THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.597 of 2007 (Dated : 03-08-2010) Between: Smt. Namuduru Satyavathi W/o late N.V.Krishna Murthy Vorugantivari Street, Vizianagaram …Petitioner A n d Joint Collector, Vizianagaram, Vizianagaram District And others ..Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.597 of 2007 ORDER: This writ petition has been filed by Smt. Namuduru Satyavathi assailing the order passed by the Joint Collector, Vizianagaram in D.Dis.No.1775/2004 D-5 dated 31.8.2006. 2. One Namuduru Venkata Rao established a spiritual Peetham by name Sri Sai Umamaheswara Peetham (hereinafter referred to as “peetham”). He was one among the four children of Namuduru Krishna Sastry. Namuduru Venkata Seetharama Murthy and Namuduru Venkatarao divided their ancestral properties in the year 1985. Thereafter, Namuduru Venktarao acquired some more landed property on his own. Namuduru Venkatarao died on 12.10.1999. He was having 21 acres of land at Akkivaram village, Denkada Mandal, Vizianagaram District. He had no children and his wife predeceased him. There are no Class I legal heirs and Venkatarao left behind only Class II legal heirs, namely, Namuduru Venkata Seetharama Murthy, Akella Satyavathamma and Neralla Narusumaba. He dedicated all his properties to the peetham founded by him. He managed the said peetham as its founder-Dharmakartha during his life time. It is the contention of the writ petitioner that after the death of the founder of the peetham, she came into possession of the peetham and its lands as Dharmakartha and she has been managing the said peetham at Vorugantivari Street, Vizianagaram and its’ lands at Akkivaram village with the assistance of her son, as per the directions of the founder of the peetham. 3. Namuduru Venkata Seetharama Murthy has six sons and four daughters. The husband of the writ petitioner is the eldest son and respondents 3 to 7 are five living sons of Venkata Seetharama Murthy. According to the petitioner, after the death of her husband, her father-in-law Venkata Seetharama Murthy neglected to maintain her and therefore, Venkatarao-founder of the peetham took care of her and her children and got her son educated up to M.Sc. After the death of the founder of the peetham, she applied for mutation of her name in the revenue records. The revenue authorities conducted enquiry and mutated the property in her name. 4. Aggrieved by the order of the recording authority, Namuduru Venkata Seetharama Murthy filed revision before the Joint Collector, Vizianagaram. The said revision ended in dismissal on 29.11.2002 directing the petitioner therein to file declaration suit under the R.O.R.Act. 5. Assailing the order passed by the revisional authority, N.Venkata Seetharama Murthy filed Writ Petition No.4754 of 2003. The said writ petition came to be allowed on 14.7.2003. The relevant portion of the order passed in the said writ petition reads as hereunder: “ A copy of the Will dated 18.8.1999 is produced before me. As rightly contended by the learned counsel for the petitioner, it is not attested. Learned counsel for respondents 4 and 5, however, contends that the Will executed by late Venkatarao being a holographic Will, does not require attestation under law. I am afraid, I cannot agree with the submission. I may, however, hasten to add that the petitioner herein filed a suit being O.S.No.126 of 2003 on the file of the Court of the Principal Junior Civil Judge, Vizianagaram for perpetual injunction. In the written statement filed by respondents 4 and 5, a plea was raised that pursuant to the Will which was acted upon, the fourth respondent is in possession of the property and, therefore, no injunction can be granted in favour of the petitioner. Along with the suit, an interlocutory application being I.A.No.398 of 2003 was also filed and the same is pending. In view of the same, this Court is not inclined to express any opinion as to the validity of the Will allegedly executed by late Venkat Rao. However, as the second respondent decided the question whether the fourth respondent should be issued pattadar passbook or not based on the Will dated 18-8-1999, the order of the second respondent is set aside and the matter is remitted back to him for conducting a fresh enquiry. However, as the second respondent is the revisional authority under Section 9 of the A.P.Rights in Land and Pattadar Passbooks Act, 1971 it would be better if a preliminary enquiry is conducted by the M.R.O., Denkada. An independent enquiry may be conducted having regard to the fact that the petitioner has already filed a suit. Insofar as the possession is concerned, both the counsel submit that their clients are in possession. However, it is not denied before me that I.A.No.398 of 2003 is still pending and no orders are passed. Therefore, no orders can be passed with regard to possession to the property admeasuring Acs.25-00 in Sy.Nos.273/1 to 273/25, 279/7 and 292/1 to 292/8 of Akkivaram village, Denkada Mandal, Vizianagaram District”. 6. Pending enquiry with the revisional authority, N.Venkata Seetharama Murthy died and his sons, who have been arrayed as respondents 3 to 7 herein came on record as his legal representatives and pursued the matter with the revisional authority. 7. The revisional authority after considering the enquiry report of the Mandal Revenue Officer, Denkada and other material brought on record, passed orders afresh on 31.8.2006. The relevant portion of the order passed by the revisional authority reads as hereunder:- “ After the death of Sri late Namuduru Venkata Rao as there were no Class-I heir for venakt Rao, and his brother Sri N.Venkata Seetharama Murthy who is the sole Class-II heir has succeded the immovable properties of Sri late Venkata Rao and has been in possessin and enjoyment of the schedule properties. The land tax receipts paid to the revenue authorities clearly show that the petitioners were in possession and enjoyment of the schedule properties. An enquiry has been conducted by the Mandal Revenue Officer, Denkada, as per the orders of their Lordship in Writ Petition No.4754 of 2003 and submitted a detailed report with true facts in to light and has elicited that the said late N.Venkata Rao has not entrusted the properties to the “Peetham” of