of Will dated 12.12.1996 executed by the 2nd plaintiff’s mother, therefore the allegations mentioned in the plaint are not true and correct, as such plaintiffs are not entitled to the relief of declaration that plaintiffs are absolute owners of plaint B schedule property.
21. To prove the contention of the defendant, the defendant got filed
Exs.B1 to B10 and on perusal of Ex.B1 to B10, it is seen that Ex.B1 is the certified copy of registered Will executed by S.Lakshmi Narasamma on 12.12.1996 , Ex.B2 is the letter issued by Home Finance Aadithya Birla 23
Housing Finance dt.18.3.2023, Ex.B3 is the Certified copy of Registered
Relinquishment deed executed by Sanka Lakshmi Narasamma in favour of the 2nd defendant dated 25.7.2015, Ex.B4 is the certified copy of
Registered Gift Deed executed by the 2nd defendant in his favour, Ex.B5 is the property tax demand notice in the name of 1st defendant dated 20.04.2017, Ex.B6 is the Integrated Demand bill for the year 2018-19 in the name of 1st defendant issued by the Municipal Corporation dated 12.04.2018, Ex.B7 is the water and sewerage charges bill for 2018-2019 in the name of the 1st defendant issued by the Municipal Corporation
dated 14.5.2018, Ex.B8 is the bunch of property tax receipts in the name
of 1st defendant, Ex.B9 is the Original registered Will dt.12.12.1996,
Ex.B10 is the certified copy of Gift deed executed by Sanka Lakshmi
Narasamma in favour of J.Nagamani dt.23.8.2007.
22. The 1st defendant filed his chief examination affidavit as DW1 which reiterates the contents of written statement. In the cross examination
DW1categorically deposed that his grandfather by name late Sanka
Venkata Subba rao executed an unregistered Will on 25.5.1995 by creating life interest in favour of his wife by name Sanka Lakshmi
Narasamma and vested reminder to the 2nd defendant in respect of entrie plaint schedule property, likewise Sanka Venkata Subbarao created life interest in respect of his 1/3rd share in the Autonagar building in favour of his wife Sanka Lakshmi Narasamma. DW1 deposed that Sanka
Venkata Subba rao created life interest in respect of entire plaint schedule property in favour of his wife Sanka Lakshmi Narasamma and vested reminder in favour of 2nd defendant in the will dated 25.5.1995 and died on 28.5.1995 and after demise of Subba rao, his wife Sanka Lakshmi
Narasamma took possession of entire property and said Naraamma 24 relinquished her life interest in favour of 2nd defendant for a consideration of Rs.1,00,000/- on 25.7.2015 by way of registered document bearing No.4780 of 2015 on the file of SRO, Patamata,
Vijayawada.DW1 deposed that 2nd defendant took possession of entire property on 26.7.2015 and while enjoying the plaint schedule property as absolute owner, gifted the plaint schedule property to him by executing regd.gift deed and delivering the possession of the plaint schedule property to him on 30.07.2015 and since then he is in lawful possession and enjoyment of the plaint schedule property as absolute owner and municipal corporation, Vijayawada mutated his name in property tax registers. DW1 further deposed that he availed a loan from Aditya Birla
Housing Finance Limited by mortgage of plaint schedule property and deposited original Will dt.25.5.1995 with relinquishment deed executed in favour of 2nd defendant and gift deed executed by 2nd defendant in his favour as security alongwith original relinquishment dt.25.7.2015 and original gift deed dated 30.07.2015.DW1 further deposed that his
Grandmother by name Sanka executed and registered Will on 12.12.1996 bequeathing her estate to the 3rd defendant. DW1 further deposed that 2nd plaintiff’s father purchased a house property from APIIC Ltd, in the name of 2nd plaintiff in installments. The entire family used to reside the said house from 1984 till the demise of 2nd defendant’s father. DW1 deposed that plaintiffs are not in possession of plaint schedule property and the documents filed by plaintiffs did not establish the possession and enjoyment of plaint B schedule property by plaintiffs as on the d ate of suit. As such, the plaintiffs are not entitled to the relief of permanent injunction.
