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2007 Supreme(AP) 692
Andhra Pradesh High Court
NEMANI RAJAMANI - Appellant
Versus
NEMANI SURYA KANTHAM - Respondent
Decided On : 07/19/2007
Advocates Appeared :
C.C.S.SASTRY, M.V.SURESH
Headnote:
Civil Procedure Code, 1908 – Section 35-A – Hindu Succession Act, 1956 – Section 34 (1) – Appeal - Suit for partition – Dismissal of - Aappellants herein, as plaintiffs in the said suit, instituted the suit for partition of the plaint schedule properties into ten equal shares and allotment of four such shares –Case of the plaintiff that plaint A to D schedule properties are the self- acquired properties of the said and since he died intestate leaving the said properties, these parties are entitled to their respective shares –Held, It is pertinent to note that this witness also deposed relating to the execution of general Power of Attorney-Ex. B5 in favour of his eldest son and this document also was attested by this witness and the other attest or and clearly this witness deposed relating to the state of mind of the deceased simhachalapathi Rao and also the due execution of both light of these circumstances, the trial Court recorded findings, no doubt not in detail, to arrive at a conclusion that Ex. B4 is true, valid and binding surrounding suspicious circumstances had been pointed out to the effect that the other natural heirs also had been excluded. It may be. But it is pertinent to note that on the self-same day for the management of the properties, Ex. B5 was executed. Even otherwise, this aspect need not detain this Court any longer since it is the will and wish of the testator and if the testator had chosen to dispose of his properties in a particular fashion by way of a testament and if the due execution of the same had been proved in accordance with law, the other aspects may fall into insignificance. No doubt reliance was placed wherein it was held by the Apex Court that the mere fact that the natural heirs were excluded and the legally wedded wife was given a lesser share would not be a suspicious circumstance in the light of the findings recorded in relation to and the marital tie in between and the deceased this question need not be dealt with any further in elaboration and in view of the same findings recorded by the trial Court are hereby confirmed – Appeal being devoid of merit the same shall stand dismissed.
( 2 ) THE appellants herein, as plaintiffs in the said suit, instituted the suit for partition of the plaint schedule properties into ten equal shares and allotment of four such shares to them taking good and bad qualities into consideration and for other appropriate reliefs.
( 3 ) THE stand taken by the first plaintiff-first appellant is that she is the second wife of late Nemani Simhachalapathi Rao, a registered Medical practitioner, Rajahmandry, and plaintiffs 2 and 3 are the sons and the 4th plaintiff is the daughter of the said late Simhachalapathi Rao born through his second wife. It is the specific case of the plaintiffs that the 1st defendant, the 1st respondent in the appeal, is the first wife of the said Nemani simhachalapathi Rao and respondents 2 to 4, defendants 2 to 4, are the sons, respondents 5 and 6, defendants 5 and 6, are the daughters of the said late simhachalapathi Rao through his wife -1st respondent, 1st defendant. It is also the case of the plaintiff that plaint A to D schedule properties are the self- acquired properties of the said Nemani Simhachalapathi Rao and since he died intestate leaving the said properties, these parties are entitled to their respective shares.
( 4 ) THE suit was resisted by the contesting respondents-defendants by filing a written statement in detail denying the alleged matrimonial relationship between simhachalapathi Rao and the first plaintiff and also further denying that the said Simhachalapathi Rao died intestate and specific stand was taken that he died testate by executing a registered Will on 25. 4. 1983 and his date of death was 17. 6. 1983. In the Rejoinder filed no doubt slightly a different stand had been taken and on the strength of the respective pleadings of the parties, the trial Court having settled the issues, recorded the evidence of PWs. 1 to 6, dws. 1 to 3, marked Exs. A1 to A27 and Exs. B1 to B6 and ultimately came to the conclusion that there is no acceptable evidence to prove the marital tie between the deceased Simhachalapathi Rao and the first plaintiff and further came to the conclusion that the stand taken by the plaintiffs that Simhachalapathi Rao died intestate is not the correct stand, but Simhachalapathi Rao died testate and in view of the same, the plaintiffs are not entitled to any share whatsoever in the plaint schedule properties. Incidentally relating to certain items, the nature of the properties and the other aspects also had been discussed. Aggrieved by the same, the present appeal had been preferred. CONTENTIONS OF SRI C. C. S. SASTRY
( 5 ) SRI C. C. S. Sastry, learned counsel representing the appellants-plaintiffs would submit that though the Will-Ex. B4 is said to be a registered Will executed by Nemani Simhachalapathi Rao, there are several suspicious circumstances surrounding the Will and these suspicious circumstances had not been taken note of and discussed by the trial Court in a proper perspective. The counsel also pointed out to the evidence of DWs. 2 and 3 apart from the evidence of DW. 1 in relation to Ex. B4 and would submit that the said evidence is not sufficient to duly prove the Will-Ex. B4 and hence the findings recorded by the trial Court cannot be sustained. The counsel also pointed out that the state of mind of the testator also had not been taken into consideration. Further, the learned counsel would maintain that when clear and positive evidence is there relating to the marriage of the first plaintiff with the said Simhachalapathi Rao well supported by the evidence of PWs. 2 to 6 and also Exs. A1 to A27, to doubt the very marital tie between those parties, definitely cannot be sustained. The counsel also would maintain that several certificates re
