Telangana High Court
Katrapally Satyabhaskar Reddy vs Pakanati Renukamma on 10 January, 2025
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
I.A.No.1 of 2024
In/And
A.S.No.479 OF 2023
JUDGMENT:
The present Appeal is directed by appellant/defendant
No.2 against the judgment and decree (hereinafter will be
referred as ‘impugned judgment’) dated 14.07.2023 in
O.S.No.39 of 2022 (Old O.S.No.7 of 2018), on the file of
Principal District and Sessions Judge, Narayanpet (hereinafter
will be referred as ‘trial Court’), whereby the suit for partition
was preliminarily decreed.
2. For the sake of convenience, the parties hereinafter are
referred to as they were arrayed before the trial Court.
3. The brief facts of the case are that Plaintiff Nos.1 to 4 filed
the main suit vide O.S.No.7/2018 on the file of II Additional
District Court (FTC) Mahabubnagar against defendant Nos.1 to
3 seeking partition of the suit schedule properties.
Subsequently the case was renumbered as O.S.No.39 of 2022
on the file of learned Principal District and Sessions Judge,
Narayanpet. The contentions of the plaintiffs as can be seen
from the plaint averments in O.S.No.39 of 2022 are as under:
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a) Plaintiff Nos.1 to 4 and defendant No.3, who are the
daughters and defendant No.2, who is the son, are the children
of defendant No.1 and deceased Katrapaly Manemma. The
father of defendant No.1 by name Sai Reddy acquired Sl.No.1 to
8 of suit ‘A’ schedule of properties and after his demise
defendant No.1 succeeded those properties and by that time
plaintiff Nos.1 to 4, defendant Nos.2 and 3 were already born,
as such, they are coparceners of the suit schedule lands. Sl.
No.9 of suit ‘A’ schedule land and Sl.No.10 of ‘B’ schedule house
plots were acquired in the name of Katrpally Manemma, who
died intestate leaving behind her, plaintiff Nos.1 to 4 and
defendant Nos.1 to 3 as her lelgal heirs as per Section 15 of
Hindu Succession Act. The plaintiffs and defendants are equal
share holders.
b) All the suit schedule properties are the joint family
properties of the plaintiffs and defendants and they are in joint
possession of the same without any partition by metes and
bounds. Plaintiffs and defendant No.3 are married but their
possession over the suit schedule premises is constructive
possession along with defendant Nos.1 and 2.
c) Defendant No.1 having attained the age of more than 75
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years on several occasions was prepared to settle the suit
schedule properties but at the instance of defendant No.2, no
steps were taken for division of suit schedule properties. On
28.12.2017 when the plaintiffs demanded for partition,
defendant Nos.1 and 2 did not agreed to effect partition of the
suit schedule properties, hence, this suit.
4. In reply to the above plaint averments, defendant No.3
failed to contest the suit despite receipt of summons from the
Court and on the other hand, defendant Nos.1 and 2 filed their
joint written statement. The brief averments of written
statement filed by defendant Nos.1 and 2 are as under:
a) Sl. Nos.1 to 4, 6 to 9 of suit ‘A’ schedule lands and other
landed properties at Jaklair and Katevpally villages of Makthal
Mandal are self acquired properties of defendant No.1 having
purchased the same from B. Buchja Reddy. Hence, defendant
No.1 has got absolute rights and exclusive ownership over the
said properties. Neither plaintiff Nos.1 to 4 nor defendant Nos.2
and 3 have got any share in Sl. Nos.1 to 4, 6 to 9 of suit ‘A’
schedule lands. Defendant No.2 dug borewells and installed
electricity motors with his own earnings, as such, the plaintiffs
and defendant No.3 have no right or share in the suit ‘C’
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schedule property.
b) Smt. Katrapally Manemma is the absolute owner of
Sl.No.5 of suit ‘A’ schedule property and item No.10 of suit ‘B’
schedule plot, as such, plaintiff Nos.1 to 4 and defendant Nos.1
to 3 are nothing to do with the said land and house plot. Smt.
