*HON’BLE SRI JUSTICE P.S. NARAYANA +A.S. No.929 of 2000 % 31.5.2010 #1. Pentyala Koteswara Rao, died per L.R. appellant No.2. …Appellants/Defendants V. $ 1. Vaddavalli Allemma and another. ..Respondents/ Plaintiffs. !Counsel for the appellants: Sri M.S.N. Prasad Counsel for the respondents: Sri Pedda Babu < Gist: >Head Note: ?Cases referred: 1. 2001 (5) ALD 402 (FB) 2. 2002 Suppl. (2) ALD 822 (DB) 3. AIR 1997 Supreme Court 1534 HON’BLE SRI JUSTICE P.S. NARAYANA A.S. No.929 of 2000 Date:May 31, 2010 Between: 1. Pentyala Koteswara Rao, died Per L.R. appellant No.2 2. Pentyala Kumaramma … Appellants/Defendants And 1. Vaddavalli Allemma and another … Respondents/Plaintiffs * * * HON’BLE SRI JUSTICE P.S. NARAYANA A.S. No.929 of 2000 JUDGMENT: Episode in brief: The unsuccessful defendant Pentyala Koteswara Rao in O.S.No.85 of 1987 on the file of the Senior Civil Judge, Addanki, had preferred this appeal. The appellant- defendant died and the second appellant Pentyala Kumaramma, wife of said Pentyala Koteswara Rao, was brought on record as per the order dated 14.9.2009 in A.S.M.P.No.1542 of 2009. 2. Pentyala Ramaiah, the first plaintiff in the said suit, died. Respondents in the present appeal are plaintiffs 2 and 3 in the said suit. The third plaintiff was added as per the orders made in I.A.No.388 of 1990, dated 20.7.1994, in the said suit O.S.No.85 of 1987 aforesaid. The third plaintiff was declared as major as per the orders in I.A.No.954 of 1998 dated 02.11.1998 as the guardian was discharged as per the orders dated 02.11.1998 made in I.A.No.955 of 1998. 3. The suit was filed for delivery of plaint ‘A1’ schedule property to plaintiffs 2 and 3 or in the alternative for partition of plaint ‘A’ schedule property into three equal shares and allot two such shares to the plaintiffs 2 and 3 and put them in possession of the same and also for mesne profits and for declaration of right and title of the second plaintiff relating to plaint ‘B’ schedule property and for consequential permanent injunction and for declaration of first plaintiff’s right over plaint ‘C’ schedule property and separate possession of half share to the second plaintiff and for mesne profits relating to the said ‘C’ schedule properties as well and for other appropriate reliefs. 4. The learned Senior Civil Judge, Addanki, on the strength of the respective pleadings, having settled the issues and additional issues, recorded the evidence of P.Ws.1 to 4, D.Ws.1 to 3, marked Exs.A-1 to A-9, Exs.B-1 to B-8 and after answering the issues came to the conclusion that respondents in the present appeal, the plaintiffs, are not entitled for possession of the plaint ‘A’ schedule properties, since there was no prior partition and the plaintiffs are entitled to a preliminary decree of partition of plaint ‘A’ schedule property (excluding Ac.2-00 in item No.2 of the plaint ‘A’ schedule in S.No.439/2 agreed to be given to the appellant-defendant by his mother under Ex.B-8) into three equal shares by metes and bounds and to allot two such shares to plaintiffs 2 and 3 and for separate possession. The title to ‘B’ schedule property of second plaintiff had been declared and consequential permanent injunction also had been granted relating to plaint ‘B’ schedule property and further it was declared that the first plaintiff was the absolute owner of the plaint ‘C’ schedule property and the second plaintiff is entitled to half share in the said plaint ‘C’ schedule property on partition and that relating to the respective shares the plaintiffs are entitled to the mesne profits to be worked out by separate applications and ultimately the relief for possession of the plaint ‘A’ schedule property to plaintiffs 2 and 3 and future profits therein had been dismissed. Aggrieved by the same, as already aforesaid, the unsuccessful defendant in O.S.No.85 of 1987 aforesaid had preferred the present appeal and the said appellant having died, his wife was brought on record as second appellant as already stated supra. 5. Contentions of Sri M.S.N. Prasad: Sri M.S.N. Prasad, the learned counsel representing the appellant in all thoroughness had taken this Court through the grounds of appeal, the respective pleadings of the parties, the evidence available on record and the findings recorded by the trial court as well and would maintain that the trial court totally erred in appreciating the oral and documentary evidence available on record. The learned counsel also would maintain that the evidence of P.Ws.1 to 4 being not trustworthy, the said evidence should have been rejected by the trial court. The learned counsel also had drawn the attention of this Court to the oral evidence on behalf of the defendant, D.W.1, D.W.2 and D.W.3, and further pointed out to Exs.B-1 to B-8 and would maintain that in the light of the convincing evidence the trial court ought to have