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Andhra Pradesh High Court
Judges : S.V.MARUTHI
T.RAMESH - Appellant
Versus
LAXMAMMA - Respondent
Decided On : 02-25-99
Evidence Act,1872 - Section 90 - Suit for injunction - Suit for partition - For partition and separate possession of half share of plaint schedule properties - Partition suit are referred hereunder as other suits relate to consequential reliefs died leaving behind him his two sons - They became owners of two equal halves of plaint schedule properties and they enjoyed independently - Had no issue - Therefore he executed a Will in bequeathing his half share in plaint schedule properties in favour of father of plaintiff in being his sister s son - Pursuant to execution of Will entries in revenue records were also made treating said and father of defendant as joint possessors - After death of defendants became joint owners of plaint schedule properties having equal shares - Defendant went to house of Late as his - There was no partition but for their convenience sake they were cultivating separate piece of lands - While so defendant filed a suit for injunction against father of plaintiff her husband in respect of plaint schedule properties in obtained ex parte injunction - Said suit was initially decreed by Munsif Magistrate granting an injunction but refusing to grant relief of rectification of entries in revenue records in view of pendency of suit and writ questioning order - On appeal in district Munsif s judgment was reversed - In Second Appeal to High Court High court remanded matter against to District Judge s Court for disposing of matter in light of observations made by High court - After remand was tried along with - Since appeal filed by defendants was allowed and plaintiff s suit in were dismissed suit was decreed granting injunction and directing rectification of entries in revenue records - Whether document propounded is proved to be last Will and testament of departed testator - Whether they are Wills or other instruments - Whether execution of Will is surrounded by suspicious circumstances or not - Whether it was Jagirdar himself or Jagirdar s munshi says that was an illiterate - Held, Court is dealing with a testamentary casewhere there is a large and consistent body of testimony evidencing signing and attestation of Will but where it is suggested that there are circumstances which raise a suspicion and make it impossible that Will could have been executed correct line of approach is to see that improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to if it does not altogether constitute an impossibility - These suspicious circumstances surrounding execution of Will create a genuine doubt whether Will was truly executed by and even if he signed whether he signed knowing contents with an intention to bequeath his half share in favour of and that he was in fit state of mind to so bequeath at relevant time -" Judge that plaintiffs failed to provethat Will was genuine on account of suspicious circumstances Will cannot be to be a genuine one and therefore plaintiffs claiming properties under Will are not entitled for partition - In appeal defendants had given up contention that executant of Will was of unsound mind though there was a plea in Written Statement and no evidence was adduced - Above Couirt of view that so-called suspicious circumstances are not suspicious circumstances and Judge is not correct in law in holding that Will was not executed by - Of Will create a genuine doubt whether Will was truly executed by and even if he signed whether he signed knowing contents with an intention to bequeath his half share in favour of and that he was in fit state of mind to so bequeath at relevant time - Appeals Allowed
( 1 ) THESE three Second Appeals are disposed of by a common judgment as they arise out of a common judgment and the parties are same.
( 2 ) THE subject matter of the three suits is the land admeasuring 1 acre 3 guntas in Sy. No. 143,12 guntas in Sy. No. 144,2 acres 11 guntas in Sy. No. 145, 4 guntas in Sy,no. 146,1 acre" 10 guntas in Sy. No. 147,1 acre 27 guntas in Sy. No. 155,1 acre 30 guntas in Sy. No. 249,3 acres 34 guntas in Sy. No. 282 and 9 guntas in Sy. No. 372 in all admeasuring 13 acres 31 guntas of Nizampet village of Qutubullapur Mandal, Ranga Reddy district.
( 3 ) THE plaintiffs in O. S. No. 136/87 are the appellants in all the three Secondappeals. The plaintiffs filed O. S. No. 136/87 for partition and separate possession of half share of the plaint schedule properties. The suit was decreed against which A. S. No. 73/94 was filed which was allowed. Aggrieved by the same, the plaintiffs filed S. A. No. 654/97. The plaintiffs in O. S. No. 136/87 also filed O. S. No. 58/89 for injunction restraining the defendants from alienating the plaint schedule properties. The District Munsiff decreed the suit against which A. S. 13/95 was filed. Since A. S. No. 73/94 was allowed, the Principal district Judge allowed A. S. No. 13/95 also. Aggrievedby the same, the plaintiffs filed S. A. No. 666/97.
( 4 ) THE defendants filed O. S. No. 177/80 (renumbered as O. S. No. 90/81) against the plaintiffs for injunction and for rectification of entries in the revenue records for the years 1974-86 relating to the plaint schedule properties by deleting the name of Venkaiah and entering the name of Laxmamma. The said suit was initially decreed by the Munsif Magistrate, Medchal granting an injunction, but refusing to grant relief of rectification of entries in the revenue records in view of the pendency of the suit O. S. No. 136/87 and writ questioning DRO s order dated 22-2-1988. On appeal in A. S. No. 16/90, the district Munsif s judgment was reversed. In Second Appeal to the High Court, the Highcourt remanded the matter against to the Addl. District Judge s Court for disposing of the matter in the light of the observations made by the High court. After remand, A. S. No. 16/90 was tried along with A. S. 73/94 and A. S. No. 13/95. Since the appeal filed by the defendants was allowed and the plaintiff s suit in O. S. No. 136/87 and O. S. No. 58/89 were dismissed, the suit o. S. No. 90 of 1981 was decreed granting injunction and directing rectification of entries in the revenue records.
( 5 ) BEFORE referring to the averments in the plaint, it is necessary to refer to the genealogy of the plaintiffs and the defendants. The original owner of the plaint schedule properties is one Lingaiah, He had two sons and one daughter, viz. , Laxmaiah/ Balaraj and Balamma. Laxmaiah married one lachamma and they had a daughter Laxmamma who is the first defendant in O. S. No. 136/87, O. S. 58/89 and plaintiff in O. S. 177/80. Balraj had no issue. Balamma had two sons by name Venkaiah and Jangaiah. The 1st defendant laxmamma, daughter of Laxmaiah/ was married to Jangaiah/ son of Balamma. Venkaiah, brother of Jangaiah had three wives. Ramesh is the son of the said venkaiah. Balraj died in 1960. Laxmaiah died in 1974 and Venkaiah died in 1982. Ramesh, his mother and his step mother are the plaintiffs in O. S. No. 136/87 and O. S. No. 58/89. Laxmamma/ her father Laxmaiah and mother late Lachamma are the defendants in both the suits. The L. Rs. of Venkaiah were added as parties as Defendants 1 to 4 in O. S. No. 136/87. In O. S. No. 90/81 Laxmamma and her mother are the plaintiffs while Venkaiah/ his brother Jangaiah, Ramesh and his mother Indramma besides defendants 3 to 6 were the defendants. The fight is between the daughter of Lingaiah s son and son of Lingaiah s daughter.
( 6 ) THE facts in brief as stated in O. S. No. 136/87 which is a partition suit are referred hereunder as the other suits relate to the consequential reliefs, lingaiah died
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