Manemma purchased Sl.No.10 of suit ‘B’ schedule property
through registered sale deed bearing document No.831/2002
dated 26.06.2002 from her father by name V. Venkat Ram
Reddy and joint paternal uncle by name Anantha Reddy.
Similarly, Smt. Manemma purchased Sl. No.5 of suit ‘A’
schedule property. Smt. Manemma executed Will Deed in
favour of defendant No.2 in respect of Sl. No.5 of suit ‘A’
schedule property and Sl.No.10 of suit ‘B’ schedule property
and after her demise, both the properties have become exclusive
properties of defendant No.2. Plaintiff Nos.1 to 4 and defendant
No.3, who got married and living at their respective in-laws
places, are not coparceners and they are not in possession of
any of the suit schedule properties.
c) During the life time of defendant No.1, Plaintiff Nos.1 to 4
and defendant Nos.2 and 3 have no right or any claim for share
in Sl. Nos.1 to 4, 6 to 9 of suit ‘A’ schedule lands. The suit
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5
schedule properties are neither ancestral properties nor joint
family properties as alleged by the plaintiffs. The plaintiffs
never approached and demanded for partition on 28.12.2017,
as such there is no cause of action for filing the suit. Thus,
prayed to dismiss the suit.
5. Based on the above pleadings, the trial Court has framed
the following issues:
1. Whether the suit schedule properties are ancestral
properties and consequently, whether the plaintiffs are
entitled for preliminary decree of partition for their alleged
share as prayed for?
2. To what relief?
6. On behalf of plaintiffs, PWs 1 to 3 were examined and got
marked Exs. A1 to A7. On behalf of defendants, DWs 1 to 4
were examined and got marked Exs.B1 to B14. At the instance
of defendant Nos.1 and 2, plaintiff Nos.2 and 4 were examined
as CWs 1 and 2. The trial Court on appreciating the oral and
documentary evidence, has preliminarily decreed the suit by
dividing the suit ‘A’ to ‘C’ schedule properties into seven equal
shares by metes and bounds and allot four of such shares in
favour of the plaintiffs and three of such remaining shares in
favour of defendant Nos.1 to 3. Aggrieved by the same, the
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defendant No.2 filed the present appeal to set aside the
judgment and decree.
7. Heard Sri J. Prabhakar, learned Senior Counsel
representing Smt. Kanumuri Kalyani, learned counsel on record
for the appellant and Sri Ravi Babu, learned counsel for the
respondent and perused the record including the grounds of
Appeal.
8. The contention of the learned counsel for the defendant
No.2 is that though Will Deed under Ex.B2 executed by Smt.
Manemma i.e., mother of plaintiffs in favour of defendant No.2 in
respect of properties stood in her name is proved by examining
the attestors of Will Deed through DWs 3 and 4, whose evidence
is constant and sufficient to prove the Will Deed, the Court below
failed to appreciate the same. It is further contended that
during the life time of K. Narsi Reddy i.e., father of the Appellant,
he executed a Will Deed under Ex.B3 again after the decree,
again the father of the appellant executed another Will Deed
dated 31.07.2023 in favour of the appellant bequeathing the
property fell as per decree or court order. The father of the
appellant died on 20.08.2023 and after the demise of appellant’s
father, the defendant No.2 succeeded the property acquired by
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him.
9. On the other hand, the learned counsel for the plaintiffs
relied upon the following decisions in support of his contentions
with regard to removal of suspicious circumstances involved in
a Will Deed to consider it as a valid document.
a) In Gurdial Kaur and others v. Kartar Kaur and others 1
the Honourable Supreme Court observed that the law is well
settled that if there is suspicious circumstance about the
execution of the will, it is the duty of the person seeking
declaration about the validity of the will to dispel such
suspicious circumstances. If a Will being registered and having
regard to the other circumstances, is accepted to be a genuine,
the mere fact that the Will is a registered will it will not by itself
be sufficient to dispel all suspicions regarding the validity of the
Will where suspicions exist. The broad statement by witness
that he had witnessed the testator admitting execution of the
will was not sufficient to dispel suspicions regarding due
execution and attestation of the will. It was specifically held that
registration of the Will by itself was not sufficient to remove the
suspicion. Where the propounder was unable to dispel the
1 (1998) 4 Supreme Court Cases 384
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suspicious circumstances which surrounded the question of
valid execution and attestation of the Will, no letters of
administration in favour of the propounder could be granted.