preferred this evidence to that of P.Ws.1 to 4 and Exs.A-1 to A-9. The learned counsel also would maintain that the first plaintiff had no independent property or independent source of income for the purpose of purchasing the site shown in the plaint ‘C’ schedule for construction of house and, hence, the findings recorded by the trial court in this regard cannot be sustained. The counsel also would maintain that the property covered by Ex.A-5 was purchased with the funds of the appellant and the document was got written in the name of first plaintiff without his knowledge by the mother of the appellant, he being the eldest member of the family at that point of time. The learned counsel also would maintain that the assessment made in the name of the appellant also had been ignored by the trial court. While further elaborating his submissions the learned counsel would maintain that the trial court totally erred in granting the relief in favour of the second plaintiff as prayed for, since in the light of the evidence available on record it cannot be said that the ‘B’ schedule property was given to P.W.1 towards ‘pasupu kumkuma’. This ‘pasupu kumkuma’ gift even if taken the same being not registered, it would not enure to the benefit of the second plaintiff at all. The learned counsel also made elaborate submissions relating to the entries made in revenue records and would maintain that these entries would not confer any title, whatsoever. The learned counsel also pointed out the other findings recorded in this regard and would maintain that the said findings are unsustainable and when once it is clear that no title can be claimed by virtue of the so called ‘pasupu kumkuma’, automatically the claim of the second plaintiff would fall to the ground. While further elaborating his submissions the learned counsel also would maintain that the observations of the trial court that the second plaintiff has been in peaceful, continuous and hostile possession of ‘B’ schedule property and perfected title by adverse possession, these findings also cannot be sustained. The reasoning adopted by the trial court is more based on the surmises and conjunctures and there is no clear evidence available on record in this regard. Further, the counsel would maintain that even otherwise Ex.A-6, the Will dated 11.9.1986, cannot be believed and at any rate the same was not duly proved. The learned counsel while further elaborating his submissions had pointed out that there are several suspicious circumstances surrounding the alleged Will and the mere registration as such may not be sufficient to take that the said Will had been duly proved. The learned counsel would maintain that the executant was a thumb impressionist and, hence, such executant could not have signed at all. Apart from this grave suspicious circumstance, the said executant though a permanent resident of Chandalur and though Sub-Registrar’s office is available at Inkollu very near to the said village, why this old man was taken to Ongole, which is far away. This aspect also may have to be looked into. The learned counsel also pointed out to the other evidence available on record and would maintain that in the light of the facts and circumstances since the findings recorded by the trial court are unsustainable, this appeal to be allowed. The learned counsel also relied on certain decisions to substantiate his submissions. 6. Contentions of Sri G. Pedda Babu: Sri G. Pedda Babu, the learned counsel representing respondents-plaintiffs 2 and 3 would maintain that the trial court appreciated the oral and documentary evidence available on record in proper perspective and recorded appropriate findings. The learned counsel would maintain that the theory of the executant being only a thumb impressionist and not a signatory, this was neither pleaded nor taken in the trial court and this ground at least was not raised in the grounds of appeal and by way of surprise these submissions are being made for the first time at the time of advancing arguments and, hence, this cannot be said to be a suspicious circumstance at all. The learned counsel also would maintain that since the Will had been duly proved in accordance with law, the findings in this regard cannot be found fault at all. The mere fact that the Will was registered at Ongole would not alter the situation, since there is no any embargo at all in this regard imposed by law. The learned counsel also would maintain that it is not in controversy that the marriage of the second plaintiff was celebrated even in the year 1968 and it is also not in controversy that the ‘B’ schedule property being enjoyed by the second plaintiff without any interference, whatsoever, continuously from the said time onwards as on to this day and it is clear if the date of suit is to be taken into consideration, the claim, if