IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWELVETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.140 OF 1994 Between: Voona Venkatapparao (Died) and others ..... APPELLANTS AND Thangudu Seetharatnam ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.140 OF 1994 JUDGMENT: Introductory Case: The unsuccessful defendant Nos.2 to 5 and 13 in O.S.No.87 of 1987 on the file of Principal Sub-ordinate Judge, Srikakulam had preferred this appeal. Respondent No.1 in the appeal is the plaintiff in the said suit. Defendant Nos.6 to 12, shown as respondent Nos.2 to 7, were specified as not necessary parties to the appeal. 2. For the purpose of convenience, the parties hereinafter will be referred to as plaintiff and defendants as shown in O.S.No.87 of 1987 on the file of Principal Subordinate Judge, Srikakulam. 3. The plaintiff filed the suit for partition of plaint A, B, C and D schedule properties into four equal shares and for allotment of one such share to the plaintiff and also further prayed for the subsequent profits and costs of the suit. 4. The learned Principal Subordinate Judge, Srikakulam, in the light of the respective pleadings of the parties having settled the issues, examined PWs.1 to 3 and DWs.1 to 5 and further marked Exs.B-1 to B- 13 and ultimately came to the conclusion that the plaintiff is entitled for the relief of partition as prayed for and accordingly, the suit was decreed with costs in favour of the plaintiff and the mesne profits to be decided by a separate application. As already aforesaid, aggrieved by the same, the present appeal had been preferred. Submissions of Sri D. Ramalingaswamy: 5. Sri D. Ramalingaswamy, learned counsel representing appellants, had taken this Court through the respective pleadings of the parties, the evidence available on record and also the findings recorded by the trial Court and would maintain that the said findings cannot be sustained, especially in the light of the clear evidence of DWs.3 and 5 in relation to Ex.B-10. The learned counsel also further pointed out to Exs.B-7 and B- 11 as well and further had taken this Court through the evidence of DWs.1 to 5 as well, apart from Exs.B-7, B-10 & B-11. The learned counsel also pointed out to Exs.B-1 to B-4, B-6, B-8, B-9, B-12 and B-13 as well. While further elaborating the submissions, the learned counsel pointed out that this is a suit for partition and as far as ‘C’ schedule and ‘D’ schedule properties are concerned no acceptable evidence has been placed before the learned Principal Subordinate Judge, Srikakulam. But, however, findings had been recorded on sympathetic grounds, though no convincing evidence as such in this regard had been placed before the Court. The learned counsel also would point out that the trial Court recorded erroneous findings while answering issue No.5 relating to the validity of the will. The learned counsel also would further point out that the will in question is a registered will and there is abundant evidence to prove that Bansali executed the will voluntarily, consciously out of his free will and hence, the trial Court ought to have held that it is valid and binding on the plaintiff as well. The learned counsel also laid emphasis on Exs.B-7 and B-11 and would maintain that these are also registered documents and to ignore them recorded findings in a vague fashion, also cannot be sustained. While further elaborating his submissions, the learned counsel also pointed out that there is no separate issue settled relating to lorry covered by the plaint ‘C’ schedule property and in the absence of specific issue and further in the absence of convincing and acceptable evidence in this regard, to grant a decree for partition relating to lorry as well definitely cannot be sustained. Ultimately, the learned counsel would conclude that in the light of the evidence available on record, since the findings recorded by the trial Court being unsustainable, the appeal to be allowed. Submissions of P. Sri Krishna Prakash: 6. Sri P. Krishna Prakash, the learned counsel representing respondent No.1/plaintiff, would maintain that in fact there is no legally acceptable evidence relating to the factum of adoption, but, however, on the confession made in the pleadings it was taken as though the adoption as such cannot be put into serious controversy at all and findings had been recorded. The learned counsel also pointed out to the respective stands taken by the parties in the pleadings and further pointed out to the evidence of DWs.3 and 5 as well and the discrepancies in relation thereto and would maintain that since the mere fact that Ex.B-10 was registered, may not seriously alter the situation. The findings recorded by the trial Court in this regard to