b) In Mathai Samuel and others v. Eapen Eapen (dead) by
Lrs and others 2 the Honourable Supreme Court observed that
the essential quality of a testamentary disposition is
ambulatoriness of revocability during the executant’s life time
and such a document is dependent upon the executant’s death
for its vigour and effect.
c) In Smt. Jaswant Kaur v. Smt. Amrit Kaur and others 3
the Honourable Apex Court observed that the true question
which arises for consideration is whether the evidence led by
the propounder of the Will is such as to satisfy the conscience
of the court that the Will was duly executed by the testator and
it is impossible to reach such satisfaction unless the party
which sets up the Will offers a cogent and convincing
explanation of the suspicious circumstances surrounding the
making of the Will.
d) In Murthy and others v. C. Saradambal and others 4 the
2 (2012) 13 Supreme Court Cases 80
3 (1977) 1 Supreme Court Cases 369
4 (2022) 3 Supreme Court Cases 209
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Honourable Supreme Court that merely because Will was a
registered one, it would not mean that the statutory
requirements of proving the Will need not be complied with. In
Shivakumar and others v. Sharanabasappa and others 5 the
Honourable Supreme Court observed that mere proof of the
document in accordance with the requirements of Section 68 of
the Evidence Act is not final and conclusive for acceptance of a
document as a Will. It was further observed that when
suspicious circumstances exist and the suspicions have not
been removed, the document in question cannot be accepted as
a Will.
e) In State of Andhra Pradesh through Principal
Secretary and others v. Pratap Karan and others 6 the
Honourable Supreme Court observed that the khasra pahani is
a document of title has been proved beyond doubt.
10. There is absolutely no doubt with regard to the principles
laid down in the above said decisions. However, it is to be
observed that the above principles of law will come into picture
only when the executor of Will Deeds has authority to deal with
the properties, which were included in the Will Deeds. If the
5 (2021) 11 Supreme Court Cases 277
6 (2016) 2 Supreme Court Cases 82
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suit schedule properties are self acquired properties of
defendant No.1, then certainly defendant No.1 is at liberty to
execute any deed to transfer the properties standing in his
name in favour of others. But it is the vehement contention of
the plaintiffs that the suit schedule properties are ancestral
properties and Will Deeds cannot be executed in respect of such
properties, which are liable to be partitioned. Thus, the
question that needs to be adjudicated at this juncture is
whether the suit schedule properties are ancestral properties of
plaintiffs & defendants or self acquired properties of defendant
No.1.
11. One of the grounds raised by the defendant No.2 in the
grounds of appeal is that the oral evidence of PWs 1 to 3 and
documentary evidence under Exs.A1 to A7 is not supporting the
contention of the plaintiffs that the suit schedule properties are
ancestral properties. It is further pleaded that the documents
more particularly Exs.A1 and A2 i.e., Khasra Pahani for the
year 1954-55 pertaining the suit lands discloses the name of
one Buccha Reddy and Nagamma as pattadar of suit lands in
Jaklair Village and the name of Turkapally Hussain’s name as
pattadar of lands in Katrapally Village; the name of Sai Reddy
i.e., grandfather of plaintiffs as claimed by the plaintiffs is not
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shown as pattadar of suit lands.
12. It is the specific case of the plaintiffs that the suit
schedule properties having been acquired by defendant No.1
through succession and since there was no partition earlier,
they are entitled to have the properties partitioned amongst the
parties. In the written arguments, the plaintiffs have filed the
family tree, which discloses that Sanjeeva Reddy has two
children i.e., daughter (Ammakka) and son (Buccha Reddy).
Ammakka has a daughter by name Narasamma, who got
married to Sai Reddy, who is the father of defendant No.1.
Narasamma and Narsi Reddy gave birth to two sons by name
Kista Reddy and Narsi Reddy. Admittedly, the defendant No.1
stated to have got the properties from Buccha Reddy.
