Andhra Pradesh High Court
Judges : Y.V.NARAYANA
Suram Indira Devi - Appellant
Versus
Suram Bhoodevi - Respondent
Decided On : 08-17-99
Will - Scribe not examined - Attestors are admittedly interested persons - Will written on stamp paper furnishing details of all survey numbers with particulars of extents and assessments for each survey number running into four pages would throw suspicion about execution of Will - Will need not be written on stamp paper - In the instant case propounder himself took prominent role in execution of Will and received substantial benefit which leads to suspicious circumstance - Will executed by testator just before his death reflects true mind of testator - In the instant case contents of Will conferring benefit on minor plaintiff throws any amount of suspicion - No provision in the Will to provide residence to wife - Anxiety on the part of loving husband would be to provide residence for his widow after his death which is totally absent in the Will - Testator gave away to all movables to plaintiff which is not natural when his wife was expected to survive him - Disposition made in the Will appears to be unnatural, improbable and unfair in the relevant circumstances - Contents of Will are not result of free will and mind of testator - Both Will and adoption setup by plaintiff can not be accepted - Dismissal of suit by trial Court - Justified.
( 1 ) THE unsuccessful plaintiff in the suit is the appellant. The plaintiff instituted OS No. 5 of 1977 on the file of the District Judge, Wrangle for partition of plaint a schedule properties into four equal shares and for allotment of three such shares to the plaintiff.
( 2 ) FOR the sake of convenience the parties to this appeal will be referred to in accordance with their ranking in the suit.
( 3 ) THE minor plaintiff Suram Indira Devi represented by their next friend and father Suram Pratap Reddy has instituted the present suit for partition of her 3/4th share in the plaint a schedule properties and also seeking an injunction against defendants 2 and 3 from in any manner interfering with her right in the properties since she was adopted by late Suram Kanakaiah who owned plaint a to c schedule properties and that by virtue of the adoption that took place on 21-4-1969 and also by virtue of Ex. A. 20 (will) executed by late Kanakaiah on 17-3-1971 she became entitled to 3/4th share in the plaint a schedule properties and all the movables in plaint b and c schedule properties and that the 1st defendant became entitled to life interest in the remaining 1/4th share in the plaint a schedule properties with the vested remainder in favour of the 3rd defendant. The plaintiff subsequently impleaded defendants 4 to 11 on the ground that they obtained sale deeds and agreements from the 1st defendant in respect of various items of properties covered by the plaint schedule properties. Defendants 12 to 18 have been impleaded as legal representatives of the 4th defendant who died during the pendency of the suit and defendants 19 and 20 have later been added as legal representatives of the 1st defendant who died during the pendency of the suit. It is the case of the plaintiff that after the death of Suram Kanakaiah, his wife Suram Bhudevi, the 1st defendant, on the evil advice of 2nd defendant and her brother, began acting adversely to the interests of the plaintiff and colluded with the 2nd defendant. She filed OS No. 80 of 1971 on the file of the Subordinate Judge. Warangal, claiming partition of the properties between her and 3rd defendant alleging that the 3rd defendant was taken in adoption by late Suram Kanakaiah on 29-4-1964 although there was no such adoption. Ultimately the said suit ended in a collusive compromise which did not affect the rights of the plaintiff. In order to protect the legitimate interests of the plaintiff she sought to be impleaded herself as defendant in the said suit but the trial Court dismissed the said application and the said order was confirmed by the High Court in CRP 112 of 1972. These proceedings would not in any manner affect the rights of the plaintiff and hence this suit for partition has been filed. Filing of the present suit has become inevitable since the 1st defendant has been adopting hostile attitude and has not been co-operating with the minor plaintiff in seeking proper and equitable division of properties.
( 4 ) DEFENDANTS 1 to 3 filed written statement resisting the suit. The averments in the written statement are as set out hereunder:- The averment that the plaintiff was adopted by Kanakaiah is not correct and that the printed invitation card produced or filed is a fabricated document and late Kanakaiah could not have adopted the plaintiff with the intention of performing her marriage with the 3rd defendant who was his adopted son as they would evidently be within the prohibited degrees of marriage. Late Kanakaiah neither brought up nor adopted the plaintiff. The 3rd defendant was adopted by Kanakaiah on 29-4-1964 and later a registered adoption deed was executed by Kanakaiah on 15-5-1970 which was registered in the office of the Joint Sub-Registrar, Warangal. Neither the plaintiff nor anyone on her behalf, much less the next friend have been or are in possession of the properties left behind late Kanakaiah and all the properties of late Kanakaiah after
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