HON’BLE SRI JUSTICE R.KANTHA RAO A.S.NO.1099 of 1997 DATED: 30.03.2010 BETWEEN: B.Sarojamma and others .. Appellants And N.Radhamma and another .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO A.S.NO.1099 of 1997 JUDGMENT:- This is an appeal filed against the decree and judgment dated 04.07.1997 passed by the Family Court-cum-V Additional Judge, Tirupathi in O.S.No.95 of 1988. 2. The respondent/plaintiff filed the suit for partition of the plaint schedule property which is a terrace house in Tirupati town in two equal shares and allot one such share to her against the defendant No.1, who is no other than her brother. Her brother B.Srinivasulu Naidu died while the suit was pending before the trial Court and the appellants, who are his legal representatives are brought on record and they contested the suit. Ultimately, the learned trial Court on 04.07.1997 passed a preliminary decree in favour of the plaintiff. Feeling aggrieved, the appellants, who are the legal representatives of the deceased first defendant preferred this appeal. 3. The factual matrix necessary for consideration in the present appeal is as follows: 4. It is the version of the respondent that the plaint schedule property which is a terraced house measuring 20 feet x 60 feet bearing door No.57 in Ward No.1, situated at Nehru Street, Tirupathi Town is the self acquired property of her mother Muni Lakshmamma, who purchased the vacant site from Tirupathi Municipality under a registered sale deed dated 25.04.1933 and thereafter, she constructed the plaint schedule house in the said site with her own funds and thus, she became absolute owner of the said house and was in possession and enjoyment of the same. She died intestate in the year 1980 leaving behind, the respondent and the deceased first defendant and one Tulasamma, who is the sister of the respondent as her legal heir. Tulasamma also died in the year 1987 leaving behind the respondent and the deceased first defendant as her legal heirs. Thereafter the respondent and the deceased first defendant, who succeeded to the said property were in joint possession and enjoyment of the same, each having undivided half share. According to the respondent, the deceased first defendant was indulging in acts prejudicial to her interest, she demanded partition of the property by metes and bounds, for which the first defendant did not respond properly and thereupon she got issued a legal notice dated 20.03.1988 which was neither replied by the first defendant nor he took any steps to partition the plaint schedule house. Thereupon, it is stated that the respondent instituted the suit. 6. It was the contention of the first defendant/appellant that the plaint schedule house was purchased by Subrahmanyam Naidu, who is the father of the first defendant in the name of Muni Lakshmamma, their mother with his funds while working as a clerk in Tirumala Tirupathi Devasthanams, but the sale deed was obtained in the name of Muni Lakshmamma. The version of the appellants is that Subrahmanyam Naidu was paying taxes and the plan for the construction of the schedule mentioned house was also approved in the name of Subrahmanyam Naidu and therefore, in fact, the plaint schedule house is the property of Subrahmanyam Naidu, which was nominally kept in the name of Muni Lakshmamma. They also contended that incorporating all these averments, the first defendant gave a suitable reply on 07.04.1998 to the legal notice issued by the respondent/plaintiff. That subsequently on 12.10.1966 Subrahmanyam Naidu died intestate. Thereafter, Muni Lakshmamma, Tulasamma and the family members of the first defendant were residing in the suit house. That on 24.06.1979 Muni Lakshmamma executed unregistered will bequeathing two rooms on the western side of the suit schedule house in favour of Tulasamma creating life interest, remainder to the plaintiff and the rest of her interest in the suit property to the first defendant. It is the version of the respondent that even during her life time, Muni Lakshmamma executed a registered settlement deed dated 11.03.1980 in respect of the said two rooms in favour of Tulasamma giving life interest and remainder to the plaintiff. Thus, according to the respondent, it was done by Muni Lakshmamma to avoid any sort of misunderstandings in the family. Tulasamma was in possession and enjoyment of the said two rooms and died intestate in the year 1987 and thereafter, the respondent took possession of the same and has been living therein. That the claim of the defendants is mainly based on the contention that the plaint schedule property is not the self-acquired property of late Muni Lakshmamma and it is the property in fact, purchased by late Subrahmanyam Naidu and in the alternative that by virtue of the will dated 24.06.1979 executed by late Muni Lakshmamma in favour of the first defendant after her death the first defendant became entitled to the property and as such the plaintiff has no right so seek partition in the plaint schedule house. 7. Basing on the rival contentions, the learned trial court settled the following issues and additional issues: Issues: 1. Whether the suit house is the self acquired of plaintiff and defendant’s mother and plaintiff is entitled to half share? 