13. A property can be ancestral property, if the same is
inherited either from a paternal ancestor or maternal
grandfather. A property inherited by a male Hindu from his
father, grandfather or great grandfather is ancestral property.
The children, grandchildren and the great-grandchildren of the
person inheriting such property acquire an interest in it by
birth. Daughters are eligible to get a share in their parents’
ancestral property. Thus, a maternal grandchild has a share in
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the property. Therefore, it is clear that if the property was
inherited by the maternal grandmother from their ancestors, it
is considered as ancestral property. Ancestral property rights
apply equally to both paternal and maternal property.
Grandchildren, including those through the maternal line, may
have a claim if their mother has inherited or has a vested right
in the ancestral property. If the property was acquired by the
maternal grandmother, they have full ownership and can
distribute it to anyone they choose through a will or gift deed. If
they pass away intestate, the property shall be divided among
their legal heirs according to the Hindu Succession Act.
14. As per the evidence of the defendant No.1 as DW1, he
alleged to have purchased the land from private sales but did
not file the said private sale documents before the Court and
that he did not even file any document related to the mutation
of suit lands in his name. As seen from the documentary
evidence, the name of defendant No.1 was shown as occupier of
the land in Khasra Pahani for the year 1954-1955 marked as
Exs.A1 and A2 and by that year the age of defendant No.1
would have been 12 years and thereby it cannot be expected of
a minor boy aged 12 years to acquire the properties without
having any source of income, more particularly to purchase
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immovable properties admeasuring into acres. Except
contending in the written statement that he has got the
properties from B. Buccha Reddy, the defendant No.1 has not
explained as to what is the mode of acquiring the said
properties. The defendant No.1 did not even explain as to when
he alleged to have purchased the said lands from Buccha Reddy
and through which mode the consideration was alleged to have
been received by Buccha Reddy from the defendant No.1 for sale
of the said properties to defendant No.1.
15. DW1 admitted in his cross examination dated 27.11.2022
that his paternal grandmother is Ammakka. However, DW1 in
his cross examination dated 06.01.2023 deposed that Ammakka
is his maternal grandmother. DW1 deposed that he does not
know the name of his paternal grandfather. DW1 pleaded
ignorance as to whether Buchi Reddy is the son of Sanjeeva
Reddy and also denied to a suggestion that Buccha Reddy is the
brother of Ammakka. DW1 further deposed that he is not aware
Buchi Reddy, S/o. Snajeeva Reddy is the original pattadar of
suit schedule lands as per Khasra Pahani. However, DW1
admitted that as per Ex.A1 Buchi Reddy is the son of Sanjeeva
Reddy. These admissions on the part of DW1 disclose that he
intends to suppress his relationship with the original owner
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Buccha Reddy, who is none other than the brother of maternal
grandmother of defendant No.1.
16. It is the contention of the defendants that since DW1 was
indebted to third parties, he alienated the suit schedule lands to
DW2. Though DW1 pleaded that he has filed documents
showing his liabilities towards third parties, no documentary
evidence is placed before this Court to establish the same.
17. It is the specific evidence of DW2 that his father
bequeathed his self acquired properties, which are suit schedule
lands, by way of Will Dated 13.05.2015 to him in the presence
of Sri G. Satyanarayana Reddy and Sri P. Madhusudhan Reddy.
A perusal of entire written statement does not disclose the Will
Deed dated 13.05.2015 alleged to have been executed by the
defendant No.1 in favour of defendant No.2 in respect of suit
schedule properties. It is settled law that in the absence of any
pleading, any amount of evidence cannot be entertained. Thus,
Ex.B3 has no evidentiary value.
18. DW2 deposed that since the suit lands are self acquired
properties of his father and also to keep his name and to
preserve his properties, he purchased the said properties by
obtaining loan and selling his wife’s gold ornaments vide sale
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deed bearing document Nos.3012/2020, 3011/2020 and
23/2020 under Exs.B4 to B6.
