N. Srihari (D) Through LRs. vs N. Prakash

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(SC) 276

Dr. Arijit Pasayat & P. Sathasivam
N. Srihari (D) Through LRs. & Ors - PETITIONER
Versus
N. Prakash & Ors - RESPONDENT
Appeal (civil) 1420-1421 of 2008
CIVIL APPEAL NOS. 1420-1421 OF 2008
(Arising out of SLP (C) Nos. 17808-17809 of 2005)
WITH
CIVIL APPEAL NOS. 1429,1422-1423,1424-1425,1426
& 1427-1428 OF 2008
(Arising out of SLP(C) Nos. 18481/2007,
24682-24683/2005, 26425-26426/2005,
26429/2005 & 23029-23030/2007
Decided On: 19/02/2008

Headnote:
Civil Procedure Code ,1908 - Section 151 – Property Will - One had a wife and two sons, had two wives five sons and three daughters through his first wife and second wife was issueless - Had a wife, and six sons - On executed a Will under which he mentioned that lands bearing Survey admeasuring 19 acres and 15 guntas situated Ranga Reddy District were in his protected tenancy and that other movable properties mentioned therein, were acquired by himself and his wife and bequeathed all movable and immovable properties jointly held by him and his wife in favour of his wife and his eldest daughter-in-law - Beneficiaries of Will were to enjoy properties jointly was given life time interest under said will, second son was an attestator of Will executed by his father – Held , Since Will executed is not brought on record by either of contesting parties, evidence available on record has to be considered to find contents of Will - In fact, plaintiffs filed a copy of Will executed along with other documents as document with plaint- But neither side brought that document on record as an exhibit. Neither side took steps to send for original of Will, which as per evidence of DW-1 is in custody of Andhra Bank - Above pleadings as well as discussion by trial Court clearly show about existence of earliest Will executed - Fact remains that though plaintiffs themselves placed a certified copy of said Will, original of same has not been produced by defendants - It is their case that original had been filed in a connected suit being filed by a Bank Andhra Bank - Though steps had been taken by High Court for transfer of said document, till its final decision, same was not reached and ultimately High Court disposed of appeal on basis of available materials and confirmed judgment and decree of trial Court - In view of fact that plaintiff themselves referred to Will in their plaint, asserted same by contesting defendant in their written statement and specific reference to same by trial Court as well as High Court, in absence of specific finding as to Will, Court are of considered view that in interest of justice, matter has to go back to High Court for fresh consideration in respect of earliest Will - Appeals are disposed of

JUDGMENT:

P. Sathasivam, J. -- Leave granted.

2. The appellants herein are the unsuccessful defendants in O.S. No.9 of 1993 on the file of the trial Court as well as the High Court. The LRs of the deceased parties as well as the purchasers and third parties who were not parties before the trial Court and the High Court also filed appeals. The respective claim/stand of the parties is being explained hereunder. In order to understand their claim, entitlement etc., let us refer to the geneology table of the family of N. Saya Goud. GENEOLOGY OF N. SAYA GOUD N. Saya Goud --------- Chandramma (wife) (Died in 1956) (Died on 23.4.1984) | | | | N. Balrajaiah (son) N. Sathiah Goud (son) Died in 1981 Respondent 6(i)(a) | | ____________________________ | | | Sulochana (Wife) (died) N. Kausalya (Wife) N. Pentamma( Wife died) | Defendant-1 | | | _________________________________________________________ | | | | | | | N.Srihari N. Srinivas N. Sayanna N.Laxminarayana N. Dayanand | Petnr. Resp.10 Resp.11 Petnr.2 Petnr.3 | Def.2 Def.3 Def.4 Def.5 Def.6 | (died) (died) | Rep.by Rep.by Lrs. | Lrs.1(i)to(vi) 10(i) to (iii) | | ______________________________________________________________ | | | | | | | | | | | | N.Prakash N. Narender N. Kasinath N.Venkatesh N. Arvind N. Suresh Res.1 Resp.2 Resp.3 Resp.4 Resp.5 Respondent Plaintiff-1 Plaintiff-2 Plaintiff-3 Plaintiff-4 Plaintiff-5 Plaintif-6 Died Rep.by Lrs. 6(i) to (iii)

3. One Shri N. Saya Goud had a wife by name, Smt. Chandramma and two sons, namely, Balarajiah Goud and Sathaiah Goud. Balarajiah Goud had two wives, Pentamma (first wife) and Kausalya (second wife), five sons and three daughters through his first wife and the second wife was issueless. Sathaiah Goud had a wife, Sulochana and six sons. On 2.1.1956, Shri Saya Goud executed a Will under which he mentioned that the lands bearing Survey Nos. 284, 285, 290, 292 and 293 admeasuring 19 acres and 15 guntas situated in Lothukanta, Alwal, Ranga Reddy District were in his protected tenancy and that the other movable properties mentioned therein, were acquired by himself and his wife Chandramma and bequeathed all the movable and immovable properties jointly held by him and his wife in favour of his wife, Smt. Chandramma and his eldest daughter-in-law Pentamma. The beneficiaries of the Will were to enjoy the properties jointly. Smt. Chandramma was given life time interest under the said will. Sathaiah Goud, second son of Shri Saya Goud, was an attestator of the Will dated 2.1.1956 executed by his father.

4. After the demise of Shri Saya Goud, the pattadars of the land for which shri Saya Goud acquired the right of protected tenancy had transferred their pattadars right and interest in favour of Smt. Chandramma and Smt. Pentamma jointly as the heirs of Shri Saya Goud upon payment of the required consideration in respect of the land of an extent of 19 acres 15 guntas and consequently the Deputy District Collector passed an award dated 17.4.1956 in favour of Smt. Chandramma and Smt. Pentamma as per his award No. T/85/1954. Thereafter in 1959, Smt. Chandramma and Smt. Pentamma jointly

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