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GOPAL REDDY AND HON'BLE SRI JUSTICE B.SESHASAYANA REDDY L.P.A. No.118 OF 2000 DATED: 11 -09-2009 BETWEEN: Sanka Nageswara Rao …Appellant AND Ravuri Subrahmanyam & Others …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.SESHASAYANA REDDY L.P.A. No.118 OF 2000 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This intra-court appeal under Clause 15 of Letters Patent is preferred by the plaintiff against the judgment in A.S.No.2003 of 1985 dated 26.7.1999 whereby the appeal filed by 2nd defendant was allowed partly declaring that the registered settlement deed- Ex.B.1 executed by 1st defendant for herself and on behalf of the then minor plaintiff and 4th defendant in favour of 2nd defendant as true, valid and binding on the executors. 2. The parties hereinafter are referred to according to their position in the suit. 3. The facts that gave rise to this appeal, in nutshell are as under: (a) The plaintiff instituted the above suit for partition and separate possession of 4/6th share in plaint ‘A’ schedule properties and for setting aside the three settlement deeds, all dated 4.10.1962 and for rendition of accounts together with past and future profits. The averments in the plaint are that the plaintiff is the only son and 4th defendant is the daughter of late Sanka Venkateshwarlu and his wife-Rangayanakamma, who is 1st defendant in the suit. Plaintiff and late Venkateswarlu were members of a joint undivided Hindu Family. Late Venkateswarlu died intestate leaving behind him, the suit schedule properties. 2nd defendant is related to the plaintiff’s father through his father, while 3rd defendant is related to the plaintiff’s father through his wife (1st defendant herein). When the plaintiff was infant by the death of his father, 1st defendant was left with no male advice, and that 3rd defendant’s father Veerabhadra Rao and the 5th defendant acted as advisors to her. But, however, defendants 2 to 5 conspired with 1st defendant and came into possession of all the moveables, motor vehicles and the plaint schedule properties and brought into existence a number of gift deeds nominally showing the gift of Ac.2.98 cents in items 1 & 2 of plaint ‘A’ schedule properties to 2nd defendant; Ac.0.99 cents in items 3,5,6, 7 & 8 to 3rd defendant; Ac.1.80 cents in items 3,4,6 & 7 to 4th defendant from out of the plaint schedule properties for herself and as guardian of minor plaintiff. According to the plaintiff, the said gifts are not true and binding on him. It is the specific case of plaintiff that upon the death of his father, 5th defendant took over the management of the properties promising to augment the income and give back the management to the plaintiff on his attaining majority. But, having colluded with 3rd defendant, he disposed of motor vehicles and moveables and took the custody of the entire cash and plaint ‘A’ schedule properties. The defendants 1 & 4 who are ladies having no experience of worldly affairs and independent male assistance and advice were under the influence and active confidence of 5th defendant. After attaining the age of majority, plaintiff demanded 5th defendant to handover the possession of plaint ‘A’ schedule properties and to render account of all the incomes, but the 5th defendant has been postponing the same promising to do so at the time of every crop. The plaintiff got issued a notice to defendants on 29.5.1980 on coming to know that defendants 2 to 5 are hatching a plan to bring out some fictitious documents in favour of 6th defendant, to which, only the 2nd defendant sent a reply with false averments. Plaintiff claims that he is having half share in the entire plaint ‘A’ schedule properties, besides 1/3rd share in his father’s share, while the defendants 1 and 4 are entitled to other 2/3rd share. 5th defendant sent a reply with false averments stating that 7th defendant also managed the joint family properties and that therefore, he is liable to render the accounts in respect of one bus. Hence, the suit. (b) Defendants 1 & 4 by filing a written statement supported the case of the plaintiff admitting the relationship and the plaint ‘A’ schedule properties being the joint family properties of plaintiff and his father-late Venkateshwarlu. (c) Contesting the suit, 2nd defendant filed a written statement contending that items 1 and 2 of plaint ‘A’ schedule properties to an extent of Ac.2.98 cents covered by R.S.Nos.129/1 and 192/2 have been settled on him by defendants 1 and 4 pursuant to a will executed by the father of the plaintiff on 26.6.1962 in a sound and disposing state of mind, and that the said property is neither the joint family property nor ancestral property of the plaintiff, and that the plaintiff has no share as of any right by birth in the said property. Under the will of late Venkateshwarlu, a life interest has been created in the property in favour of grandmother of 2nd defendant and the vested remainder was given in favour of 2nd defendant. Later, upon the death of his grandmother, he alone is entitled to Ac.2.98 cents of land. Plaintiff cannot question the will or bequeaths made thereunder in favour of 2nd defendant. Therefore, it is not rue to say that late Venkateshwarlu died intestate. Pursuant to the said