N. Srihari (D) Through LRS. & Ors Vs. N. Prakash
& Ors  Insc 212 (19 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NOS. 1420-1421 OF 2008 (Arising out of SLP (C) Nos. 17808-17809 of 2005)
WITHCIVIL APPEAL NOS. 1429,1422-1423,1424-1425,1426 & 1427-1428 OF 2008
(Arising out of SLP(C) Nos. 18481/2007, 24682-24683/2005, 26425-26426/2005,
26429/2005 & 23029-23030/2007 P. Sathasivam, J.
appellants herein are the unsuccessful defendants in O.S. No.9 of 1993 on the
file of the trial Court as well as the High Court. The LRs of the deceased
parties as well as the purchasers and third parties who were not parties before
the trial Court and the High Court also filed appeals. The respective
claim/stand of the parties is being explained hereunder. In order to understand
their claim, entitlement etc., let us refer to the geneology table of the
family of N. Saya Goud.
OF N. SAYA GOUD
(wife) (Died in 1956) (Died on 23.4.1984)
Goud (son) Died in 1981
6(i)(a) Sulochana (Wife) (died)
Def.3 Def.4 Def.5 Def.6 | (died) (died) |
Lrs. Lrs.1(i) to (vi) 10(i) to (iii)
Plaintiff-1 Plaintiff-2 Plaintiff-3 Plaintiff-4 Plaintiff-5 Plaintif-6 Died
Lrs. 6(i) to (iii) 3) One Shri N. Saya Goud had a wife by name, Smt. Chandramma
and two sons, namely, Balarajiah Goud and Sathaiah Goud. Balarajiah Goud had
two wives, Pentamma (first wife) and Kausalya (second wife), five sons and
three daughters through his first wife and the second wife was issueless. Sathaiah
Goud had a wife, Sulochana and six sons.
2.1.1956, Shri Saya Goud executed a Will under which he mentioned that the
lands bearing Survey Nos. 284, 285, 290, 292 and 293 admeasuring 19 acres and
15 guntas situated in Lothukanta, Alwal, Ranga Reddy District were in his
protected tenancy and that the other movable properties mentioned therein, were
acquired by himself and his wife Chandramma and bequeathed all the movable and
immovable properties jointly held by him and his wife in favour of his wife, Smt.
Chandramma and his eldest daughter-in-law Pentamma. The beneficiaries of the
Will were to enjoy the properties jointly.
was given life time interest under the said will. Sathaiah Goud, second son of Shri
Saya Goud, was an attestator of the Will dated 2.1.1956 executed by his father.
the demise of Shri Saya Goud, the pattadars of the land for which shri Saya Goud
acquired the right of protected tenancy had transferred their pattadars right
and interest in favour of Smt. Chandramma and Smt. Pentamma jointly as the
heirs of Shri Saya Goud upon payment of the required consideration in respect
of the land of an extent of 19 acres 15 guntas and consequently the Deputy
District Collector passed an award dated 17.4.1956 in favour of Smt. Chandramma
and Smt. Pentamma as per his award No. T/85/1954. Thereafter in 1959, Smt. Chandramma
and Smt. Pentamma jointly purchased an extent of 1 acre 30 guntas of land,
therefore, their joint holding had risen to 21 acres 05 guntas. On 6.3.1969,
one Registered Settlement Deed was executed by Smt. Chandramma transferring an
extent of 2982 sq. yards of land from the joint holding in favour of Smt. Sulochana
and one Registered Release Deed transferring her undivided share in favour of Pentamma.
On the same day, Smt. Sulochana executed a registered Disclaimer Deed claiming
any right over the property that is vested with Smt. Pentamma and Smt. Chandramma.
In the year 1970, the second son of Shri Balarajiah Goud and Smt. Pentamma
pledged the documents concerning the houses and the land in an extent of
21acres with Andhra Bank and obtained loan for business purposes.
failure of payment of outstanding dues of the loan amount, the Andhra Bank
filed O.S. No. 403 of 1976 for recovery of the amount and thereby obtained a
decree in the year 1977 wherein both the registered Release Deed executed on
6.3.1969 and the Will of Shri Saya Goud dated 2.1.1956 were marked as exhibits.
