K.Vittal Rao and Another Vs. S.K.Laxmi Bai and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1030123
CourtAndhra Pradesh High Court
Decided OnNov-26-2012
JudgeHON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
AppellantK.Vittal Rao and Another
RespondentS.K.Laxmi Bai and Others
Excerpt:
hon'ble sri justice samudrala govindarajulu second appeal no.532 o”26. 11.2012 k.vittal rao and another s.k.laxmi bai and others counsel for the appellants: sri vijay ashrit counsel for the respondents: sri m.m.goud : : ?cases referred: judgment the defendants 1 and 2 who are husband and wife are the appellants. the respondents 1 to 4/plaintiffs are legal heirs of late jagannatham who is brother of the first defendant. jagannatham, the first defendant and padmarao were sons of late venkat swamy. subject matter of the suit is house site at malkajgiri of ranga reddy district. the plaintiffs filed the suit in the trial court for partition of the said site between the plaintiffs and the 1st defendant and for allotment of one such share to the plaintiffs. incidentally, the plaintiffs also sought for cancellation of ex.a.3 will dated 15.05.1971 said to have been executed by late venkat swamy and ex.a.4 gift deed dated 27.11.1999 executed by the 1st defendant in favour of the 2nd defendant and ex.a.5 sale agreement-cum-general power of attorney dated 20.05.2002 executed in favour of 3rd defendant. the defendants 1 and 2 opposed the suit mainly on the strength of ex.b.13 will said to have been executed by late venkat swamy in favour of the 1st defendant in respect of the plaint schedule property. both the courts below considered the material on record and came to the conclusion that ex.b.13 will is not true; and consequently granted preliminary decree for partition. 2. in this second appeal, the appellants' counsel contended that extraneous reasons were relied upon by the courts below in rejecting truth of ex.b.13 will and proper grounds were not taken into consideration to uphold ex.b.13 will and that the said decision of the courts below is contrary to law. 3. entire decision in the present suit proceedings depend on truth of ex.b.13 will propounded by the defendants. truth or otherwise of the will is purely a question of fact based on assessment of evidence and circumstances together with probabilities of the case. it is purely a question of fact. be that as it may, this court is of the opinion that the courts below considered the entire material on record in right direction and came to proper conclusion against ex.b.13 will. 4. ex.b.13 is an unregistered will. it is typed on white paper. name of the person who typed the same is not mentioned. name of the person who drafted the same is not mentioned. out of the two attestors in ex.b.13, one of the attestors is examined as d.w.5. the other attestor by name rambabu is stated to be no more. the said rambabu is no other than brother of the 2nd defendant and brother-in-law of the 1st defendant. late venkat swamy was having two properties (i.e.) the plaint schedule site at malkajgiri and another house at secunderabad. even though in ex.b.13 will venkat swamy described himself as a person suffering from some ailment, he did not prefer to execute the will in respect of both of his properties. ex.b.13 is only in respect of the plaint schedule property and not in respect of the house property at secunderabad. in case, a person intended to make arrangement in relation to his properties after his death, that person will not in the natural course make arrangement with reference to only part of his estate and not whole of his estate. ex.a.9 is partition deed entered into between the first defendant, late jagannatham and their mother, subsequent to death of venkat swamy. ex.a9 related to house property at secunderabad. ex.a.9 partition deed unequivocally resites that venkat swamy died intestate. it is an admission by all the family members including the 1st defendant that venkat swamy died without executing any will. it cannot be taken as a recital with reference to the property that was being divided under the partition deed. under ex.b.13, the entire plaint schedule site was stated to have been bequeathed to the 1st defendant on the ground that he was obedient to venkat swamy. it is not stated in ex.b.13 that the other brothers including jagannatham were not obedient or were revolting against venkat swamy. by then, padma rao was alive and was suffering from cancer. he died subsequent to the date of ex.b.13 and prior to the date of ex.a.9. when one of his sons was suffering from serious illness, no provision was made to padma rao. similarly, no provision was made to his own wife who is mother of 3 children in ex.b.13 will. instead venkat swamy is stated to have preferred the 1st defendant to bequeath the entire plaint schedule property to the 1st defendant. there were no compelling reasons for venkat swamy to choose only the 1st defendant as the beneficiary of the plaint schedule property under the will. in those circumstances, the conclusion is to the inevitable affect that the bequest was most unnatural. it is elicited in cross-examination of d.w.1 that there is also a factual mistake in ex.b.13 to the effect that the 1st defendant was described as a person working in apsrtc, whereas by then the 1st defendant was working in madurai motors. 5. it is contended by the appellants' counsel that the courts below failed to take note of the fact that if really venkat swamy died intestate, the brothers and mother would not have failed to include the suit property also as one of the properties available for partition. while considering truth or otherwise of ex.b.13 will, the court has to judge the same from evidence and probabilities while sitting in the same armed chair of the deceased. the circumstances which were prevailing subsequently after death of venkat swamy at the time of ex.a.9 partition deed, cannot be relevant to decide truth or otherwise of ex.b.13 will. in my opinion, the courts below have properly assessed the entire material on record and came to a right conclusion in favour of the plaintiffs and against ex.b.13 will. i find no error muchless legal error in the decision arrived at by the courts below. 6. in the result, the second appeal is dismissed with costs. ____________________________ samudrala govindarajulu,j dt.26 november, 2012
Judgment:

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.532 o”

26. 11.2012 K.Vittal Rao and another S.K.Laxmi Bai and others Counsel for the appellants: Sri Vijay Ashrit Counsel for the Respondents: Sri M.M.Goud : : ?Cases referred: JUDGMENT

The defendants 1 and 2 who are husband and wife are the appellants.