any, in this regard would be otherwise clearly barred and, hence, the findings recorded by the trial court that the second plaintiff had perfected her title by way of prescription and adverse possession, these findings cannot be found fault. The learned counsel also pointed out the Record of Rights, the mutation, the revenue entries and would maintain that the entries in Record of Rights and presumption in relation thereto would stand on better footing when compared to mere revenue entries. Even otherwise in the light of the convincing reasons recorded by the trial court in this regard on appreciation of the evidence available on record, the said findings cannot be found fault in any way. While further elaborating his submissions, the learned counsel also would point out that it is unfortunate that certain differences arose, since the old man, the first plaintiff, was never looked after by the son and daughter-in-law and it is but natural that in the normal course of events these things had happened and inasmuch as there is no unnaturality at all in the events which had been well explained by the witnesses and especially in the light of the elaborate findings which had been recorded by the trial court on appreciation of the oral and documentary evidence available on record at length, such findings are to be confirmed and the appeal to be dismissed. The learned counsel also relied on certain decisions in this regard. 7. Heard the counsel, perused the oral and documentary evidence available on record and the findings recorded by the trial court as well. 8. Before formulating the points for determination and before further proceeding with the discussion on such points in the light of the evidence available on record, it may be appropriate to have a glance at the respective pleadings of the parties, the issues and additional issues settled, the oral and documentary evidence available on record and also the findings recorded by the trial court in brief. 9. Respective pleadings of the parties: Averments made in the plaint: Pentyala Ramaiah, who died, and respondents in this appeal, plaintiffs 2 and 3 as plaintiffs filed O.S.No.85 of 1987 on the file of the Senior Civil Judge, Addanki for the reliefs which had been already specified supra. It was pleaded in the plaint that Pentyala Lakshmamma, wife of the first plaintiff and mother of defendant and second plaintiff died intestate while possessing the plaint ‘A’ schedule property for which the plaintiffs 1 and 2 and the defendant jointly became entitled to in equal shares. Immediately after her death, there was division of plaint ‘A’ schedule property in which item No.1 of plaint ‘A’ schedule and western Ac.2-50 cents out of item No.2 of ‘A’ schedule fell to the share of plaintiffs 1 and 2 and the eastern Ac.4-53 ½ cents fell to the share of the defendant. The properties fell to the share of plaintiffs 1 and 2 were shown as plaint ‘A1’ schedule. Since the date of division, they are enjoying their respective shares of properties in their own right to the exclusion of others by paying land revenue. 10. Plaint ‘B’ schedule property also belongs to Pentyala Lakshmamma which was given to the second plaintiff at the time of her marriage towards ‘pasupu kumkuma’ by Pentyala Lakshmamma about ten years back and she had been in possession and enjoyment of the same and perfected her title by adverse possession. The defendant was proclaiming that he will trespass into the ‘B’ schedule property and dispossess the second plaintiff. 11. It is also averred that Pentyala Lakshmamma got both plaint ‘A’ and ‘B’ schedule properties under registered Dakhala deed, dated 01.4.1966, from her senior paternal uncle V. Lakshmaiah out of which Lakshmamma, to facilitate the defendant to his marriage, gifted Ac.10-00 cents of land. 12. Further it is averred that the first plaintiff purchased the plaint ‘C’ schedule property under a registered sale deed dated 12.4.1972 with his personal funds. Immediately after the marriage of the defendant there was a partition between the first plaintiff and the defendant in which the defendant was given the house property worth Rs.10,000/- and towards the share of first plaintiff he retained cash of Rs.10,000/-. After purchase of vacant site covered by ‘C’ schedule, the first plaintiff got constructed a terraced building about 12 years back with his own funds. His wife also died while living in the said terraced house. On account of affinity the first plaintiff permitted the defendant to reside in the eastern portion of the terraced house. 