The court upheld the validity of an undated Will which excluded the plaintiff from the property, ruling that her delay and knowledge of the Will barred her claim to partition.

JUDGMENT :

M.G. Priyadarsini, J.

Aggrieved by the Judgment and Decree dated 22.11.2018 (hereinafter will be referred as ‘impugned Judgment’) passed in O.S.No.835 of 2012 on the file of learned II Additional Chief Judge, City Civil Court at Hyderabad (hereinafter will be referred as ‘Trial Court’), the sole plaintiff preferred the present Appeal to set aside the impugned Judgment and Decree.

2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the Trial Court.

3. The brief facts of the case are that the sole appellant herein i.e., plaintiff, who is the daughter Jaligama Balaiah, filed O.S.No.835 of 2012 against her brothers, sister and their family members, who are defendant Nos.1 to 5 for partition and separate possession in respect of suit schedule property i.e., house bearing MCH No.3-6-369/A/22 admeasuring 773 square yards situated at Himayathnagar, Hyderabad.

4. The averments of plaint in brief are as under:

a) The plaintiff, defendant No.5 and defendant Nos.1 to 4 are daughters and sons of Late Jaligama Balaiah @ Balappa respectively. Late Jaligama Balaiah @ Balappa alleged to have purchased land admeasuring 948 square yards through three sale deeds and later sold a piece of land admeasuring 185 square yards to Sri Anajaiah and retained 773 square yards, which is the suit schedule property. The father of plaintiff and defendants also purchased a mulgi bearing No.5-8-563 admeasuring 98 square yards situated at Top Khana Road, Nisan Shahi Raod, Hyderabad and gifted the same to defendant Nos.1 to 4. Late Jaligama Balaiah @ Balappa purchased open land in the name of his wife admeasuring 500 square yards at Hayathnagar, Ranga Reddy District and the same was partitioned among defendant Nos.1 to 4 by paying Rs.2,00,000/- to plaintiff in the year 2005.

b) After the death of Jaligama Balaiah @ Balappa, the plaintiff and defendants became legal heirs and successors to the suit schedule property. When the plaintiff visited the suit schedule property on 21.10.2012 on the occasion of Dussara festival, she found that defendant Nos.1 to 4 have constructed multi storied building in the suit schedule property, which was not partitioned after the death of their father. On enquiry, defendant Nos.1 to 4 stated that they are intending to sell the flats to the intending purchasers. The plaintiff has 1/6th share in the suit schedule property. Since the suit schedule property is not yet partitioned by metes and bounds among the legal heirs of Jaligama Balaiah @ Balappa, the plaintiff prayed for partition of the suit schedule property into six equal shares and thereby allot one such share to her.

5. In reply to the above plaint averments, the defendant Nos.1 to 4 filed written statement, the brief averments of which are as under:

a) During the life time of Jaligama Balaiah @ Balappa an undated Will was executed in the year 1997 bequeathing the suit schedule property and open land in favour of defendant Nos.1 to 4. Jaligama Balaiah @ Balappa died on 25.03.1998 and his wife Smt. J. Maniamma died intestate on 28.05.1989. By virtue of Will Deed, defendant Nos.1 to 4 became absolute owners of the suit schedule. Defendant Nos.1 to 4 entered into a development agreement cum general power of attorney for construction of flats in the suit schedule property on 29.08.2005 through a registered document bearing No.3456/2005.

b) Jaligama Balaiah @ Balappa and his wife Maniamma during their life time performed the marriages of plaintiff and defendant No.5 by giving huge gold jewelries, cash and gifts etc. The plaintiff and d