2. Whether the mother of the plaintiff and the defendant settled two rooms in the suit house of life estate on Tulasamma and after her death to the plaintiff and remainder to the defendant? 3. To what relief? Additional Issues: 1. Whether the plaint schedule property was purchased by the grand father of the defendant by name Subramanyam Naidu, in the name of his wife? 2. Whether the first defendant and his sons and his mother succeeded to the entire plaint schedule property? 3. Whether the plaintiff is out of possession and whether the Court fee paid is not correct? 4. Whether the mother of the plaintiff executed the will dated 24.06.1979 bequeathing the two rooms west of the suit schedule property for the life time of the said Tulasamma as alleged in the written statement. 8. To establish their respective cases, the respondent/plaintiff herself examined as PW.1 and marked Exs.A.1 to A.9. Whereas the appellants/defendants examined DWs1 to 3 and marked Ex.B.1 to B.13 and also Ex.C.1. 9. Upon considering the entire material on record, in the light of the contentions urged by both the parties, the learned trial Court answered all the issues in favour of the respondent/plaintiff and accordingly decreed the suit as mentioned above, against which the present appeal is preferred by the appellants/defendants. 10. I have heard the learned counsel appearing for the appellants/defendants and the respondent/plaintiff. 11. On hearing both sides and perusing the judgment of the trial court and all the material papers available on record, this court considers that the following points would arise for determination in the present appeal: 1. Whether the paint schedule house is the self-acquired property of late Muni Lakshmamma, who is the mother of the respondent/plaintiff and the deceased first defendant or whether it is their ancestral property? 2. Whether the defendants proved the alleged unregistered will dated 24.06.1979 said to have been executed by late Muni Lakshmamma in favour of the deceased first defendant? 3. Whether the trial Court is justified in passing a preliminary decree granting half share to the respondent/plaintiff in the schedule mentioned house? POINT No.1 12. To substantiate her version that the plaint schedule house is the self acquired property of her mother Muni lakshmamma. The respondent/plaintiff filed registered sale deed dated 25.04.1933 relating to the site in which the plaint schedule house was subsequently constructed. The registered extract of the sale deed is marked as Ex.A.1. The said document reveals that the property was purchased by Muni Lakshmamma under registered sale deed. This apart, the respondent/plaintiff, who was examined as PW.1 stated in her deposition before the trial Court that the property was purchased by late Muni Lakshmamma with her own funds and she herself constructed the house in the site purchased by her under the above mentioned registered sale deed. The version of the respondent is that the property was purchased by late Subrahmanyam Naidu with his own funds while working as a clerk in Tirumala Tirupathi Devasthanams, who nominally obtained the sale deed in the name of Muni lakshmamma. 13. To substantiate their version, the appellants filed Ex.B.1 permission given by Tirupathi Municipality to Subrahmanyam Naidu to construct the house and that Exs.B.4 to B.6 and B.11, the tax receipts which are in the name of Subrahmanyam Naidu. Ex.B.7, B.9 and B.10 are the demand notices issued to Subrahmanyam Naidu. Relying on the said documents, the appellants sought to contend that since the building plan was approved in the name of Subrahmanyam Naidu, Subrahmanyam Naidu was paying taxes and demand notices were issued to him. It has to be held that the property, in fact, belongs to Subrahmanyam Naidu, but not to Muni lakshmamma. 14. First of all, under law, the appellants are precluded from taking the plea that the house property was kept by Subrahmanyam Naidu nominally in the name of Muni Lakshmamma. Further, the appellants did not bring on record any circumstances which prompted Subrahmanyam Naidu to purchase the house site in the name of Muni Lakshmamma. Since the house site was purchased as far as back in the year 1933 and thereafter, a house was constructed in the said property, it is most likely that Subrahmanyam Naidu might be paying taxes to the municipality or the municipality issuing demand notices to him since he is no other than the husband of Muni Lakshmamma, the male member of the family. No evidence was placed before the trial Court by the appellants saying that Subrahmanyam Naidu was an employee in Tirumala Tirupathi Devasthanams and that he purchased the house site covered by Ex.B.1 with his own earnings. Since the property, admittedly stands in the name of Muni Lakshmamma, she must be considered to be owner of the said property having absolute right over the same. If it is not her property, the contention of the appellants that she executed unregistered will dated 24.06.1979 in favour of the first defendant is not understandable. Therefore, from