13. At the instigation of enemies of first plaintiff, the defendant had encroached the western half portion also. Then the plaintiff got issued a lawyer notice to vacate the ‘C’ schedule property for which the defendant gave reply with false allegations. The first plaintiff voluntarily executed registered Will dated 09.9.1986 in favour of second plaintiff with free will and volition. Plaint ‘A’ and ‘B’ schedule properties would fetch not less than an annual net income of Rs.1,500/- each. The defendant, after exchange of notices, trespassed into ‘A’ schedule property. Hence, the suit. 14. Averments made in the written statement: In the written statement the averments made in the plaint had been denied and it was specifically pleaded that the first plaintiff had no property worth mentioning. Lakshmaiah, the paternal uncle of Lakshmamma, conveyed nearly Ac.27-00 along with joint interest in the house under a registered settlement deed. No immovable property was gifted to the second plaintiff towards ‘pasupu kumkuma’ or otherwise, especially plaint ‘B’ schedule property, and she never in possession of the same. At the time of marriage the in-laws of the defendant promised to pay a dowry of Rs.20,000/- and paid Rs.10,000/- in cash promising to pay the remaining amount when Lakshmamma executes settlement deed regarding the rest of the property retained by her. 15. The defendant, with the assistance of Rayani Govardhanam contacted to purchase Ac.0-21 cents for Rs.4,000/- and handover the said amount to Govardhanam through his mother to obtain a registered sale deed. They obtained a sale deed in the name of the first plaintiff because he is elder in the house. Subsequently, in the said site the defendant, with the dowry amount and the amounts realized by him from his lands and also raising loan, constructed a house in ‘C’ schedule property spending nearly Rs.50,000/- within a period of two years about 11 years ago. 16. It is further averred that on 19.7.1983 the mother of the defendant executed a hand letter agreeing to convey Ac.2-00 of land in S.No.439/2 in a dispute regarding the bank deposit in the name of first plaintiff. The second plaintiff and her husband returned down to Chandalur having incurred loss in Cotton cultivation in Bellary and used to take often the first plaintiff to the house by then he lost his mental faculties and behaving like unsound mind. As the defendant spending most of the time along with his wife on cultivation, at the request of second plaintiff he allowed her to take the first plaintiff to her house. Later he heard rumours that the second plaintiff and her husband obtained thumb impression of the first plaintiff on some papers which were brought to the notice of elders who chastised the second plaintiff and her husband. On that they issued a notice for which he sent a reply. 17. Further it is also averred that plaint ‘B’ schedule property was leased out to the husband of second plaintiff for a period of two years about 5 or 6 years ago and later it was released. As per the wish of his mother he got into possession of plaint ‘A’ schedule property completely. After the death of his mother he removed the ridge in between his land and the lands of his mother in S.No.413/2 and brought the same into cultivation as a single plot. The plaint schedule property was the absolute property of the defendant. The first plaintiff had no capacity either to understand the pleadings or subscribe his signature or institution of any suit. The plaintiffs are not entitled for any relief as sought for. The alleged Will in favour of the second plaintiff was absolutely false. 18. The plaint was amended and the defendant filed additional written statement. The amendment of plaint was in relation to the Will, dated 11.9.1986, and in the additional written statement the same was denied as false and forged one. Further, the defendant filed yet another additional written statement pleading that the first plaintiff was not in a sound and disposing state of mind on the date of Will, dated 11.9.1986, and the third plaintiff cannot succeed to any portion of the plaint ‘A’ schedule property and, hence, he is not a necessary party to the suit and the suit is barred by limitation as well. 19. Issues and additional issues: In the light of the original pleadings and the subsequent pleadings referred to above, the following issues and additional issues had been settled. (1) Whether the plaintiffs are entitled for possession of plaint ‘A1’ schedule lands or for partition and separate possession of 2/3rd share in plaint ‘A’ schedule lands? (2) Whether plaintiffs are entitled for future mesne profits on plaint ‘A1’ schedule lands or 2/3rd share in plaint ‘A’ schedule lands? (3) Whether the second plaintiff is entitled for the declaration sought in respect of plaint ‘B’ schedule land? (4) Whether the second plaintiff is entitled for the consequential permanent injunction sought in respect of plaint ‘B’ schedule land? (5) Whether the first plaintiff is entitled for the declaration sought in respect of plaint ‘C’ schedule house and site? (6) Whether first plaintiff is entitled for the consequential relief of possession in respect of plaint ‘C’ schedule house and site? (7) Whether the first plaintiff is entitled for future mesne profits on plaint ‘C’ schedule house and site? (8)To what relief? 