23. In the cross examination, DW1 deposed that he got knowledge about Ex.B1 Will prior to filing of said Will before the court. Ex.B1 Will is 25 with him.DW1 admitted that he got it mentioned in his chief examination that his grandfather executed unregistered will on 25.5.1995 and his uncle Juluru Rambabu gave instructions to draft the Will and his father
Sambasivarao and his junior paternal uncle Bhaskara rao and his grandmother Lakshmi Narasamma scribed their signatures as attestors in the will dated 25.5.1995. DW1 deposed that he does not remember whether Nagamani scribed her signature as attesor on the will dt.25.5.1995. DW1 deposed that the said Will is in his custody as on the date of filing of written statement dt.6.6.2019 and there is no specific reason for not filing the will dt.25.5.1995 before the court though the said document is in his custody as on the date of filing written statement.
DW1 further deposed that as on the date of execution of Ex.B1 will he was aged about 13 years. DW1 deposed that he does not know the place of execution of Wills. DW1 deposed that his grandfather and father did automobile business together till the date of death of his grandfather and 2nd plaintiff opted to work as an agent in stock market as per his wish.
DW1 deposed that his grandfather has two sons and one daughter and his father is one son and one daughter. DW1 deposed that plaintiffs are not in possession and enjoyment of schedule property and as such the same is referred in the written statement and his chief examination affidavit but the plaintiff got it mentioned in the plaint that they demanded the plaintiff to vacate the schedule premises on 4.1.2019 and the said averment mentioned by plaintiffs to suit their contention. DW1 deposed that as per ExA11 receipts the address referred as D.No.39-11- 7A, FF-1 but suit is filed on 21.1.2019 and Ex.A11 receipts contain the date as 15.3.2019.DW1 further deposed that he did not scribe his signature as attestor in Ex.B2, one Harinadh and Pavan kumar acted as attestors in Ex.B2. DW1 further deposed that he does not remember the 26 scribe of Ex.B2.DW1 further deposed that his father did not own any property as on the date of execution of Ex.B4 except the property referred in Ex.B3 and his father has no other income source. Dw1 deposed that his father executed Ex.B4 in his favour and gave the property to him and he has not retained life interest during his lifetime and his mother did nto own any assets and income source.
24. DW1 further deposed that no share or assets given to his sister while executing Ex.B4. Dw1 admitted that attestors of Ex.B3 and B4 are one and the same. DW1 deposed that he does not aware whether 2nd plaintiff is an income tax assessee and paying income tax since 1984 and as on the date of death of his grandfather they resided in the house situated at Labbipet. DW1 admitted that his grandparents resided with the 2nd plaintiff till their death. DW1 deposed that they have been residing in ground floor of the house situated in Labbipet prior to the death of his grandparents. DW1 deposed that he came to know after filing the document in the suit that the 2nd plaintiff after discharge of loan sold the property to one Balagani Sudhakar. Dw1 deposed that he did not mention in his chief examination that he is giving evidence on behalf of his father.
DW1 deposed that as per contents of Will dt.12.12.1996 the beneficiary is
Juluru Nagamani/D3 and original will may be in the custody of any person and there is no basis to say that the original Will dt.12.12.1996 within the custody of 2nd plaintiff. Dw1 further deposed that whether his grandmother executed a Will on the same date when his grandfather executed a Will dt.25.5.1995 by bequeathing half of the property to
Dhathatreya Ashramam and remaining half to the 3rd defendant out of property of 406 square yards. DW1 admitted that his grandfather gave his property equally to his two sons.DW1 deposed that he was not present at the time of execution of Will by his grandmother on 25.5.1995. DW1 27 deposed that the Will /Ex.A2 which is confronted to him is not the Will executed by his grandfather and the signature shown to him found on
Ex.A2 Will does not belongs to his father.
25. 2nd defendant is examined as DW2. DW2 filed his chief examination affidavit and stated that his father executed an unregistered Will on 25.5.1995 by creating a life interest in favour of his mother and vested reminder to him in respect of entire plaint schedule property likewise his father created life interest in respect of his property in Autonagar building in favour of his mother and vested reminder to the 2nd plaintiff. DW2 deposed that his mother by name Sanka executed and registered a Will on 12.12.1996 bequeathing her estate to the 3rd defendant and his mother confirmed the execution of Will by his father on 25.5.1995 and bequeath made by his father. DW1 further deposed that the Will dt.12.12.1996 executed by his mother was attested by him and 2nd defendant. Dw2 deposed that plaintiffs fabricated another Will with the same date by forging the signatures of his parents and himself and changed the legacy created by his father. DW2 deposed that the recitals in Will Ex.A1 are created and there is no truth. DW2 deposed that after demise his father, his mother took possession of entire plaint schedule property and his mother relinquished her life interest in his favour for a consideration of
Rs.1,00,000/- on 25.7.2015 by way of registered document No. 4780 of 2015 on the file of SRO, Patamata, Vijayawada. DW2 deposed that he took possession of entire schedule property on 25.7.2015 and while enjoying the property as absolute owner, gifted the plaint schedule property to 1st defendant by executing registered gift deed and delivering the possession of plaint schedule property to him on 30.07.2015. DW2 further deposed that his father purchased a house property from APIIC Ltd in the name of 2nd plaintiff in installments and entire family used to reside in the said 28 house from 1984 onwards till demise of his father. So, the allegation that 2nd plaintiff purchased the house property in Autonagar is false and the plaintiffs are not in possession of the plaint schedule property at any point of time.
