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Andhra Pradesh High Court
GADIYARAM PADMAVATHI - Appellant
Versus
ADDEPALLI HANUMANTHA RAO - Respondent
Decided On : 04/27/2007
Advocates Appeared :
Addepalli Suryanarayana, M.CHANDRASEKHAR RAO
Code of Civil Procedure, 1908 – Order VII, 7 – Rule 11, 9 – Appeal - Rejection of the plaint First plaintiff is the wife and are the children of late who died in defendants are the daughters of late Venkata Ramaswamy who died in the. Defendant No. 4 is the husband are the children of late Vedavathi who died Arundhati eldest daughter of GVN Murthy, died leaving no children. GVN Murthy possessed acs land, houses and house-sites in Prakasam District. He married one and had two sons and two daughters, which was referred to above sons, filed of respectively, on the file of the subordinate Judge, Ongole for partition of the joint family properties, which were ultimately ended in compromise, wherein gvn Murthy gave Acs land to each of the sons, under a registered settlement deed keeping land to himself besides two houses and house-sites gave Acs of land each to his daughters. He also gave Acs land in favour of his concubine one Murthy seems to have executed a registered General Power of attorney (for brevity gpa) in favour of one Bar, who said to have executed sale deeds as well as agreements of sale in favour of third parties realizing the fraud played by the said Venkata Subbaiah, a Pleaders Clerk GVN Murthy, cancelled the GPA on the file of the Senior Civil judge, Ongole, for cancellation of various sale deeds and agreements of sale executed by Venkata Subbaiah and for possession and other reliefs –Held, it is to be seen that in the order in the said CMP passed by the Division Bench of this Court, the learned Judges had categorically observed that it has to be taken or presumed that the will executed in favour of late Vedavathi by her father late GVN murthy was true, however, observing that any proceeding against defendant No. 4 in respect of the suit schedule properties be disposed of uninfluenced by any of the observations made therein that is why court are not delve into the observations or findings, as the case may be, made by the Division Bench of this court in the order in the said C. M. P. court care taking only the facts that were revealed and were recorded in the said order. Court are making it clear that none of the observations made by the learned Judges in the said order are being taken into account having kept quiet either by the parents of the plaintiffs or the plaintiffs or both put together having maintained silence regarding the validity or otherwise of the Will is now not open for the plaintiffs to reagitate that issue in extenso in the plaint, and having raised that issue and highlighted the same with all the more seriousness in the plaint, no relief has been sought regarding the said Will only relief sought, as already noticed, is regarding the partition the relief of partition as prayed for is granted in favour of the plaintiffs, it is capable of disturbing the entire position prevailing as on today and which is likely to end by soon – Appeal suit is dismissed.
( 1 ) HEARD both sides.
( 2 ) THIS appeal is preferred by the unsuccessful plaintiffs against the rejection of the plaint under Order VII Rule 11 (a)and (d) of the Code of Civil Procedure, 1908 (for brevity 'the CPC') by the learned ii Additional District and Sessions Judge (Fast Tract Court), Ongole, Prakasam district in O. S. No. 3 of 2001.
( 3 ) FOR convenience, the parties herein are referred to as arrayed in the suit.
( 4 ) THE case of the plaintiffs, in brief, is that one Gadiyaram Venkata Narasimha murthy (for brevity 'gvn Murthy') had two sons and two daughters viz. , Sri Venkata ramaswamy, Sri Kalidas, Smt. Ahobila arundhati and Smt. Addepalli Vedavathi. The first plaintiff is the wife and plaintiffs 2 to 4 are the children of late Kalidas who died in the year 1992. Defendants 1 to 3 are the daughters of late Venkata Ramaswamy who died in the year 1996. Defendant No. 4 is the husband and defendants 5 to 10 are the children of late Vedavathi who died in the year 1986. Arundhati, the eldest daughter of GVN Murthy, died on 13-5-1975, leaving no children. GVN Murthy possessed acs. 300-00 of land, houses and house-sites in Prakasam District. He married one ramalakshmamma and had two sons and two daughters, which was referred to above. Venkata Ramaswamy and Kalidas, the sons, filed O. S. Nos. 24 of 1956 and 27 of 1959, respectively, on the file of the subordinate Judge, Ongole for partition of the joint family properties, which were ultimately ended in compromise, wherein gvn Murthy gave Acs. 100-00 of land to each of the sons, under a registered settlement deed, dated 4-2-1959, keeping acs. 80-00 of land to himself besides two houses and house-sites. He gave Acs. 40-00 of land each to his daughters Arundhati and Vedavathi. He also gave Acs. 58-00 of land in favour of his concubine one m. Kamamma. GVN Murthy seems to have executed a registered General Power of attorney (for brevity 'gpa') in favour of one Vavilala Venkata Subbaiah, Clerk of sri Nayani Satyanarayana Rao, Advocate of Ongole Bar, who said to have executed sale deeds as well as agreements of sale in favour of third parties. Later, realizing the fraud played by the said Venkata Subbaiah, a Pleader's Clerk, GVN Murthy, cancelled the GPA on 17-4-1971 and filed O. S. No. 31 of 1972 on the file of the Senior Civil judge, Ongole, for cancellation of various sale deeds and agreements of sale executed by Venkata Subbaiah and for possession and other reliefs. While the above suit was pending, GVN Murthy died on 25-3-1978. It was further alleged in the plaint that gvn Murthy died intestate and on his death, the widow, two sons and the second daughter Vedavathi are entitled to the suit schedule properties. The widow and sons of GVN Murthy could not take steps as they were not aware of the proceedings in O. S. No. 31 of 1972. When they made enquiries, they learnt that Telidevulapalli sankarayya and Bommala Venkataswamy came on record as plaintiffs 2 and 3 as legal representatives of late GVN Murthy under a registered Will, dated 14-2-1975, alleged to have been executed by the said gvn Murthy. Thereupon, defendant No. 4, the husband of Vedavathi, filed I. A. No. 512 of 1980 as GPA Agent of his wife, praying to delete the names of the said Sankarayya and Venkataswamy and substitute the name of his wife Addepalli Vedavathi as second plaintiff on the ground that GVN murthy executed an unregistered Will, dated 14-5-1977 in her favour. When the said application was dismissed, he preferred c. R. P. No. 4238 of 1980 before this Court and this Court allowed the said C. R. P. , by order dated 22-12-1982, directing the trial court to restore the L. R. application I. A. No. 512 of 1980 to file and to dispose of the same on merits. On remand, Sankarayya and Venkataswamy made a false contest and get the application allowed. Civil revision petition on the file of this Court that preferred against the said order, dated 2-8-1985, in i. A. No. 512 of 1980, by Sankaray
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