will, plaintiff, his mother and sister had executed a registered settlement deed dated 4.10.1962 validly with full knowledge of its contents, and that the plaintiff having been represented by his mother as his guardian it is not open for him to say that the settlement deed dated 4.10.1962 is not binding on him. It is admitted that the plaintiff has become major on 11.11.1975 and contended that the suit is barred by limitation. It is specifically pleaded that his mother and himself were given possession of items 1 and 2 of plaint ‘A’ schedule properties long back and 2nd defendant also leased out the property to 5th defendant, however, 6th defendant is in unlawful possession having entered into the property in collusion with 5th defendant. There is no privity of contract between defendants 2 and 6 in respect of these properties. 6th defendant is not a tenant of Ac.2.98 cents belonging to 2nd defendant, and that the plaintiff is not entitled to recover possession of Ac.2.98 cents of land and therefore, prayed for dismissal of the suit. (d) 3rd defendant filed a separate written statement contending that Ac.0.34 cents of land covered in R.S.No.96/2, Ac.0.30 cents in R.S.No.95, Ac.0.30 cents in R.S.No.100/2 and Ac.0.05 cents in R.S.No.100/1, in all Ac.0.99 cents has been in possession and enjoyment of this defendant with absolute rights in pursuance of the will executed by late Venkateshwarlu dated 26.6.1962. The property is not an ancestral property of the plaintiff and he cannot acquire any right by birth. Pursuant to the said will, a settlement deed was also executed for this extent of land knowing fully well the contents of the will. Therefore, the plaintiff is not entitled to question the bequeath made in favour of this defendant. There is no collusion in between this defendant’s father and 5th defendant. The 1st defendant on behalf of this defendant has leased out the same to 5th defendant and is collecting rents from 5th defendant and making over to this defendant. The will executed by late Venkateshwarlu is true, valid and binding on the plaintiff. (e) 5th defendant filed a separate written statement contending that plaint ‘A’ schedule properties are self-acquired properties of late Venkateshwarlu, who executed a will and settlement deed prior to his death. However, he denied about his liability to render any account and the allegation that defendants 1 to 4 are under his undue influence. He stated that he is a document writer, besides, being a bus proprietor and that he has been writing documents to the dictation of 1st defendant. It is his case, during the lifetime of Venkateshwarlu, this defendant used to scribe the documents of Venkateshwarlu and he is an attestor of the will executed by late Venkateshwarlu on 26.6.1962 which was executed in a sound and disposing state of mind. It is his contention that he is only a tenant of Ac.8.26 cents of land leased out to him by 1st defendant on payment of rental of 82 bags of paddy payable by 15th of January every year and prayed for dismissal of the suit against him. 4. On the above pleadings, the trial Court framed as many as 10 issues out of which, issue Nos.1 and 6 are relevant for the purpose of disposal of this appeal and they are as under: “1. Whether the plaint A-schedule properties are the joint family properties of Sanka Venkateswarlu and the Plaintiff and defendants 1 and 4? 6. Whether the will dated 26.6.1982 and the settlement deeds dated 4.10.1962 relied on by defendants 2 and 3 are true, valid and binding on the plaintiff, 1st defendant and 4th defendant?” 5. Before the trial Court, plaintiff himself examined as P.W.1 and marked Exs.A.1 to A.19 documents. Whereas, defendants 2, 3, 4 and 6 were examined themselves as D.Ws.2,1,8 and 6 respectively, besides examining four more witnesses on their behalf and marked Exs.B.1 to B.28. 6. The trial Court after evaluating the oral and documentary evidence, decreed the suit of the plaintiff for partition of plaint ‘A’ schedule properties into 6 equal shares and to put the plaintiff in possession of four such shares after evicting defendants 2,3,5 and 6 therefrom, and the 4th defendant was directed to be put in possession of rest of the two shares. The suit was also decreed setting aside the settlement deeds, dated 4.10.1962 executed in favour of 2nd and 4th defendants apart from granting other consequential reliefs. Being aggrieved, 2nd defendant filed the impugned appeal. 7. Learned single Judge of this Court framed one question for consideration viz., Whether the settlement deed-Ex.B.1 dated 4.10.1962 executed by 1st defendant for herself and on behalf of minor plaintiff and 4th defendant, in favour of 2nd defendant is true, valid and binding on the plaintiff and defendants 1 and 4? Examining the said question, learned single Judge also examined about the execution of Ex.B.21 as to whether the title was conveyed under Ex.B.21 by its donee. For the said purpose, the learned single Judge proceeded to examine whether the property of Sanka Venkateswarlu is self-acquired property or joint family property. It was observed that under Ex.B.21 will, the testator described the properties as his self-acquired properties and the original of the which is in the custody of 1st defendant, has not been filed into the Court.