26. The sister of 2nd plaintiff and 2nd defendant who is the 3rd defendant herein is examined as DW3 and Dw3 filed her chief examination affidavit stating that her father executed an unregistered Will on 25.5.1995 by creating a life interest in favour of his mother and vested reminder to her in respect of entire plaint schedule property, likewise, her father created life interest in respect of his property in Autonagar building in favour of her mother and vested reminder to the2nd plaintiff. DW3 deposed that her mother by name Sanka executed and registered a Will on 12.12.1996 bequeathing her estate to her. DW3 deposed that in the said Will her mother confirmed the execution of Will by her father on 25.5.1995 and bequeath made by her father. DW3 deposed that the Will dated 12.12.1996 executed by mother was attested by 2nd plaintiff and 2nd defendant.
27. In the cross examination DW3 deposed that he is producing Ex.B9 original registered Wild dated12.12.1996. DW3 deposed that he studied upto Intermediate. DW3 deposed that it is mistakenly mentioned in her chief examination affidavit that her father executed a Will on 25.5.1995 by creating life interest in favour of her mother and vested reminder in her favour in respect of plaint schedule property. DW3 voluntarily deposed that as per Will executed by her father he created life interest in fafovur of her mother in respect of all the assets and vested reminder in favour of his children by specifically referring the property situated in
Mogalrajpuram given to him and property situated in Autonagar i.e.MIG 29 21 and a shop given to 2nd plaintiff and property situated in Labbipet given to DW2. DW3 deposed that her father resided in Vijayawada till his death. DW3 deposed that she does not know where the Will dt.25.5.1995 executed and whose presence the said Will executed. DW3 deposed that he does not know the scribe of the Will and she has not filed any Will executed by her mother on 12.12.1996. DW3 deposed that she was not present at the time of execution of Ex.B9 so also her husband and her mother executed a gift settlement deed in her favour in respect of property situated in Mogalrajpuram during 2007-2008 and her mother handed over the gift settlement deed and the Will to her during 2q007-2008. DW3 deposed that she informed about execution of gift settlement deed to her brothers and on the instructions of her husband gift settlement deed was drafted. DW3 further deposed that she came to know recently about the
Will when she verified about the link documents of gift settlement deed.
DW3 deposed that her father resided in Kanna nagar as on the date of his death and her father incurred income from rents, Ex.A2 is not will executed by her father on 25.5.1995 and she does not remember the details of Will executed by her father on 25.5.1995. DW3 deposed that prior to the death of her mother the 2nd plaintiff resided in the house situated in Labbipet for a period of 3 months with a view to serve her mother. DW3 deposed that her mother resided in ground floor of 1st defendant prior to her death and her mother maintained herself with the rents. DW3 further deposed that her marriage was performed during 1975 and 2nd plaintiff’s marriage was performed during 1992. DW3 deposed that her father purchased MIG 21 in the name of 2nd plaintiff, and 2nd plaintiff himself purchased MIG 17.DW3 deposed that she does not remember in which year the 2nd plaintiff purchased MIG 17. DW3 deposed that she does not know the value of the property given to her. DW3 30 admitted that 2nd plaintiff did not raise any objection against the property given to her.
28. The contention of the defendant is that there is another Will on the same date in favour of defendants 1 and 2 but the said Will is not filed by them to prove the contention of the defendant. Further the defendant filed
Ex.B1 Will executed by Sanka Lakshmi Narasamma dated 12.12.1996 but the defendant did not examine the attestor of the said Will to prove the said Will. Hence, as per Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act the said Will under Ex.B1 is not proved and hence, Ex.B1 is no way helpful to the case of the defendant. As the defendants have not filed any Will dated 25.5.1995, Ex.B1 and Ex.B2 to
B4 are also no way helpful to the case of the defendant. Further, the properties under Exs.B3 and B4 are different. Though there is recital about the plaint B schedule property it is no way helpful to the case of the defendant as the defendant has not filed the said Will in this court. Since the defendant failed to prove their contention and Exs.B5 to B10 also no way helpful to the case of the defendant.