In the year 1977, eldest son of Smt. Pentamma, Shri N. Srihari, filed a suit
for partition against the other defendants/petitioners herein and Smt. Chandramma.
year 1981, the suit for partition was compromised. Shri Balarajiah Goud expired
After the demise of Smt. Chandramma, i.e. on 23.4.1984, the sons of Shri Sathaiah
Goud claimed the entire share of Smt. Chandramma through a Will dated 28.9.1979
purported to have been executed in their favour which is supposed to have been
found in a box. They filed O.S. No. 456 of 1984 on the file of the Principal
Sub-Judge, Ranga Reddy District. In the year 1993, the said suit was
transferred to the District Judge, Ranga Reddy District and renumbered as O.S.
No.9 of 1993. By judgment and decree dated 8.9.1993, the District Judge allowed
the suit in favour of the plaintiffs/respondents herein and passed a decree in
their favour. Aggrieved by the judgment and decree passed by the learned
District Judge, the defendants/appellants herein preferred an appeal bearing
No. 78 of 1994 and CMP No. 17581 of 2001 before the High Court of Judicature
Andhra Pradesh at Hyderabad. By the impugned judgment dated
17.2.2005, the learned single Judge of the High Court dismissed the appeal and
ordered the Civil Miscellaneous Petition.
Aggrieved by the judgment in A. S. No. 78 of 1994, N. Srihari (since deceased),
N. Laxminarayana and N.
Nos. 2, 5 and 6) filed SLP (C) No. 17808 of 2005.
very same parties aggrieved by the decision in CMP No. 17581 of 2001 preferred
SLP (C) No. 17809 of 2005. While ordering notice in the above SLPs, this Court
passed an interim order to the effect that "final decree proceedings may
go on, but the final decree as such shall not be signed unless permitted by
on the said interim order, when the final decree proceedings were in progress
Ms. N. Anuradha, N. Saivenkataramana and B. Sai Nagraj, defendant Nos. 18-20
filed I.A. No. 2017 of 2006 under Section 151 CPC and requested the trial Court
not to proceed with the enquiry in relation to the suit schedule property on
the ground that the "Occupancy Rights Certificate" was issued in favour
of the first defendant in respect of the entire suit schedule property and that
the land covered by the provisions of Andhra Pradesh (Telangana) Area Abolition
of Enams Act, 1955 cannot constitute the subject-matter of a partition suit.
The trial Court dismissed the application by order dated 13.07.2006.
the said order, the petitioners filed CRP No. 3726 of 2006 before the High
Court. By order dated 30.08.2006, learned Single Judge of the High Court
confirming the order of the trial Court dismissed the revision. Against that
order of the High Court, the petitioners therein (defendant Nos. 18-20) filed
SLP (C) No. 18481 of 2007.
Against the judgment dated 17.02.2005 in A.S. No. 72 of 1994 and CMP No. 17581
of 2001 Mr. Sai Venkataramana, Ms. N. Anuradha and B. Sai Nagraj (appellant
Nos. 7, 6 and 8 in the High Court) preferred SLP (C) Nos. 24682 and 24683 of
Against the very same judgment dated 17.02.2005 in A.S. No. 78 of 1994 and CMP
No. 17581 of 2001 One Ramesh Chawla S/o Manohar not a party before the High
Court has filed SLP (C) No. 26425-26426.
Assailing the order in A.S.M.P.14246 of 2004 in A.S. No. 78/1994 filed for impleading
him as respondent No. 23 in A.S. 78 of 1994 which was dismissed by the High
Court on 17.02.2005 the said Ramesh Chawla a third party has filed SLP (C) No.
26429 of 2005.
Against the same judgment dated 17.02.2005 in A.A. No. 78 of 1994 in CMP No.