20. Additional issues dated 10.02.1995: (1) Whether the Will dated 11.9.1986 is true, valid and binding? (2) To what relief? 21. Issues 6 and 7 dated 28.10.1988 are re-casted as follows: (6) Whether the second plaintiff is entitled for separate possession of half of plaint ‘C’ schedule property being partitioned into two equal halves? (7) Whether the second plaintiff is entitled for future mesne profits in half of ‘C’ schedule property on a separate application? 22. Additional issues: (1) Whether the third plaintiff can maintain the suit without probate? (2) Whether the suit in respect of the claim of third plaintiff is within time? 23. Evidence available on record: The oral and documentary evidence available on record adduced by the parties are as hereunder. Witnesses examined for Plaintiff: Defendant P.W.1: Vadevalli Allemma D.W.1: Pentyala Koteswara Rao P.W.2: Pentyala Subba Rao D.W.2: Muggu Anjaneyulu P.W.3: Rayapate Veeraiah D.W.3: Rayani Raghavulu P.W.4: V. Hari Babu Documents marked for plaintiffs: Ex.A-1/15.2.1982: Ryot pass book of Vadevalli Allemma, w/o Haribabu. Ex.A-2/22.5.1984: Cist receipt of Vadevalli Allemma for the fasli 1393. Ex.A-3/14.2.1986: Cist receipt of Vadavalli Allemma for the fasli 1394 Ex.A-4/1.4.1966 : Registered gift deed executed by Vadevalli for the fasli 1394. Ex.A-5/1.4.1972 : Registered sale deed executed by Vasiraju Gurunadha Rao and others in favour of Pentyala Ramaiah. Ex.A-6/11.9.1986: Registered Will executed by Pentyala Ramaiah Ex.A-7 : Office copy of registered notice given by the advocate for Pentyala Ramaiah and others in favour of Pentyala Koteswara Rao. Ex.A-8/25.7.1987: Registered reply notice given by the advocate to C. Somaiah, advocate. Ex.A-9/4.12.1973: Registered Will executed by Vadevalli Rathamma Documents marked for defendant: Ex.B-1/4.6.1969: Registered gift deed executed by Pentyala Laxmamma in favour of Pentyala Koteswara Rao. Ex.B-2/22.8.1984: Cist receipt of Pentyala Koteswara Rao for the fasli 1393. Ex.B-3/9.7.1987: House tax demand notice of Pentyala Koteswara Rao. Ex.B-4/9.7.1987: House tax receipt in favour of Pentyala Koteswara Rao for the Assessment No.583 for the year ending with March, 1985. Ex.B-5/9.7.1997: House tax receipt in favour of Pentyala Koteswara Rao for the Assessment No.583 for the year ending March,1984. Ex.B-6/9.7.1997: House tax receipt in favour of Pentyala Koteswara Rao for the year ending with March, 1983. Ex.B-7/9.7.1987: House tax receipt Ex.B-8/19.7.1983: Unregistered agreement executed in between Pentyala Laxmamma and Pentyala Koteswara Rao. 24. Findings recorded by the trial court in brief: While answering issues 1 and 2 the trial court appreciated the oral and documentary evidence available on record in elaboration, recorded findings at paras 9 to 15 and came to the conclusion that the plaintiffs are not entitled for possession of plaint ‘A1’ schedule lands, but they are entitled for partition and separate possession of 2/3rd share in the plaint ‘A’ schedule lands subject to the findings of Ex.B-8 regarding the extent of property to be divided. 25. While answering issues 3 and 4 further findings had been recorded at paras 16 to 29 and came to the conclusion that since the date of marriage of the second plaintiff she has been in separate possession and enjoyment of the plaint ‘B’ schedule property for more than 12 years and perfected title by adverse possession and, hence, the ownership to be declared and the relief of permanent injunction also to be granted in relation to the said property in her favour. 26. There was re-casting of issues 6 and 7 - (6) Whether the second plaintiff is entitled for separate possession of half of plaint ‘C’ schedule property being partitioned into two equal halves? (7)Whether the second plaintiff is entitled for future mesne profits in half of ‘C’ schedule property on a separate application?, recorded findings at paras 30 to 34 and came to the conclusion that the second plaintiff is entitled to separate possession of her half share in ‘C’ schedule property and also future mesne profits. 27. While answering additional issue No.1 – whether the Will dated 11.9.1986 is true, valid and binding? findings had been recorded at paras 35 to 37. Certain decisions had been referred to and the evidence of P.Ws.2 and 3 had been appreciated in elaboration and ultimately the trial court came to the conclusion that the said Will had been duly proved. 28. While answering additional issues 1 and 2 framed on 11.11.1998 findings had been recorded at paras 40 to 55 and came to the conclusion that the said issues are to be answered in favour of the third plaintiff. 29. Further findings had