29. It is not disputed with regard to the relationship between plaintiffs and the defendants. As per the contention of the plaintiffs the father of the 2nd plaintiff and 2nd defendant executed a Will in favour of defendants 1 and 2, plaintiffs 1 and 2 and mother of 2nd plaintiff and 2nd defendant.
The plaintiff clearly proved Ex.A2 by examining PWs.2 and 3 who are the attestor and scribe of Ex.A2.
30. The contention of the defendant is that plaintiffs fabricated another
Will with the same date by forging the signatures of late Sri Sanka
Venkata Subba rao,Sanka Lakshmi Narasamma, 2nd defendant and changed the legacy created by late Sanka Venkata Subba rao, therecitals 31 in the Will filed alongwith the plaint are created and there is no truth. But the defendant has not filed the Will dt.25.5.1995 alleged by him.
31. DW2 in the cross examination clearly admitted that at the time of execution of Will by his father, his mother, sister, his brothers and himself were present. Further admitted that his father executed a Will bequeathing equal value of share to him and his brother i.e.2nd plaintiff.
Hence, this court feels that Ex.A2 Will is genuine one and the plaintiffs are entitled to the relief of declaration in respect of the plaint B schedule property by virtue of Will dated 25.5.1995. Accordingly, this issue is answered.
32. ISSUE No.2:
Whether the plaintiffs are entitled to the relief of permanent
injunction as prayed for?
To prove the contention of the plaintiff, the plaintiff got filed Ex.A5,
Ex.A7, Ex.A11 clearly shows that plaintiffs have been in possession and enjoyment of plaint schedule property as on the date of filing of suit and on perusal of Ex.A11 is pertaining to the year 2018-2019 and clearly shows that plaintiffs have been in possession and enjoyment of the plaint schedule property as on the date of filing of suit. Further DWs.1to 3 categorically admitted that Ex.A11 stands in the name of 2nd plaintiff relating to the plaint B schedule property and plaintiff resided in the house and the said Ex.A11 receipt contains the date as 15.3.2019 and date of suit is dated 21.1.2019.Hence, the plaintiffs clearly established that they have been in possession and enjoyment of plaint schedule property as on the date of filing of suit. Hence, plaintiffs are entitled to the relief of permanent injunction as prayed for. Accordingly, this issue is answered in favour of the plaintiff and against the defendant.
32
33. ISSUE No.3:
Whether the Will dated 25.5.1995 propounded by the
defendants 1 and 2 is true, valid and binding on the plaintiff?
The defendants have not filed any Will dated 25. 5.1995 which is propounded by defendants 1 and 2 ,hence the defendants failed to prove that the Will dated 25.5.1995 as alleged by them. Hence, the Will dated 25.05.1995 propounded by the defendants 1 nd 2 is not true, valid and not binding on the plaintiffs. Hence, the said Will is not binding on the plaintiffs as it is not in existence.Accordingly, this issue is answered.
34 ISSUENo.4:
To what relief?
In view of the findings on issues 1 to 3, the plaintiffs are entitled for the reliefs as prayed for.
In the result, the suit is decreed with costs by declaring that the plaintiffs are the absolute owners of the plaint B schedule property with all easementary rights of parking and construction of stair case at the specified place by virtue of Will dated 25.5.1995 and also granted consequential relief of permanent injunction restraining the defendants, their men and followers, successors, nominees and agents from ever interfering with the plaintiffs’ possession and enjoyment of plaintiffs forever in any manner.
Typed to my dictation to the Stenographer on System, typed by him, corrected and pronounced by me in the open court on this the 21st day of NOVEMBER, 2023.
VI ADDL.SENIOR CIVIL JUDGE
VIJAYAWADA
FAC/VII ADDL.SENIOR CIVIL JUDGE
VIJAYAWADA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Plaintiffs: Defendants: PW1:Sanka Bhaskara Rao DW1: Sanka Nanda Kumar PW2: Lingamsetty Sankara Rao DW2: Sanka Sambasiva rao 33
PW3: Movva Murali Krishna DW3: Juluru Naga Mani
Documents marked for Plaintiffs: Ex.A1: Certified copy of Regd.GPA given by the 1st plaintiff to the 2nd plaintiff dated 31.12.1998.
Ex.A2: Unregistered Will executed by the father of 2nd plaintiff dated 25.5.1995.
