*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY Second Appeal No.1162 of 2011 % 24.11.2011 Between: # Yadla Venkata Subbamma and others. …Appellants And $ Yadla Punnamma and others. …Respondents ! COUNSEL FOR APPELLANTS: Sri Addepali Suryanarayana ^ COUNSEL FOR RESPONDENTS: Sri S.Lakshminarayana Reddy < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1162 of 2011 JUDGMENT: The respondents filed O.S.No.61 of 2003 in the Court of Principal Junior Civil Judge, Ongole against the appellants for the relief of partition and separate possession of the suit schedule property viz., an extent of Ac.0.66 cents of land in Survey No.212/1 of Pernamitta Village. It was pleaded that the property was held by one Sri Yadla Venkata Subba Reddy and he got the same along with other items of properties in partition between himself and his two brothers by name Rangaiah and Venkata Ratnam. The 1st respondent is the wife and respondents 2 and 3 are the daughters of Venkata Ratnam, whereas the first appellant is the daughter-in-law and the second appellant is the grand daughter of Rangaiah. Appellants 3 to 6 are said to be the purchasers of parts of the suit schedule property from appellants 1 and 2. It was pleaded that Venkata Subba Reddy died issueless, possessed of the suit schedule property. According to the respondents, the property was being enjoyed in joint by themselves and appellants 1 and 2 and that since they came to know that the property was being sold by appellants 1 and 2, the suit was filed for partition. On behalf of appellants 1 and 2, a written statement was filed. They admitted the relationship of the parties as pleaded in the plaint. It was however stated that Venkata Subba Reddy executed a Will, dated 11.07.1988 (Ex.B.14) bequeathing various items of properties in favour of themselves, representing the branch of Rangaiah, on the one hand and the respondents, representing the branch of Venkata Ratnam, on the other hand. The suit schedule property is said to have been bequeathed to them exclusively. They have also stated that ever since then, they are exercising the rights of ownership vis-à-vis the property and that their names were also entered in the revenue records. Instances of sale of parts of the property were also pleaded. The 5th respondent also filed a written statement on the same lines. The trial Court dismissed the suit, through its judgment, dated 30.06.2006. Aggrieved by the same, the respondents filed A.S.No.123 of 2006 in the Court of I Additional District Judge, Ongole. The appeal was allowed through judgment, dated 12.04.2010. Hence, this second appeal. Sri Addepalli Suryanarayana, learned counsel for the appellants submits that the lower appellate Court recorded several findings contrary to evidence. He submits that though a specific plea was raised in the written statement filed by appellants 1 and 2 that late Venkata Subba Reddy executed a will, no rejoinder was filed by the respondents disputing the execution of the will, much less any suspicious circumstances were pleaded. He contends that the very fact that the suit was filed only in respect of one of the items of the property, that too about 50 years after the death of Venkata Subba Reddy discloses that it was a speculative litigation. Learned counsel further submits that in clear and categorical terms, P.W.1 stated that she did not instruct anyone to file the suit and that she is not aware of even the partition among their brothers, much less about the suit schedule property; and still the lower appellate Court decreed the suit ignoring such vital statements. He further submits that the suit was defective, inasmuch as all the properties that were left by late Venkata Subba Reddy were not included in the schedule. Sri S.Lakshminarayana Reddy, learned counsel for the respondents on the other hand submits that the suit was dismissed by the trial Court on wrong assumption of fact and law and that the lower appellate Court has corrected the same. He contends that his clients did not file any rejoinder, since the Will was not filed along with the written statement nor at the commencement of the trial. Learned counsel further submits that the enjoyment of the suit schedule property was jointly by both the parties and that in case, the appellants are of the view that any item of property left by Venkata Subba Reddy was not included, it was always open to them to include the same at any stage of the proceedings. He contends that no substantial question of law arises for consideration. The suit filed by the respondents was the one for partition of an item of immovable property. The relationship was not disputed by the appellants. Their case was that the original owner of the property i.e., Venkata Subba Reddy executed a Will, dated 11.07.1988 (Ex.B.14). The trial Court framed only one issued viz., whether the plaintiffs are entitled for partition and separate possession of the suit schedule prporty as prayed for. Respondents 1 and 2 deposed as P.Ws.1 and 2. On their behalf, Exs.A.1 and A.2, being the death certificate of Venkata Subba Reddy and the receipt issued by the Panchayat Secretary, were filed. On behalf of the appellants, D.Ws. 1 to 6 were examined and Exs.B.1 to B.14 were filed. On dismissal of the suit, the respondents filed A.S.No.123 of 2006, in which the following points were framed: 1. Whether the plaintiffs are entitled for partition? 