be confirmed. The learned counsel in particular had pointed out the suspicious circumstances and would maintain that at any rate in the light of such evidence, it cannot be said that the execution and due attestation of the will - Ex.B-10 had been proved by the appellants/defendants in accordance with law. The learned counsel also pointed out the improbability relating to Ex.B-7 and B-11 as well and would maintain that this alleged adopted son had no independent income and to say that the consideration was paid while getting the relinquishment deed, also cannot be believed and these are sham and nominal documents and however, since on confession made by the plaintiffs the adoption was held to have been taken place in accordance with law and the due share had been given. Such findings need no disturbance at the hands of this Court. The learned counsel in all fairness would submit that it is no doubt true that no separate evidence as such had been adduced in relation to plaint ‘C’ and ‘D’ schedule properties, but, since these properties also belong to the family, convincing reasons had been recorded by the trial Court while decreeing the suit in relation to those items as well and hence, the said findings also not to be disturbed. 7. Heard the learned counsel on record. Perused the oral and documentary evidence available on record and the findings recorded by the trial Court. 8. Before formulating the points for submission and further discussing the evidence available on record and recording findings by this Court, it may be appropriate to have a glance at the respective pleadings of the parties, the issues settled by the trial Court, the evidence available on record and the findings recorded by the trial Court as well in nutshell. Averments made in the plaint: 9. It was pleaded that the plaintiff is the daughter of Voona Byragi, son of Apparao. He died on 23.12.1985. Defendant No.1 is divided brother’s son of late Byragi. Defendant No.1 was living from his childhood with the family of late Byragi, as he has no male children. Plaintiff is the only daughter of late Byragi. Though no formal adoption was taken place, to the knowledge of the plaintiff, still the defendant No.1 was treated as adopted son of late Byragi. ] 10. Late Byragi’s family belong to Hindu religion and are governed by the mithakshara school of Hindu law as modified by the statutes. Late Byragi has two brothers and have divided their joint family properties and the plaint schedule properties have fell to the share of late Byragi under document No. 835 of 1982. Defendant No.1 who was living with the family was assisting in the management of the family and the lorry business. As already stated late Byragi by his efforts has improved the properties by raising buildings, etc., over the existing sites. By the time he died he left behind properties nearly worth Rs.8 to 10 lakhs. Even if defendant No.1 is accepted as the adopted son he is eligible for ½ share and late Bhandari is having other half share and under Hindu Succession Law as class I heir the plaintiff is equally entitled to a share along with defendant No.1 the other half share. Thus plaintiff has a undivided 1/4th share as her mother kanthamma died about two months ago. 11. Defendant No.1 is the father and defendant No.2 is minor undivided son and defendant Nos.3 to 5 are the unmarried daughters. In view of the state amendment to Hindu Succession Act, the unmarried daughter in a joint family has right by birth in the coparcenery itself. Hence they are joined as parties. Thus, the defendant Nos. 1 to 5 are entitled to 3/4th share in the plaint A,B,C and D schedule properties and the plaintiff is entitled to 1/4th share. When the plaintiff as per caste custom approached defendant No.1, about her properties, defendant No.1 began dodging and finally when plaintiff insisted on settlement of her share, defendant No.1 filed a caveat on 20.11.1987. It was obvious from the conduct of defendant No.1 that he wants to evade to give plaintiffs shares. The plaintiff has now learnt that defendant No.1 is trying to create some documents and he was in position of dominate late Byragi during his last days, as he was nearing 80 years. Any document if so obtained by defendant were not legal and binding on the plaintiff. The plaintiff continued to be in joint possession. The defendant Nos. 6 to 12 are added as parties, as they are lessees of Lot No.2 of plaint A – schedule properties. Averments in the written statement of defendant Nos.1 to 5: 12. Defendant Nos.1 to 5 filed written statement admitting the relationship. It was averred that it is true that plaintiff is the dauther of Voona Byragi and that he died on 23.12.1985. Voona Byragi and his wife took defendant No.1 in adopition from sreeranganayakulu, who is brother of Voona Byragi. Voona Sreeranganayakulu, and his wife Saraswathamma gave defendant No.1 in adoption to Voona byragi and his wife Kanthamma. Defendant No.1 was admitted in the Elementary school at Jagannadhapuram, a part of Narasannapeta, Voona Byragi describing himself as father of defendant No.1 on 4.6.1952. 