19. It is pertinent to note that during the pendency of the suit
proceedings, Sale Deeds under EXs.B4 to B6 were executed and
it attracts ‘doctrine of lis pendens’ as per Section 52 of the
Transfer of Property Act. Further, this action on the part of
defendants in executing sale deeds during the pendency of the
suit is appearing to be their motive to defeat the rights of the
plaintiffs over the suit schedule properties.
20. Moreover, as rightly contended by the learned counsel for
the plaintiffs, the alleged dates on which the consideration was
paid, is not appearing in the said sale deeds. The defendant
No.2 is admittedly leading his livelihood by doing government
job and it is difficult for a government servant to procure such a
huge sum of money in cash at a time. The consideration was
not paid in cheque or bank transfer. As rightly pointed out by
the learned counsel for the plaintiffs, when there is already a
Will Deed in favour of defendant No.2 by defendant No.1, there
is absolutely no necessity for defendant No.1 to execute
registered sale deed in respect of the same properties. Thus,
these transactions are appearing to be sham, bogus and created
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for the purpose of defeating the rights of the plaintiffs over the
suit schedule properties.
21. The learned counsel for the plaintiffs submitted that there
was no necessity for the defendant No.1 to sell the properties
that too to defendant No.2. If at all the defendant No.1 was in
need of money for his treatment, which expenses the defendant
Nos.1 and 2 cannot afford, defendant No.1 ought to have sold
the said properties to third parties rather than selling them to
defendant No.2, who allegedly facing difficulty in meeting the
medical expenses of his father and also to meet the school
expenses of his children.
22. DW1 in his evidence deposed that prior to the suit and
subsequent there to he has been staying alone in the village,
collecting the lease amounts, which would clearly show that he
was on his own and not depending on defendant No.2, who
deposed that he was taking care of DW1. Even DW2 admitted
in his evidence that after the death of his mother, DW1 was
living alone. The evidence of DWs 1 and 2 is not corroborating
with each others evidence.
23. In the written statement the defendants pleaded that item
Nos.1 to 4, 6 to 9 of suit ‘A’ schedule lands and other landed
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property at Jaklair Village and Katrevpally Village are self
acquired properties of defendant No.1 having got the same from
B. Buccha Reddy. DW1 also reiterated the same in his chief
examination affidavit. But the defendant No.2, who was
examined as DW2, deposed in his chief examination that item
Nos.1 to 4, 6 to 9 of suit ‘A’ schedule lands are self acquired
properties of his father from one B. Bucha Reddy, Smt.
Nagamma and Turka Hussain Saheb. Thus, the DW2 has
improvised the version of his father by adding the names of
Smt. Nagamma and Turka Hussain Saheb apart from the name
of B. Buccha Reddy as the absolute owners of the above said
lands.
24. It is further contention of the learned counsel for the
defendant No.2 that the trial Court erred in observing that the
defendants did not choose to file any document to show that the
suit lands of ‘A’ schedule were purchased from Bucha Reddy or
any other third person and since the plaintiffs have discharged
their burden to prove the suit properties as ancestral
properties, the burden shifts on defendants to prove as their
self acquired properties. It is further contended that the
plaintiffs have to prove the case on their own rather than
depending upon the weakness of the defendants. It is also
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submitted by the learned counsel for the defendants that there
is no presumption of treating the suit schedule properties are
joint family properties.
25. In a suit for partition, all parties with an interest in the
property are considered necessary parties, and the court treats
them as interested stakeholders in determining the rights and
liabilities over the suit schedule properties. Thus, every
interested party is deemed to be a plaintiff. In Adiveppa and
others v. Bhimappa and another 7, the Honourable Supreme
Court emphasized that there is a legal presumption that every
Hindu family is joint in food, worship, and estate. The
undivided joint family is the normal characteristic of a Hindu
family and presumption is that the members of the family are
living in a state of jointness, unless contrary is proved. Hence,
any member asserting that certain properties are self-acquired
bears the burden of proving such a claim. In the absence of any
evidence on behalf of defendants, it would draw an inference
that the properties as joint family properties. In the present
case, the defendants claimed that the suit schedule properties
are self acquired properties of defendant No.1 but failed to
7 AIR 2017 Supreme Court 4465
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establish the same. The defendants did not even establish as to
how defendant No.1 acquired or secured those properties. In
view of the principle laid down in the above said decision, it
cannot be said that the plaintiffs are depending upon the
weakness of the defendants but in fact even the defendants
failed to establish their own case to substantiate that the suit
schedule properties are self acquired properties of defendant
No.1.