the evidence, the learned trial Court rightly arrived at the conclusion that the plaint schedule house is the self acquired property of late Muni Lakshmamma and not the property purchased by Subrahmanyam Naidu with his own funds, benami in the name of his wife which plea is impermissible in law. POINT No.2 15. Since the appellants had set up unregistered will dated 24.06.1979 allegedly executed by Muni Lakshmamma in favour of the first defendant, the burden lies on them to prove that the said will is genuine, executed by Muni Lakshmamma while she was in a sound disposing state of mind. The suspicious circumstances viz. why she had excluded the respondent/plaintiff and why did she execute a registered settlement deed dated 11.03.1980 in normal course, rules out the possibility of Muni Lakshmamma again executing unregistered will in favour of the first defendant. The said suspicious circumstances surrounding the execution of the will are to be repelled by the appellants, who sought to propound the will. This apart, according to the appellants, the will was executed on 24.06.1979 by Muni Lakshmamma, whereas admittedly Ex.A.3 settlement deed was executed by Muni Lakshmamma on 11.03.1980. If that is so, Muni Lakshmamma, in fact, if had she executed any such will, she must have definitely made a mention about the same in the settlement deed which was executed at a later point of time. DW.1 admitted in his cross examination that his paternal grandmother did not make any mention about the will dated 24.06.1979 in the settlement deed executed by her on 11.03.1980. 16. This apart, earlier there was a suit between the parties which is O.S.No.57 of 1994 on the file of the Principal Subordinate Judge, Tirupathi. The said suit is filed by the appellants. If at all, in fact there is a will left by Muni Lakshmamma, the appellants should have mentioned the said fact in the plaint in O.S.No.57 of 1994 and they also would have filed the unregistered will along with the said suit. But PW.1 admitted in the cross-examination that he has not mentioned the same in the plaint in O.S.No.57 of 1994 nor did they file the unregistered will along with the said suit. According to the respondent/plaintiff, Ex.B.2 unregistered will is a forged document brought into existence by the appellants only to defeat her claim. According to the appellants, the scribe of Ex.B.2 will is one Satyam, who is the clerk of P.K.Vijaya Raghavan, Advocate at Tirupathi and the said Satyam passed away. According to them, the attestors of the will are M.Adinarayana Murthy and Kodandaram. Out of them, Kodandaram died and Adinarayana Murthy is alive. But the appellants did not take any steps before the trial Court to examine at least the attesting witness, who is alive. They have also not adduced any other evidence required under law to prove the execution as well as the contents of Ex.B.2 will. As already said, there is no dispute about Muni Lakshmamma executing Ex.A.3 registered settlement deed dated 11.03.198. The learned trial Court itself compared the signatures of Muni Lakshmamma on Ex.A.3 and Ex.B.2 and arrived at the definite opinion that both are not identical. Such a course is open to the learned trial Court under law and the opinion expressed by the trial Court about the signature of Muni Lakshmamma and Ex.B.2 disputed will can be taken into consideration along with the other material forthcoming in this case. Therefore, in my considered view, the learned trial Court, rightly arrived at the conclusion that the appellants had failed to prove the execution of Ex.B.2 will and also were unable to explain the suspicious circumstances surrounding the will and the ultimate finding arrived at by the trial Court that the said will is not genuine needs no interference in this appeal. POINT No.3 17. As per Section 8 of the Hindu Succession Act, if any male dies intestate, the class I heirs are sons and daughters. Similarly, if any Hindu female dies intestate, the property will devolve on the sons, daughters etc. as per Section 15 of the Hindu Succession Act. Therefore, the respondent/plaintiff is entitled for her share in the plaint schedule house even if the property is considered to be the self- acquired property of late Muni Lakshmamma or if it is considered to be the ancestral property of the respondent/plaintiff and the deceased first defendant. Only when the Court comes to the conclusion that the appellants/defendants proved Ex.B.2 will and it is true and genuine and was executed by late Muni Lakshmamma in sound disposing state of mind, the appellants/defendants will succeed. But while dealing with point No.2, this Court affirmed the finding that the appellants failed to establish the execution of Ex.B.2 will and its genuineness and they failed to repell the suspicious circumstances surrounding the will as discussed therein. Therefore, the trial Court is perfectly correct and justified in passing a preliminary decree in favour of the respondent/plaintiff. 18. For the foregoing reasons, I absolutely see no merit in the appeal and accordingly dismiss the same without any order as to costs. ______________ R. KANTHA RAO,J Date: 30.03.2010 kvrm