THE HON'BLE SRI JUSTICE B.PRAKASH RAO And THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO A.S.NO.3695 OF 2003 JUDGMENT: {Per the Hon’ble Sri Justice N.R.L. Nageswara Rao} 1. The appellants, who are defendants 7 to 9, filed this appeal aggrieved by the judgment of the III Additional District Judge, Kakinada, in O.S.No.45 of 1998. 2. For convenience sake, the parties are arrayed as they are arrayed in the suit. 3. The plaintiff filed the suit for declaration of title and for mesne profits. The averments of the plaint, in brief, are that the plaintiff is the youngest daughter, sixth defendant is the oldest daughter, seventh defendant is the second daughter, first defendant is the elder son and one Nagaraju-husband of the second defendant is the younger son of late Smt. Appala Subba Raju. Defendants 8 and 9 are son-in-law and daughter respectively of seventh the defendant. The plaint schedule property and some other property fell to the share of late Appala Subba Raju and her son, Nagaraju, in the family partition between them and the first defendant under a registered partition deed dated 19.06.1959 and later to the share of Smt. Appala Subba Raju in the oral partition between herself and her son Nagaraju. The said Appala Subba Raju is the absolute owner of the plaint schedule property. On 04.05.1992, Appala Subba Raju executed a registered Will in a sound and disposing state of mind bequeathing all her movable and immovable properties to her legal representatives. The said Will, which is said to be the last Will of Appala Subba Raju, was registered as document No.189/92 in Sub-Registrar’s Office, Kakinada. Subsequently, she executed a registered codicil on 29.07.1994 and a gift deed and died on 26.03.1996 due to old age. On 04.09.1997, the plaint schedule property was mutated in the name of the plaintiff. After the death of Smt. Appala Subba Raju, the plaintiff claims to have come into the picture. Defendants 6 and 7 are the persons, who are stated to be in enjoyment of some of the said properties. Therefore, the suit was filed for declaration of title with consequential relief of damages. 4. The fifth defendant filed written statement, which was adopted by defendants 1 to 4, wherein the fifth defendant denied the averments made in the plaint except the relationship between the parties inter se. It was further pleaded that Late Appala Subba Raju did not execute the Will on 04.05.1992 or the Codicil on 29.07.1994. It was further pleaded that after the death of Appala Subba Raju, there was an agreement for partition of the properties before the elders and a memorandum was executed to that effect on 07.07.1996. The plaintiff is not entitled for the declaration. 5. The appellants herein adopted the written statement filed by the sixth defendant. It was alleged that the alleged partition of the properties and the ownership of Appala Subba Raju is not correct. The Will and the Codicil executed by Appala Subba Raju is disputed as the seventh defendant is the daughter of Late Appala Subba Raju, he gave half share, which is the marked portion with absolute right. The plaintiff is not entitled to any relief claimed in the suit. 6. Basing on the pleadings and the written statement, the learned III Additional District Judge, Kakinada, framed the following issues. (1) Whether the plaintiff is entitled for a declaration and consequential possession of the plaint schedule property? (2) Whether the Will dated 04.05.1982 and Codicil dated 29.07.1994 is true, valid and binding? (3) Whether the plaintiff is entitled for a decree against the 7th defendant towards damages for use and occupation @ Rs.500/- p.m. from the date of suit till date of her vacation? (4) Whether the 12th defendant is entitled to continue in possession of item-I of the plaint schedule property subject to the result of R.C.A.No.30 of 1997 on the file of Principal Senior Civil Judge, Kakinada? (5) To what relief? 7. During the course of trial, P.Ws.1 to 6 were examined and Exs.A1 to A30 were marked on behalf of the plaintiff. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 and B2 were marked. 8. At the trial, the parties did not seriously dispute the validity of the Will and its binding nature on them and the fact that Smt. Appala Subba Raju is the owner of the property. On considering the evidence and material on record, the Court below decreed the suit with costs declaring that the plaintiff is the absolute owner of the plaint schedule property, thereby entitling the plaintiff for possession of the said property. Defendants 7 to 12 were directed to vacate from their respective portions of plaint schedule property and deliver vacant possession of the same to the plaintiff within three months from the date of this judgment. Further, it is directed that the plaintiff shall be entitled for future damages against the seventh defendant in respect of ‘F’ marked plaint plan property, to be determined on a separate application to be filed. The appellants herein, being not satisfied with the finding of the Court below, preferred this appeal. 9. The points that arise for consideration are (1) Whether the plaintiff is entitled for declaration and possession of the properties? (2) Whether the Will dated 04.05.1992 and the Codicil dated 29.07.1994 are true, valid and binding? (3) Whether the partition agreement/family arrangement dated 07.07.1996 after the death of Appala Subba Raju with the plaintiff is true and valid? (4) Whether the judgment and decree of the Court below suffers from any infirmity? (5) To what relief? 10. Evidently, the first defendant and the seventh defendant, who are the competent witnesses to dispute the documents, did not go into the box. In fact, as can be seen from the judgment of the Court below from para-26, the seventh defendant has accepted the Codicil and received the FDR amount of more than Rs.1,00,000/- {Rupees one lakh only} and the first defendant also withdrew the same. The Court below, after considering the evidence on record, on execution of the Will and the Codicil, accepted the same, which are Exs.A3 and A4, basing on the evidence of the scribe and the attestors. In fact, the learned counsel for the appellant did could not seriously and evidently dispute about the same because the seventh defendant did not go into the box. The other defendants did not dispute about the judgment. 11. Finding that the suit of the plaintiff cannot be defeated on the Will or the Codicil and that the seventh defendant and the contesting defendants did not take any specific plea about the family arrangement under Exs.B1 and B2, an attempt was made before this Court to rely upon them and contend that in view of the said documents, the suit of the plaintiff cannot be decreed. 12. Touching on the validity of Ex.B1-agreement, the judgment of the Court below refers to paras-34 and 35. It was found by the learned District Judge that though Exs.B1 and B2 are said to have been executed, the circumstances under which they have been executed are not proved. Further more, there is also no plea in the written statement of the sixth defendant that there was a family agreement between the legal heirs of Smt. Appala Subba Raju. He also doubted the execution of Ex.B1. Further more, taking into consideration the contention that all the legal heirs are said to have been agreed to partition of the property but still since there is already a partition of the joint family properties between the members and the plaintiff has become the absolute owner as a legacy under the Will, the question of joining of other family members does not arise and it being a registered document and consequently, the Court below found that Ex.B1 suffers from the validation because of the bar under Section 17 (1) (b) of the Registration Act, 1908. Therefore, for the above reasons, the judgment of the Court below does not call for any interference. 13. The appeal is, accordingly, dismissed. No costs. _________________ (B.PRAKASH RAO, J) _______________________ (N.R.L. NAGESWARA RAO, J) 13th December 2010 RRB