Ex.A3: Relinquishment deed executed by Sanka Lakshmi Narasamma dated 25.7.2015.
Ex.A4: Settlement deed executed by the 2nd defendant in favour of 1st defendant dated 30.07.2015.
Ex.A5: Particulars of payment particulars given by BSNL for the telephone 0866-2474074 standing in the name of 2nd plaintiff at plaint schedule property dated 28.1.2017.
Ex.A6: Death certificate issue dby VMC, for the death of Sanka Lakshmi Narasamma on 22.12.2018.
Ex.A7: HP gas connection book in the name of Sanka Venkata Subba Rao, who resided at another property of 2nd plaintiff at Autonagar, Vijayawada.
Ex.A8: Sale deed executed by APIIC in the name of 2nd plaintiff dated 27.3.1992.
Ex.A9: Digitally signed certified copy of sale deed executed by 2nd plaintiff in favour of Palagani Sudhakar rao dt.22.6.2010.
Ex.A10: E.C. for the plaint A schedule property for the period from 1.5.1995 to 16.1.2019, dated 17.01.2019.
Ex.A11: Gas delivery receipts vide No.644715( 7 in number).
Ex.A12: Office copy of complaint given to the Commissioner of Police, dt.2.2.2019.
Ex.A13: Complaint given to Asst.Commissioner of police alongwith acknowledgement dt.2.2.2019.
Ex.A14: Digital copy of memo issued by the Commissioner of Police, dt.7.2.2019.
Defendants: Ex.B1: Certified copy of registered Will executed by S.Lakshmi Narasamma on 12.12.1996.
Ex.B2: Letter issued by Home Finance Aadithya Birla Housing Finance dt.18.3.2023.
34
Ex.B3: Certified copy of Registered Relinquishment deed executed by Sanka Lakshmi Narasamma in favour of the 2nd defendant dated 25.7.2015.
Ex.B4: Certified copy of Registered Gift Deed executed by the 2nd defendant in his favour.
Ex.B5: Property tax demand notice in the name of 1st defendant
dated 20.04.2017.
Ex.B6: Integrated Demand bill for the year 2018-19 in the name of 1st defendant issued by the Municipal Corporation dated 12.04.2018.
Ex.B7: Water and sewerage charges bill for 2018-2019 in the name of the 1st defendant issued by the Municipal Corporation dated 14.5.2018.
Ex.B8: Bunch of property tax receipts in the name of 1st defendant.
Ex.B9 is the Original registered Will dt.12.12.1996.
Ex.B10: Certified copy of Gift deed executed by Sanka Lakshmi Narasamma in favour of J.Nagamani dt.23.8.2007.
VI ADDL.SENIOR CIVIL JUDGE,
VIJAYAWADA.
FAC/VII Addl.Senior Civil Judge, Vijayawada 35
IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL JUDGE
VIJAYAWADA.
Present: SMT. VELPULA BHAVANI
VI Addl. Senior Civil Judge, Vijayawada
FAC/VII Addl.Senior Civil Judge, Vijayawada
Tuesday, this the 21 st day of NOVEMBER, 2023
O.S.No.17/2019
Between:
1.Sanka Aditya Manasa Datta, s/o. Sanka Bhaskara Rao, Hindu, aged about 25 years, emplkoyee and residing # 2809, Shatha tower, Dubai Media city, Dubai 2668, United Arab Emirates, rep.by his father and GPA agent as per GPA dt.31.12.2018 executed before JointSub Registrar,Patamata,Vijayawada i.e.2nd plaintiff. 2.Sanka Bhaskara Rao, s/o.late Sanka Venkata Subba Rao, Hindu, aged about 57 years, business, r/o.D.No.29- 14-62, 2nd and 3rd floors, Seshadri Sastry street, Governorpet, ….Plaintiffs Vijayawada, Krishna District 520 002.
And
1.Sanka Nanda Kumar, s/o.Sambasiva Rao, Hindu, aged about 37 years, r/o.D.No.39-11-7A, Groundfloor, Turlapati Kutumba Rao street, Labbipet, Vijayawada- 520010. 2.Sanka Sambasiva Rao, s/o.late Sanka Venkata Subba Rao, Hindu, aged about 66 years, residing in Groundfloor D.No.39-11-7A, Turlapati Kutumbarao street, Labbipet, Vijayawada-10. 3.Juluru Nagamani, w/o.Rambabu, Hindu, Housewife, aged about 50 years, r/o.D.No.40-2-14, Lakshmi nagar, Mogalrajapuram, Vijayawada-
520 010. …..Defendants
The suit is filed by the plaintiff against the defendants for declaration that the plaintiffs are the absolute owners of the plaint B schedule property with all esementary rights of parking and construction of stair case, at the specified place in the Will and also grant permanent injunction restraining the defendants, their men and followers, nominees, successors and agents from ever interfering with the plaintiffs’ possession and enjoyment of the plaintiffs forever in any manner and for costs.