The respondents 1 to 4/plaintiffs are legal heirs of late Jagannatham who is brother of the first defendant.

Jagannatham, the first defendant and Padmarao were sons of late Venkat Swamy.

Subject matter of the suit is house site at Malkajgiri of Ranga Reddy District.

The plaintiffs filed the suit in the trial Court for partition of the said site between the plaintiffs and the 1st defendant and for allotment of one such share to the plaintiffs.

Incidentally, the plaintiffs also sought for cancellation of Ex.A.3 Will dated 15.05.1971 said to have been executed by late Venkat Swamy and Ex.A.4 gift deed dated 27.11.1999 executed by the 1st defendant in favour of the 2nd defendant and Ex.A.5 sale agreement-cum-general power of attorney dated 20.05.2002 executed in favour of 3rd defendant.

The defendants 1 and 2 opposed the suit mainly on the strength of Ex.B.13 Will said to have been executed by late Venkat Swamy in favour of the 1st defendant in respect of the plaint schedule property.

Both the Courts below considered the material on record and came to the conclusion that Ex.B.13 Will is not true; and consequently granted preliminary decree for partition.

2.

In this second appeal, the appellants' counsel contended that extraneous reasons were relied upon by the Courts below in rejecting truth of Ex.B.13 Will and proper grounds were not taken into consideration to uphold Ex.B.13 Will and that the said decision of the Courts below is contrary to law.

3.

Entire decision in the present suit proceedings depend on truth of Ex.B.13 Will propounded by the defendants.

Truth or otherwise of the Will is purely a question of fact based on assessment of evidence and circumstances together with probabilities of the case.

It is purely a question of fact.

Be that as it may, this Court is of the opinion that the Courts below considered the entire material on record in right direction and came to proper conclusion against Ex.B.13 Will.

4.

Ex.B.13 is an unregistered Will.

It is typed on white paper.

Name of the person who typed the same is not mentioned.

Name of the person who drafted the same is not mentioned.

Out of the two attestors in Ex.B.13, one of the attestors is examined as D.W.5.

The other attestor by name Rambabu is stated to be no more.

The said Rambabu is no other than brother of the 2nd defendant and brother-in-law of the 1st defendant.

Late Venkat Swamy was having two properties (i.e.) the plaint schedule site at Malkajgiri and another house at Secunderabad.

Even though in Ex.B.13 Will Venkat Swamy described himself as a person suffering from some ailment, he did not prefer to execute the Will in respect of both of his properties.

Ex.B.13 is only in respect of the plaint schedule property and not in respect of the house property at Secunderabad.

In case, a person intended to make arrangement in relation to his properties after his death, that person will not in the natural course make arrangement with reference to only part of his estate and not whole of his estate.

Ex.A.9 is partition deed entered into between the first defendant, late Jagannatham and their mother, subsequent to death of Venkat Swamy.

Ex.A9 related to house property at Secunderabad.

Ex.A.9 partition deed unequivocally resites that Venkat Swamy died intestate.

It is an admission by all the family members including the 1st defendant that Venkat Swamy died without executing any Will.

It cannot be taken as a recital with reference to the property that was being divided under the partition deed.

Under Ex.B.13, the entire plaint schedule site was stated to have been bequeathed to the 1st defendant on the ground that he was obedient to Venkat Swamy.

It is not stated in Ex.B.13 that the other brothers including Jagannatham were not obedient or were revolting against Venkat Swamy.

By then, Padma Rao was alive and was suffering from cancer.

He died subsequent to the date of Ex.B.13 and prior to the date of Ex.A.9.

When one of his sons was suffering from serious illness, no provision was made to Padma Rao.

Similarly, no provision was made to his own wife who is mother of 3 children in Ex.B.13 Will.

Instead Venkat Swamy is stated to have preferred the 1st defendant to bequeath the entire plaint schedule property to the 1st defendant.

There were no compelling reasons for Venkat Swamy to choose only the 1st defendant as the beneficiary of the plaint schedule property under the Will.

In those circumstances, the conclusion is to the inevitable affect that the bequest was most unnatural.

It is elicited in cross-examination of D.W.1 that there is also a factual mistake in Ex.B.13 to the effect that the 1st defendant was described as a person working in APSRTC, whereas by then the 1st defendant was working in Madurai Motors.

5.

It is contended by the appellants' counsel that the Courts below failed to take note of the fact that if really Venkat Swamy died intestate, the brothers and mother would not have failed to include the suit property also as one of the properties available for partition.

While considering truth or otherwise of Ex.B.13 Will, the Court has to judge the same from evidence and probabilities while sitting in the same armed chair of the deceased.

The circumstances which were prevailing subsequently after death of Venkat Swamy at the time of Ex.A.9 partition deed, cannot be relevant to decide truth or otherwise of Ex.B.13 Will.

In my opinion, the Courts below have properly assessed the entire material on record and came to a right conclusion in favour of the plaintiffs and against Ex.B.13 Will.

I find no error muchless legal error in the decision arrived at by the Courts below.

6.

In the result, the second appeal is dismissed with costs.

____________________________ SAMUDRALA GOVINDARAJULU,J Dt.26 November, 2012