13. The plaintiff and her husband Narasimhulu got the documents executed in their favour wherein defendant No.1 was described as adopted son of Voona Byragi. The husband of plaintiff purchased vacant site under registered sale deed dated 22.5.1982 for a valuable consideration of Rs.750/- from this defendant and his son represented by this defendant No.1 and defendant No.1’s father Voona Byragi. In that document the plaintiff herself was party to the settlement deed dated 25.5.1982 executed in her favour by Voona Byragi and this defendant on his behalf and on behalf of his minor son. In that document the defendant No.1 was described as adopted son of Voona Byragi. The settlement deed is in respect of Ac.1.00 in S.No.21 of Karagam village, which is part of lot No.4 of the plaint ‘B’ schedule land. Defendant No.1 on his behalf and on behalf of defendant No.2 and defendant No.1’s adopted father, Voona Byragi, executed a sale deed date 25.5.1982 in favour of the husband of the plaintiff, a vacant site in Jogipeta, which is a street in Narasannapeta. In that document defendant No.1 is described as adopted son of Voona Byragi. 14. There are several deeds jointly executed by Voona Byragi and defendant No.1 wherein the defendant No.1 was described as adopted son of Voona Byragi. Though the plaintiff stated that there was no formal adoption of defendant No.1 to Voona Byragi, the plaintiff proceeded on the promises that defendant No.1 is adopted son of Voona Byragi and that he became entitled to all the rights of the adopted son of Voona Byragi. Lot No.3 of the plaint ‘B’ schedule property was acquired by government in or about 1987. One acre of land in Lot No.4 of the plaint ‘B’ schedule was settled on the plaintiff by this defendant No.1 and his adoptive father Voona Byragi under a registered settlement deed dated 25.5.1982. The remaining land in the plaint ‘B’ schedule Lot No.4 was sold away by Voona Byragi and this defendant No.1 under registered sale deed dated 27.4.1985. The plaint C-schedule Benze Lory is not owned by the joint family of defendant No.1 and Voona Byragi or defendant Nos.1 to 5. Even in the partition deed relied upon by the plaintiff in the plaint, defendant No.1 was described as adopted son of Voona Byragi and A-schedule property in the partition deed was allotted to the share of defendant No.1 and his adoptive father Voona Byragi and the partition deed did not include the C-schedule lorry. The partition deed was referred to in the plaint part 3(b) as document No.835 of 1982. The ground floor of shop rooms described as Lot No.2 of the plaint ‘A’ schedule was constructed by defendant No.1 with his own funds during the life time of Voona Byragi, after Voona Byragi executed settlement deed dated 12.6.1983 in favour of defendant No.1 in respect of his share of the ground floor. The 1st floor was constructed by defendant No.1 with loan amount of Rs.75,000/- sanctioned by the L.I.C. in its P.A.A.No.722601006, dated 23.7.1987. 15. Some of the D-schedule properties are non-existing and imaginary. The D-schedule is consisting of some exaggerated and fictitious items. Items Nos.1 to 7 of the plaint ‘S’ schedule properties are non-existing properties. There is only one old iron safe worth Rs.600/-, a dining table set, a sofa set and L.P. gas stove were purchased by defendant No.1 recently i.e., about two years back. Items 15, 16 and 17 are Stree dhana properties of defendant No.1’s wife, brought by her as part of her Sari Samanu. There is no table fan described as Item No.12 of the plaint ‘D’ schedule. Ceiling fan and wooden almirah described in Item Nos.13 and 14 of the plaint D schedule were acquired by defendant No.1 after the death of his father. It is significant to note that none of the D-schedule properties are mentioned in the partition deed of the year 1982 between Voona Byragi and his brothers referred to in the plaint as Document No.835 of 1982. 