17581 of 2001 defendants 2, 4 to 6 and LRs of the third defendant filed SLP (C)
No. 23029-23030 of 2007.
heard Mr. Harish N. Salve, Mr. L.N. Rao, Mr. P.S. Mishra and Mr. Mukul Rohtagi,
learned senior counsel for the appellants and Mr. Dushyant A. Dave, Mr. Vishwanathan
Shetty and Mr. T.L. Vishwanatha Iyer, learned senior counsel for the contesting
Mr. Harish N. Salve, learned senior counsel appearing for the main appellants,
after taking us through the pleadings of all the parties, the judgment of the
trial Court and the High Court contended that in spite of the fact that the
plaintiffs themselves referred to the earlier Will dated 02.01.1956 executed by
Saya Goud, merely because the original of the same was not placed before the
Court by the contesting defendants, the same was not considered, hence the
decision arrived by the trial Court as well as the High Court cannot be
sustained. He very much commented the impugned judgment of the High Court
which, according to him, failed to take note of the earliest Will dated
02.01.1956. While elaborating the above point, he submitted that out of 92 page
judgment, the High Court referred to pleadings of the parties and arguments up
to page 85 and from page 86-92 alone discussed the Will (Exh.A-1) dated
28.09.1979 and Release Deed (Exh.A-7) dated 06.03.1969 and dismissed the appeal
and confirmed the judgment and decree of the trial Court. In the same order,
the High Court has also disposed of CMP No. 17581 of 2001 by marking original
of Exh.A-7 as Exh.B-64. We heard the submissions of other counsel.
the light of the submissions made, we have gone through the judgments of the
trial Court, High Court as well as the material documents, namely,
Will dated 02.01.1956
Release Deed (Exh.A-7) dated 06.03.1969
Settlement Deed (Exh.B-6) dated 06.03.1969 and
Will (Exh.A-1) dated 28.09.1979.
rightly pointed out by Mr. Salve, though the contesting defendants were not in
a position to place the original Will dated 02.01.1956, admittedly, the
plaintiffs have made a reference to the same Will in their plaint. In O.S. No.
456 of 1984 filed by N. Prakash and 5 of his brothers against N. Pentamma
(Defendant no. 1) and her sons in more than one place referred the Will dated
02.01.1956. In para 4 it was submitted before the trial Court:
During his life time, the late Nemuri Saya Goud executed a Will on 02.01.1956
under which he mentioned that the lands bearing Survey Nos. 284, 285, 290, 292
and 293, admeasuring 19 Acres and 15 Guntas, situate in Lothukanta, Alwal, Ranga
Reddy District were in his protected tenancy and that the other movable
properties mentioned therein, were acquired by himself and his wife Nemuri Chandramma
by their joint exertions and hard labour. Under the said Will, he bequeathed
all the properties movable and immovable jointly held by him and his wife,
jointly to Nemuri Pentamma, the defendant No.1 herein and his wife Nemuri Chandramma.
Nemuri Saya Goud died a few months later and the immovable properties standing
in the name of Nemuri Saya Goud came into the joint possession and enjoyment of
Nemuri Chandramma and Defendant No.1 herein. Subsequently, Nemuri Chandramma
and the Defendant No.1 purchased the rights of the pattedar under the
registered sale deed and thus they become the absolute owners of the
Agricultural Lands mentioned in the Will of late Nemuri Saya Goud. Later, they
also jointly purchased Agricultural Lands bearing Survey No. 291 and 602, situated
at plaintiffs are herewith filing a Geneological Tahsil showing the
relationship of parties."
from the above, specific reference, the plaintiffs have also enclosed a copy of
the Will dated 02.01.1956 executed by N. Saya Goud along with list of documents
filed along with the plaint.
of Document Parties to Description of Document 1 to 6. Xxxx Xxxx Xxx 7.
N. Saya Goud & Defendants Copy of Will executed by N. Saya Goud In the
written statement filed by the 3rd defendant, there is a reference to the Will
dated 02.01.1956 in para 5, which reads thus:
xxx Therefore, Saya Goud executed a Will dated 0.01.1956. Under the said Will,
he intended to bequeath the said property to the wife of Balaraj Goud, Pentamma
so that her children (sons the wife of Balaraj Goud) would benefit from his
estate. He, however, made specific mention in the effective part of the Will to
the effect that during the life time of Chandramma, Pentamma should look after
the welfare of Chandramma and that Pentamma should spend the income from the
properties for the welfare and maintenance of both, thereby he had safeguarded
the well being and maintenance of Chandramma for the rest of her life time by
making Pentamma responsible for the same."
also useful to refer the stand taken in the written statement filed by the
first defendant. Para 4 and 5 reads:
As regards para 4, it is submitted that the late Nemuri Saya Goud bequeathed
his properties, movable and immovable held by him and his wife, Nemuri Chandramma,
jointly to the defendant No.1 herein and his wife late Nemuri Chandramma. It is
submitted that Namuri Saya Goud died in the year 1956. After his death, all the
properties devolved upon his wife Chandramma and his daughter-in-law, Pentamma,
who is the defendant No.1 herein and arms into the joint possession and
enjoyment of Nemuri Chandramma and the defendant No.1 herein. Thus, Nemuri Chandramma
and defendant No.1 herein become the absolute owners of the agricultural lands
as mentioned in the Will executed by late Saya Goud. Thereafter, the said Nemuri
Chandramma and defendant No.1 herein purchased agricultural lands bearing S.No.