Plaint presented on 21-01-2019 Plaint filed on 21-01-2019.
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Value of the suit for the purpose of court fee and jurisdiction U/s.50(1) of APCF & S.V.Act is Rs.26,20,697/- on which a court fee of Rs.28,726/- is paid U/s.24(b)of APCF &S.V.Act.
Cause of action for the suit arose since 25.5.1995 when the Will was executed by Sanka Venkata Subba rao bequeathing his properties with conditions on the enjoyment of the same and since 28.5.2005 when the said Venkata Subba Rao died in a train accident at Bangalore and since on 22.12.2018 when the life interest holder on the properties bequeathed by Venkata Subba Rao and on 30.07.2015 when the 2nd defendant in pursuance of said document dated 25.7.2015 executed a Gift deed in the name of the 1st defendant which are executed and registered behind back of plaintiffs even though they are in possession and enjoyment of the said property alongwith Lakshmi Narasamma and since 4.1.2019 when the plaintiffs were demanded by defendants 1 and 2 to vacate and deliver the plaint B schedule properly which was bequeathed to the plaintiffs and at Vijayawada where the above transactions took place and within the jurisdiction of this court.
Particulars of suit claim:
The relief of declaration of title of the plaintiffs Are the absolute owners of the plaint B schedule Property out of the plaint A schedule property and Consequential permanent injunction restraining the Defendants, their men, followers, agents, nominees Etc., from interfering with the possession and Enjoyment of the plaint B schedule by the plaintiffs is calculated as per the Certificate of value of the property by Sub Registrar-121, Patamata, Vijayawada
Value of site of Rs.83,055/- x 50800/- = Rs.42,19,194-00
RCC built first floor- 900 x1030 = Rs. 9,27,000-00 ACC sheet roof area 170 x 560 = Rs. 95,200-00 --------------------- Total = Rs.52,41,394-00
U/s.24(b) value of the suit is one half of total value is Rs.26,20,697/-.
On which a court fee of Rs.28,726/- is paid U/s.24(b) of APCF & S.V.Act.
This Original suit coming on 16-11-2023 for final hearing before me in the presence of Sri.A.Ramakoteswara Rao, Advocate for the plaintiff and of Sri.K.Sanjeev, Advocate for defendants 1 and 2 and 3rd defendant remained exparte and the matter is having stoodover to this day for consideration, this Court upon hearing and perusing the entire material on record and upon consideration, doth Order and Decree:
i) that the suit be and the same is hereby decreed by declaring that the plaintiffs are the absolute owners of the plaint B schedule property with all easementary rights of parking and construction of stair case at the specified place by virtue of Will dated 25.5.1995
and
37 ii) that the defendants, their men, followers, successors, nominees and agents be and are hereby restrained from ever interfering with the plaintiffs’ possession and enjoyment of plaintiffs forever in any manner by way of granting permanent injunction and iii) that the defendants do pay to the plaintiffs a sum of Rs.2,91,038-00 towards costs and do bear their own costs of Rs.nil. (No bill of costs filed) (copy of plaint schedule is attached to decree)
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT ON THIS THE
21ST DAY OF NOVEMBER, 2023.
VI ADDL.SENIOR CIVIL JUDGE:VIJAYAWADA FAC/VII ADDL.SENIOR CIVIL JUDGE
VIJAYAWADA
Memo of costs for Plaintiff: 1.stamp on vakalat; Rs. 2-00 2.Stamp on plaint: Rs. 28,726-00 3.Stamp on process: Rs. 40-00 4.Advocate fee: senior: Rs.2,62,070-00 5.Writing charges: Rs. 100-00 6.Typing charges: Rs. 100-00 ---------------------- Total= Rs.2,91,038-00 ---------------------- Defendant:
No bill of costs filed.
VI ASCJ/VJA. FAC/VII ASCJ/VJA.
Note: The parties should apply as soon as possible for the return of all exhibits which they may wish to preserve as the record will be liable to be destroyed after 3 years from the date of decree or order.