26. The learned trial Court observed in the impugned
judgment that the plaintiffs have established that item Nos.1 to
9 of suit “A” schedule lands are ancestral properties of plaintiffs
and defendant No.1 acquired the said properties from his
maternal grandmother, his father and therefore, the plaintiffs
have equal right over the item Nos.1 to 9 of suit schedule lands
on part with the son i.e., defendant No.2. However, it is to be
seen that Smt.Katrepelly Manemma i.e., mother of defendant
No.2 alleged to have purchased item No.10 of ‘B’ schedule
property i.e., house plot under registered sale deed bearing
document No.831/2002 dated 26.06.2002 under Ex.A7 from
her father Sri Venkatrama Reddy and her junior paternal uncle
Sri Anantha Reddy and it is her absolute property. Similarly,
Smt. Katrepelly Manemma purchased item No.5 of suit ‘A’
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schedule property and thereafter she executed Will Deed under
Ex.B2 in favour of defendant No.2 in respect of item No.5 of suit
‘A’ schedule property and item No.10 of ‘B’ schedule property.
PW3, who is the husband of plaintiff No.4, deposed that major
part of the suit schedule lands are ancestral properties of
defendant No.1 and part of the suit schedule properties
purchased by late Smt. K. Manemma. The learned Trial Court
failed to consider this part of evidence of PW3 in arriving to a
conclusion that item No.5 of suit ‘A’ schedule property and item
No.10 of ‘B’ schedule property are the self acquired properties of
mother of defendant No.2 i.e., Smt. K. Manemma.
27. During the pendency of the present appeal, the
respondents/plaintiffs filed I.A.No.1 of 2024 for receiving
additional document i.e., pahani for the year 2019-20 by
invoking Order XLI Rule 27 read with Section 151 of the Code of
Civil Procedure. The reason assigned by the plaintiffs for filing
the additional document at this appellate stage is that they
have made an application for issuance of certified copy of
pahanies for the lands in Sy.No.477 from the year 2017-2018 to
2023-2024 and the same were furnished to them on
21.11.2024. It is the contention of the plaintiffs that the
certified copy of the pahani for the year 2017 as against
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sy.No.477 reflect the name of their mother as pattedar and
possessor and the pahani for the year 2019-2020 in respect of
Sy.No.477 would reflect the name of their father as pattedar
and possessor and mutation was carried out on 20.08.2019. It
is also contended that the said document, which is necessary
and proper for just decision of the case, was not within their
knowledge at the time of trial and also when the suit was
decreed.
28. The purpose of filing the said additional document is that
the plaintiffs would like to falsify the statement of the
defendants as to the execution of Will Deed by mother of the
plaintiffs. But in the counter to the above said petition, the
defendants contended that their mother died in the year 2017
by leaving Will Deed dated 13.05.2015 and the plaintiffs have
filed suit in the year 2018 after coming to know about the Will
Deed with false allegations. It is further contended by the
defendants that mere stray entry in the pahani for the year
2019-2020 in the name of father as pattadar and possessor
does not confer any title and it would not falsify the execution of
Will Deed by the mother. It is further argued that the petition
is filed at belated stage with an intention to delay the disposal of
the Appeal and that additional document is not relevant in
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adjudicating the dispute and thus, prayed to dismiss the
interlocutory application.
29. Admittedly the suit was filed in the year 2018 and the
document which the plaintiffs are intending to file in this Appeal
pertains to the year 2019-2020. Thus, the possibility of filing
the said document at the relevant point of time was very remote.
The plaintiffs have established that they were unable to produce
the evidence despite due diligence as the said evidence was not
within their knowledge. However, the evidence that is being
introduced at this stage is appearing to be not relevant to the
issue in the present case because PW3, who is one of the
witnesses examined on behalf of plaintiff, categorically deposed
that part of the suit schedule properties purchased by late Smt.