284, 285, 290, 291, 292, 293 and 602, situate at Lothucunta, Alwal, R.R.
District. It is submitted that thereafter the late Nemuri Chandramma executed a
release deed in favour of the defendant No.1 herein. As such the defendant No.1
herein alone has been in continuous possession and enjoyment of the
agricultural lands as absolute owner.
The Will executed by late Saya Goud clearly shows that late Nemuri Chandramma
had only life interest in the properties and thereafter all the rights in her favour
have been relinquished in favour of the defendant No.1 herein."
While considering the claim of the parties, learned trial Judge has also
adverted to the Will dated 02.01.1956.
Since the common question of law and facts arise in deciding these three
issues, these three issues are being dealt together.
deciding these issues, it is necessary to advert to some admitted facts and
conditions of parties. The plaintiffs, defendants 2 to 6 and 15 to 17, are the
grand children of Saya Goud. Plaintiffs are children of Sathaiah Goud,
Defendant No.1 is the wife of Balarajaiah Goud, Defendants 2 to 6 and 15 to 17
are the children of Balarajaiah Goud and the 1st defendants, 2 to 5 and 15 to
17, executed a Will dated 2.01.1956 (the execution of the said Will by Saya Gouyd
is not denied or disputed but the contents of the Will are under dispute).
Since the Will executed by Saya Goud is not brought on record by either of the
contesting parties, evidence available on record has to be considered to find
the contents of the Will of Saya Goud. In fact, plaintiffs filed a copy of the
Will dated 02.01.1956, executed by Saya Goud along with other documents as
document No.7 with the plaint. But neither side brought that document on record
as an exhibit. Neither side took steps to send for the original of the Will,
which as per the evidence of DW-1 is in the custody of Andhra Bank."
above pleadings as well as the discussion by the trial Court clearly show about
the existence of earliest Will dated 02.01.1956 executed by Saya Goud. The fact
remains that though the plaintiffs themselves placed a certified copy of the
said Will, original of the same has not been produced by the defendants. It is
their case that the original had been filed in a connected suit being O.S. No.
403 of 1976 filed by a Bank Andhra Bank. Though steps had been taken by the
High Court for transfer of the said document, till its final decision, the same
was not reached and ultimately the High Court disposed of the appeal on the
basis of the available materials and confirmed the judgment and decree of the
view of the fact that the plaintiff themselves referred to the Will dated
02.01.1956 in their plaint, asserted the same by the contesting defendant in
their written statement and specific reference to the same by the trial Court
as well as the High Court, in the absence of specific finding as to the Will
dated 02.01.1956, we are of the considered view that in the interest of
justice, the matter has to go back to the High Court for fresh consideration in
respect of the earliest Will dated 02.01.1956.
view of the above conclusion, without going into the merits of the claim made
by the parties and without expressing any opinion, we remit the matter to the
High Court for fresh disposal. We permit the appellants/contesting defendants
to place the original Will dated 02.01.1956 for consideration of the High
Court. In case, if the original is not available in view of the earlier
proceedings, they are free to place the certified copy of the Will dated
02.01.1956 and in that event, it is for the High Court to consider the same
including valid objections to be raised by the other parties in accordance with
law. Inasmuch as the appeal is of the year 1994, we request the High Court to
dispose of the same afresh in the light of the observations made above by
giving priority not later than 30.09.2008. All the parties to the proceedings
including the subsequent purchasers are free to place their respective stand
and it is for the High Court to consider uninfluenced by any of the
observations made above. Till such final decision being taken by the High Court,
parties are directed to maintain status quo prevailing as on date. All the
appeals are disposed of accordingly. No costs.