16. Voona Byragi died testate on 23.12.1985 having executed his last registered will and testament dated 01.06.1982 bequeathing his half share in the joint family properties to his wife for her life without rights of alienation and to defendant No.1 with absolute rights after her death in a sound and disposing state of mind. The wife of Voona Byragi, the adoptive mother of defendant No.1 died on 13.9.1987. Under registered relinquishment deed, dated 14.9.1983, Voona Byragi relinquished his half undivided share in favour of defendant No.1 for consideration of Rs.20,000/- in Lot No.1 of the plaint schedule property. Voona Byragi executed a settlement deed dated 12.07.1983 settling his undivided interest in Lot No.2 of the plaint ‘A’ schedule property and Lot No.1 of the plaint ‘B’ schedule property on this defendant No.1. Voona Byragi executed all the documents in a sound and disposing state of mind. He was active throughout his life including the period during which he executed the aforesaid registered documents. He was president of the Primary Agricultural Co-operative Society, Narasannapeta from 25.10.1981 to 11.05.1985 and conducted its affairs very effectively. He gave evidence in a suit in Magistrate court in the year 1983. He was advising the Sarpanch of gram panchayat, Narasannapeta in civic affairs. 17. The defendant Nos.1 to 5 are the absolute owners of the plaint A and B schedule properties except for plot No.3 of the plaint ‘B’ schedule property, which was acquired by the government and Lot No.4 of the plaint ‘B’ schedule property, which was sold away by defendant No.1 and his father. Ac.1.00 of land in Lot 4 of plaint B schedule is covered by the settlement deed in favour of the plaintiff. Some of the plaint ‘D’ schedule properties are “Stree dhana” properties of the wife of defendant No.1. Some of them are acquired by defendant No.1, subsequent to the death of his father, Voona Byragi. Even if, the Plaint ‘D’ schedule properties assumed to be joint family properties of Voona Byragi and defendant No.1, Defendant Nos.1 to 5 are the owners of those properties. In any event, the plaintiff has no share in the plaint ‘A’ to ‘D’ schedule properties. She is entitled to Ac.1-00 of land in Koragam Village, which is part of the property described as Lot No.4 of the plaint ‘B’ schedule. 18. It is untenable to state that plaintiff is entitled to share along with defendant No.1 half of property of Voona Byragi. The defendants are entitled to all the properties described in the plaint ‘A’ to ‘D’ schedule properties and not merely the 3/4th share in the ‘A’ to ‘D’ schedule properties. When the plaintiff approached defendant No.1 about her alleged share of the properties defendant No.1 began dodging and defendant No.1 filed caveat to see that the plaintiff does not take any ex parte order behind his back in the matter, where she has absolutely no case. In filing the caveat, defendant No.1 acted only in defence of his right and to safe guard them. It is false to state that defendant No.1 was in position of nominate the will of late Byragi during his last days. Voona Byragi is 78 years at the time of his death. He was strong-willed person through his life. He always acted as per his own volition. The plaintiff was never in possession of the plaint schedule properties. It is false to state that the plaintiff is in joint possession of the plaint schedule properties. The defendant Nos.6 to 9 are not necessary parties to the suit. They are unnecessarily added as parties to the suit. Hence the suit may be dismissed., as the plaintiff was never is joint possession and possession of the plaint schedule properties with the defendant Nos.1 to 5. 19. Defendant Nos.6 to 12 filed a memo of adoption adopting the written statement of defendant Nos.1 to 5. 20. During the pendency of the suit, defendant No.1 died and his wife was added as defendant No.13 and she also filed a memo of adoption adopting the written statement of defendant Nos.1 to 5. Issues settled by the trial Court: “1. Whether the plaintiff is entitled to ask for the partition of the plaint A to D schedule properties into 4 equal shares and to allot one such share with separate possession? 2. Whether the plaintiff is entitled for further profits? 3. Whether the defendant No.1 is adopted son of Voona Byragi and he became entitled to all the rights of Voona Byragi? 4. Whether item Nos.15,16 and 17 of the plaint S- schedule properties are stree dhana properties of the defendant No.1’s wife and item No.13 and 14 of plaint D-schedule are self-acquisitions of the defendant No.1? 5. Whether the will dt.1.6.1982 executed by Voona Byragi is true, valid and binding on the plaintiff? 6. Whether the relinquishment deed dt.14.9.1983 executed by Voona Byragi in respect of plot No.1 of plaint schedule property is true, valid and binding? 7. Whether the settlement deed dt.12.7.1983 executed by Voona Byragi in respect of Lot.No.1 of plaint B- schedule property is true valid and binding on the plaintiff? 8. Whether the defendants 1 to 5 are absolute owners of plaitn A and B schedule properties, except plot No.III and IV of B-schedule? 