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Andhra Pradesh High Court
Judges : P.S.NARAYANA
D.Suxyanarayana - Appellant
Versus
I.Suryakanthamma - Respondent
Decided On : 10-08-02
Civil Law – Civil Matter - Indian evidence Act, 1872 – Section 68 – Plaintiff property shown in schedule measuring Ac. 1-54 cents and other lands originally belonged - These properties were got by him in family partition which was effected - Said Peraiah executed a Will in a sound and disposing state of mind - As per terms of said will, schedule properties are to be enjoyed by his wife, and his son, during their lifetime with life estate and thereafter said properties are to be devolved on plaintiff and 1st defendant with equal rights - Subsequent to execution of said Will, Peraiah died and after his death, his wife had been enjoying schedule mentioned proprieties with life estate thereon till she died - Aforesaid son of Peraiah, in his turn executed a registered relinquishment deed where under he had relinquished his life estate in favor of plaintiff and 1st defendant. As per terms of said Will and relinquishment deed, schedule mentioned properties have devolved upon plaintiff and 1st defendant with equal rights - Plaintiff got an undivided half interest in schedule mentioned properties and she had been enjoying ever since death of Deceased - Plaintiff and 1st defendant started enjoying property as tenants in common - Plaintiff is in joint possession of plaint schedule properties along with 1st defendant - Venkatramayya, who happens to be father of plaintiff and 1st defendant, was unfortunately addicted to vices and deceitful means and obtained signatures of plaintiff on some blank papers - It was also pleaded that one person and defendants 2 to 7 have been sought to be impleaded as parties in I. A. No. 125/80 and when said petition was pending said died - Defendants 9 to 13 have been impleaded as legal representatives of deceased - Subsequent to filing of suit, defendants 9 to 13 have been impleaded as parties with a view to enable this Court to adjudicate all the matters involved in suit and hence plaintiff was constrained to file suit for partition and for separate possession of property – Held, IN Court view of respective contentions of parties, following Points arise for consideration in this Appeal - Whether Deceased is entitled to alienate properties exceeding - Whether Ex. A-2 was proved in accordance with law - Whether alienations in favor of 7th defendant and 8th defendant are valid and binding on plaintiff - Whether suit is within limitation - To what relief parties are entitled to - Court says that of considered opinion that 1st respondent/plaintiff would be put to serious loss and prejudice too - Hence, though other aspects relating to limitation had been argued at length, court inclined to frame Issue specified hereunder and remit the matter back to the trial Court for the purpose of adducing further evidence by both the parties in this regard - Court view of fact that an additional issue is framed by this Court and matter is being remanded, court had not discussed other oral evidence and in this view of matter, all questions are left open between parties and parties are at liberty to agitate all other issues also by letting in further evidence too - If they are so advised in this regard - In light of findings recorded above, judgments and decrees of trial Court are hereby set aside and matter is remanded to trial Court for purpose of disposing of matter in accordance with law in light of findings recorded above - Appeals Allowed
( 1 ) THE 10th defendant in O. S. No. 77/80 on the file of Subordinate Judge, Bhimavaram had filed A. S. No. 1910/87. The 8th defendant in the said suit likewise preferred a. S. No. 2802/87 and since both these appeals arise out of the same Judgment, both the Appeals are being disposed of by this Common Judgment.
( 2 ) THE 1st respondent in these Appeals - plaintiff in the suit, filed O. S. No. 77/80 on the file of Subordinate Judge, Bhimavaram for partition of the plaint schedule properties into two equal shares and the averments in the plaint are as follows.
( 3 ) 1st defendant is the sister of the plaintiff. The property shown in the schedule measuring Ac. 1-54 cents and other lands originally belonged to Basula Peraiah. These properties were got by him in the family partition which was effected on 25-2-1959. The said Peraiah executed a Will dated 18-9-1963 in a sound and disposing state of mind. As per the terms of the said will, the schedule properties are to be enjoyed by Smt. Balsu Seshamma - his wife, and Venkatramayya - his son, during their lifetime with life estate and thereafter the said properties are to be devolved on the plaintiff and the 1st defendant with equal rights. Subsequent to the execution of the said Will, Peraiah died and after his death, his wife Seshamma had been enjoying the schedule mentioned proprieties with life estate thereon till she died on 30-9-1976. The aforesaid Venkatrammayya, son of Peraiah, in his turn executed a registered relinquishment deed dated 12-10-1969 whereunder he had relinquished his life estate in favour of the plaintiff and the 1st defendant. As per the terms of the said Will and the relinquishment deed, the schedule mentioned properties have devolved upon the plaintiff and the 1st defendant with equal rights. The plaintiff got an undivided half interest in the schedule mentioned properties and she had been enjoying eversince the death of Seshamma. The plaintiff and the 1st defendant started enjoying the property as tenants in common. Thus the plaintiff is in joint possession of the plaint schedule properties along with the 1st defendant. Venkatramayya, who happens to be the father of the plaintiff and the 1st defendant, was unfortunately addicted to vices and deceitful means and obtained signatures of the plaintiff on some blank papers. The 1st defendant being a minor, the properties were being enjoyed by venkatramayya who was looking after the cultivation affairs etc. , of the schedule mentioned properties. The plaintiff resumes the rights and asks for partition of the properties in R. S. No. 115/9 - Ac. 0-09 cents; r. S. No. 115/5 - Ac. 0-30 cents and r. S. No. 164/4 - Ac. 0-15 cents, for which relinquishment was not given by venkatramayya. It was further pleaded that the plaintiff had been demanding the 1st defendant to co-operate for partition and separate possession of the schedule mentioned properties into two equal shares by metes and bounds. However, the 1st defendant being under the influence of the said Venkatramayya had not been cooperating for partition and was postponing the same on some count or the other. A receiver had been appointed in the above suit to take possession of the suit property and manage the same and to deposit the proceeds into Court. As a result of the receiver s report, it was revealed that 2nd defendant, Seshyya, son of Suryanarayana avadhanulu in an extent of Ac. 1-00 of the land in items 3 and 4 of the plaint schedule, defendants 3 to 6 in an extent of Ac. 1-75 cents of land in item No. 5 of the plaint schedule, 7th defendant in an extent of ac. 0-55 cents of land in item No. 6 of the plaint schedule and 8th defendant in item no. 10 of the plaint schedule, have been setting up some interest falsely and without any authority at the instance of the 1st defendant. The alleged alienations in their favour are only collusive, nominal and without any effect and do not bind the plaintiff. It was also pleaded that Late devarakon
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