Sri Uma Maheswara Sidhanthi and that the said Venkata Rao has not executed any will when he was alive and the same was also corroborated by the Village elders. This clearly show that the petitioners are in actual possession and enjoyment of the properties of late Venkata Rao and it also establish that the petitioners are only the actual legal heirs for the properties of late Venkata Rao, including the 1st respondent. The 1st respondent and her son could not be ordered to be the titleholders of the schedule property basing on the will. The alleged Peetham is not a registered one or in the form of a Trustee recognized in Law. There is no legal sanctity for the documents submitted by the 1st respondent. Hence this court considers that the document Dt.20.05.2001 is not a valid document and the signatories has not appended their signatures and never implemented the contents. The document Dt.31.3.2003 the so-called Trusteee Deed was created without the knowledge of the concerned shown the trustee deed. The same was not registered and has no legal sanctity. There were not meetings of the members before or after bringing the same into existence. So this Court considers it to be not a valid document. This Court after considering the enquiry report of the Mandal Revenue Officer, Denkada the evidence and the documents submitted, I hold that late Namuduru Venkata Seetharama Murthy the 1st petitioner is the Class-II heir of late N.Venkata Rao, and acquires the properties of late N.Venkata Rao and the Petitioners 2 to 6 including the 1st respondent as they are the heirs of late Namuduru Venkata Seetharama Murthy acquires the right, title over the schedule properties. I herewith hold that the 1st respondent and her son could not acquire any title or ownership over the schedule properties basing on the fabricated Will Dt.18.8.1999. Hence I pass these orders accordingly”. 8. Rule nisi came to be issued on 5.1.2007. Sri N.Promod entered appearance on behalf of respondents 3 to 7. Learned Government Pleader for Revenue received notice on behalf of respondents 1 and 2. 9. Heard learned counsel appearing for the parties. 10. Learned counsel appearing for the petitioner submits that the respondents 1 and 2 completely ignored the existence of other Class II legal heirs of the founder of the peetham and if at all the property owned by the founder of the peetham was to be inherited by way of succession, it should be divided among all the legal heirs of the founder of the peetham. He would also submit that where there are 17 legal heirs to the founder of the peetham, declaration in favour of only seven legal heirs of the founder of the peetham cannot be sustained. Since two Wills are propounded by the parties, the last Will prevails over the earlier one. One Will is dated 20.3.2002 and another Will is dated 9.4.2003, in which case the revisional authority ought to have considered the last Will dated 9.4.2003, wherein the entire property has been dedicated to the peetham only. The petitioner is just Manager/ Dharmakartha/ Administrator/Trustee of the properties of the said peetham and absolute rights in respect of the properties vested in peetham only. The founder of the peetham handed over the properties to the writ petitioner’s son for management. The revisional authority has not considered the statements given by Immidisetty Narasinga Rao and Naru Ramunaidu jointly before the Mandal Revenue Officer, Denkada during preliminary enquiry on 6.12.2003, and thereby, erred in observing that the respondents 3 to 7 and the petitioners are entitled to have equal shares in the properties owned by the peetham. 11. Learned counsel appearing for the respondents 3 to 7 submits that the revisional authority considered the material brought on record in a right perspective and also the preliminary enquiry report submitted by the Mandal Revenue Officer, Denkada and recorded a finding that there is no legal sanctity for the document submitted by Satyavathi and thereby, refused to place reliance on the document dated 20.5.2001 pressed into service by Satyavathi, the petitioner herein. He would also contend that the order impugned does not warrant interference, and therefore, the writ petition is liable to be dismissed. 12. The facts, which are not in dispute, are:- Namuduru Krishna Murthy had two sons and two daughters namely N.Venkata Seetharama Murthy and N.Venkatarao, Akella Satyavathamma and Neralla Narusumaba. N.Venkatarao established Sri Sai Umamaheswara Peetham. He dedicated all his properties to the peetham. Of course, it is the contention of the petitoner-Satyavathi that two acres in Sy. No.579/7 has been given to her. It is also her version that her husband predeceased Venkatarao and therefore, Venkatarao brought up her children and educated them. It is also not in dispute that Venkata Seetharama Murty has six sons and four daughters. The husband of Satyavathi who is the petitioner herein is one of the sons. 13. The core issue involved in this writ petition is: Whether Venkatarao dedicated his properties to the petham? 14. The Mandal Revenue Officer, Denkada conducted enquiry and submitted report and the said report came to be considered by the Joint Collector in disposing of the revision filed by the Venkata Seetharama Murthy and his legal representatives. It is beyond competency of the Mandal Revenue Officer to decide validity of the trust created by Venkatarao. It has come on record that a suit being O.S.No.126 of 2003 has been pending between the parties in respect of the properties owned by Venkatarao. Such is the situation; I deem it appropriate to direct both the parties to establish their right over the property in Civil Court and thereafter, approach the revenue authorities for mutation of their names in the revenue records. 15. Accordingly, the Writ Petition is allowed setting aside the order dated 31.8.2006 passed in D.Dis.No.1775/2004,D-5, directing the parties to establish their rights in Civil Court with regard to their entitlement to claim the properties of Venkatarao. The revenue entries shall remain as it is as existed on the date of death of Venkata Rao. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.03.08.2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.597 of 2007 (Dated : 03-08-2010)