9. Whether the defendants 6 to 9 are not proper and necessary parties to the Suit? 10. To what relief?” Evidence available on record: Oral Evidence: For plaintiff:- For defendants:- PW.1:- Tangudu Seetharatnam. (Plff). DW.1:-Vonna Girijakumari PW.2:- Sankalabaktala Parvathi. DW.2:-Thangudu Giridarudu PW.3:- Voona Ramakrishna Gupta DW.3:- Potnuru Gurumurty. DW.4:- Chintu Apparao. DW.5:- Fatnana Ramanayya. Documentary Evidence: For plaintiff:- Exhibits marked. -NIL- For defendants:- Ex.B.1/19.12.86: Date of birth certificate of Voona Venkatapparao issued by Head Master, Samithi Elementary school, Jagannadhapuram, of Narasannapeta. Ex.B.2/25.5.82: C.C. of sale deed executed by Voona Byragi and adopted son of Venkatapparao and other in favour of Tangudu Narasimhulu for Rs.750/- Ex.B.3/25.5.82: C.C. of settlement deed in favour of Tangudu Seetharatnam by Voona Byragi and others. Ex.B.4/27.4.85: C.C. of registration extract of sale deed executed by Voona Byragi and two others in favour of Panga Suryanarayana. Ex.B.5/29.4.85: C.C. of Registration extract of sale deed for Rs.13750/-. Ex.B.6/29.4.85: C.C. of registration extract of sale deed for Rs.9350/- Ex.B.7/10.8.83: C.C. of registration extract of settlement deed for Rs.5000/-. Ex.B.8/23.7.87: L.I.C. loan sanction order for Rs.75,000/- in favour of V.V.Apparao. Ex.B.9/dt.nil. Plan prepared by E.O. Grama Panchayat, Narsannapeta. Ex.B.10/12.16.82: Registered will dt.12.6.1982 executed by Voona Byragi. Ex.B.11/14.9.83: Registration deed dt.14.9.83 for Rs.20,000/-. Ex.B.12/14.4.74: “Upanayana Vivaha Mahoshava Ahavana Patrika” given by Voona Byragi. Ex.B.13/17.3.82: C.C. of Registration extract of partition deed dt.17.03.82. Findings recorded by the trial Court in nutshell: 21. The trial Court appreciating the evidence of PWs.1 to 3, DWs.1 to 5 and also Exs.B1 to B13, recorded findings in detail. The learned Judge in the light of Exs.B-1 to B-4, wherein it was mentioned that defendant No.1 is the adopted son of Voona Byragi and also in the light of the admission made by the plaintiff as well, decided issue No.3 and came to the conclusion that defendant No.1 is the adopted son of Voona Byragi. Further answering issue No.5, whether the will dated 01.06.1982 executed by Voona Byragi is true and valid and binding on the plaintiff, recorded reasons in detail at paragraph Nos.10 and 11, referred to certain decisions as well and came to the conclusion that as per the evidence available on record Voona Byragi was a worldly wise man and the family was having the transport business and further observed that DW.3, who is one of the attestors, deposed in cross- examination that in the evening at 04:00 PM at the request of Bairagi he had signed and he further deposed that he knows that the will has to be executed only on stamp paper and this would show the ignorance of DW.3 about the execution of the will. The defendants counsel also had been pointed out and thus ultimately the learned Judge came to the conclusion that the will is unnatural and the will said to have been executed by Byragi was not proved in accordance with law and it is also not proved that the said Byragi executed the will in sound state of mind and accordingly disbelieved the will. 22. The learned Judge while answering issue No.6 relating to Ex.B- 11 and validity thereof, the aspect of the recital of receipt of consideration of Rs.20,000/- had been referred to and the fact that defendant No.1 had no independent income also had been taken into consideration and ultimately came to the conclusion that the said issue to be answered in favour of the plaintiff and against the defendants. 23. The learned Judge while answering issue No.7 had dealt with Ex.B-7 and ultimately came to the conclusion that in the light of the unnaturality, the same cannot be believed. The learned Judge also recorded further findings and held issue Nos.8 and 9 in favour of the plaintiff. 24. At paragraph Nos.16 to 18, the learned Judge recorded findings on issue Nos.4 and 1 and came to the conclusion that issue No.4 to be decided in favour of the plaintiff and against defendants and issue No.1 also to be decided in favour of the plaintiff and against the defendants and while answering issue No.2 the learned Judge observed that in view of the findings in issue No.1, issue No.2 is also in favour of plaintiff and she is entitled for mesne profits on a separate application and ultimately while answering issue No.10, the learned Judge came to the conclusion that the plaintiff is entitled for partition as prayed for and accordingly the suit was decreed with costs in favour of the plaintiff and against the defendants and the mesne profits to be decided on a separate application. 25. In the light of the circumstances, which had already been recorded by this Court supra, the following points