2. whether the defendants proved that late Venkata Subba Reddy executed Ex.B.14 WILL? Both the points were answered in favour of the respondents. It is not uncommon that suits for partition are filed by some of the coparceners or co-owners, not being aware of prior partition or a different kind of disposition, on earlier occasions. Though non-reference of the same in the plaint may not have any impact on the case; at least when a specific plea on those lines is raised in a written statement, the plaintiff is under obligation to file a rejoinder, if he intends to dispute such plea. In the absence of rejoinder, the plea raised by the defendant virtually stands unrebutted. In this case, the respondents filed the suit under the assumption that Venkata Subba Reddy did not order any arrangement vis-à-vis the property and that it is available for partition. The appellants clearly mentioned in their written statement that Venkata Subba Reddy executed Ex.B.14 on 11.07.1988. The details thereof are also mentioned to the effect that under Ex.B.14, some properties were bequeathed to the respondents also and that the suit schedule property was exclusively bequeathed to the appellants. The respondents did not file any rejoinder. The justification pleaded by the respondents was that the copy of the Will was not enclosed with the written statement and it was filed when the evidence of the appellants was in progress. The proper stage to file rejoinder is, soon after the written statement is filed. In case, the plaintiff needs any further information or elaboration, or he needs a copy of any document, notices under the relevant provisions of C.P.C., such as Order XII, have to be issued. Further, if for any reasons, rejoinder was not filed, immediately after the written statement was received, an effort could have been made to file it at a later point of time with the leave of the Court. When no such effort was made, the plea, as to the non-enclosure of the copy along with the written statement cannot be accepted. Therefore, the substantial question of law viz., “whether the suit becomes untenable, when a plaintiff fails to file a rejoinder or to rebut a specific plea raised by the defendant in his written statement, which cuts at the root of the case, as presented in the plaint”, is answered in favour of the appellants. It has already been mentioned that the special plea raised by the appellants herein that Venkata Subba Reddy executed a Will was not rebutted by the respondents by filing a rejoinder and in that view of the matter, the very cause of action to seek the relief of partition became shaky. Secondly, respondents 1 and 2 deposed as witnesses to prove the contents of the plaint. The 2nd respondent is the daughter of the 1st respondent. The rights if any have to flow from the 1st respondent. Her evidence is of utmost importance to prove the case. In her cross-examination, she stated that she has not instructed anyone to file a suit, she does not know anything about the suit schedule properties and that she did not put her signature on the plaint. With this, the entire foundation for the suit became shaky. No effort was made by the respondents either to withdraw the statement or to disown it. As long as the statement remained in the record, the very suit became untenable. Therefore, another substantial question of law is, “whether any relief can be granted in a suit at all, in case the plaintiff therein deposes that he did not instruct anyone to file the suit, she does not know anything in the suit claim and that she did not sign the plaint at all”. Here again, the answer is in the negative and the result thereof goes in favour of the appellants. These questions are sufficient to set aside the decree passed by the lower appellate Court. Added to that, it has undertaken certain discussion on the so- called suspicious circumstances surrounding Ex.B.14. The suspicious circumstances enumerated by the lower appellate Court are as under: 1. The defendants did not file Ex.B.14-will along with their written statements or before the commencement of the trial; 2. The date of death of Venkata Subba Reddy. 3. Non-mentioning of Ex.B.14 WILL in Ex.B.2. The first circumstance does not at all fit into those recognized in law. Even where a Will is proved as required in law, a Court would be entitled to examine whether there existed any suspicious circumstances. Naturally, these are the circumstances, which are to be taken into account, when the will was executed. By no stretch of imagination, those which are referable to a period subsequent thereto can be brought under the fold. Further, the circumstances can be examined with reference to the mindset of the executant of the Will but not with reference to the acts and omissions of the parties, including the legatees under the Will. None of the three circumstances mentioned above can be treated as suspicious ones. Therefore, the second appeal is allowed and the decree passed by the lower appellate Court is set aside. There shall be no order as to costs. __________ 24.11.2011 Note: L.R.Copy to be marked. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1162 of 2011 Date: 24.11.2011 JSU