K. Manemma. The said aspect was mentioned by the
defendants in their written statement apart from asserting that
she also executed Will Deed in favour of defendant No.2 in
respect of those properties. There is no clarity as to how the
introduction of additional evidence i.e., pahanis would falsify
the aspect of Smt. Manemma executing Will Deed in favour of
defendant No.2 in respect of part of suit schedule properties. A
Will Deed exists in perpetuity and is valid for time immemorial
even after the death of the testator and there is no bar on its
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enforcement. The beneficiary in whose name the will is written
gets an indefinite right to get it executed anytime after the death
of the testator as the will remains valid for time immemorial.
Thus, it is not mandatory that a Will Deed should be acted upon
immediately after the death of testator. Merely because
mutation in respect of the above said properties was effected on
20.08.2019 in the name of father and mother of defendant No.2,
it cannot falsify the statement as to the execution of Will Deed
by Smt. K. Manemma in favour of defendant No.2. Thus, it
appears that no useful purpose would be served by allowing the
additional evidence that is sought to be introduced by the
plaintiffs in the present Appeal. Hence, I.A.No.1 of 2024 is liable
to be dismissed.
30. Since, item No.5 of suit ‘A’ schedule property and item
No.10 of ‘B’ schedule property are self acquired properties of
Smt. K. Manemma, she is at liberty to deal with the said
properties as per her whims and fancies. Subsequently,
Smt.Katrepelly Manemma passed away on 07.06.2016 and
thereby the defendant No.2 has succeeded to the above said
properties by way of Ex.B2 prior to the filing of the suit. The
defendants have also clearly mentioned about the execution of
Will Deed by mother of defendant No.2 and it is amply
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supported by Ex.B2. Therefore, it is clear that item Nos. 5 and
10 of the suit schedule properties i.e., Ac.02.80 guntas of land
and open plot admeasuring 660 square yards are the exclusive
properties of mother of the defendant Nos.2 and 3 and plaintiffs
and she has executed registered Ex.B2 Will Deed in respect of
the said properties in the name of defendant No.2.
31. It is the specific contention of the defendants that since
the suit schedule properties are self acquired properties of
defendant No.1, the plaintiffs cannot claim for partition of the
said properties during the life time of defendant No.1. The
learned counsel for the plaintiffs submitted that since defendant
No.1 passed away on 20.08.2023, the maintainability of the suit
cannot be raised now on the aspect of filing the suit during the
life time of defendant No.1.
32. In view of the above discussion, this Court is of the
considered view that the plaintiffs could establish that except
item No.5 of suit ‘A’ schedule property and item No.10 of ‘B’
schedule property, all the suit schedule properties in the suit
are ancestral properties of plaintiffs, defendant Nos.2 and 3 and
thus, they are liable to be partitioned and on the other hand,
the defendants failed to establish that the suit schedule
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A.S.No.479 of 2023
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properties are the self acquired properties of defendant No.1.
Though the trial Court held that all the suit schedule properties
are ancestral properties of plaintiffs, defendant Nos.2 and 3, in
view of the discussion in the above paragraph, item No.5 of suit
‘A’ schedule property and item No.10 of ‘B’ schedule property
are required to be excluded from the from the purview of suit
schedule properties that are liable to be partitioned in this case.
Therefore, the decree and judgment passed by the trial Court is
liable to be modified to the above extent.
33. In the result, this Appeal is partly allowed by modifying
judgment and decree dated 14.07.2023 in O.S.No.39 of 2022
(Old O.S.No.7 of 2018) passed by the learned Principal District
and Sessions Judge, Narayanpet only to the extent of excluding
item No.5 of suit ‘A’ schedule property and item No.10 of ‘B’
schedule property i.e., Ac.02.80 guntas of land and open plot
admeasuring 660 square yards from the purview of suit
schedule properties that are liable to be partitioned in this case.
The remaining part of the impugned judgment holds good.
Further, I.A.No.1 of 2024 is dismissed. There is no order as to
costs.
As a sequel, pending miscellaneous applications, if any,
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A.S.No.479 of 2023
26
shall stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 10.01.2025
AS
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