WILL = It is trite law that execution of will must be held to have been proved not only when the statutory requirements for proving the will or satisfied but the will is also found to be ordinarily free from suspicious circumstances when such evidences are brought on record, the Court may take aid of the presumpting evidences also

HIGH COURT OF ANDHRA PRADESH

WEDNESDAY ,THE THIRD DAY OF JANUARY

TWO THOUSAND AND TWENTY FOUR

PRSENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO

FIRST APPEAL NO: 3111 OF 2004

Between:

1. Visinigiri Lakshmi W/o V. Appala Swamy

R/o Gokavaram, E.G. District.

...PETITIONER(S)

AND:

1. V. Suresh S/o Satyanarayana Murthy

R/o Gokavaram, East Godavari District.

2. V. Appala Swamy R/o Gokavaram, East Godavari District.

3. V. Satyanarayana Murthy S/o Appalaswamy

R/o Gokavaram, East Godavari District.

4. V. Varaprasad S/o Appalaswamy

R/o Gokavaram, East Godavari District.

5. M. Anatha Lakshmi W/o Venkateswara Rao

R/o Gokavaram, East Godavari District.

6. N. Vijaya Lakshmi W/o Satti Raju

R/o Supreme Tailors, Beside SRMT Main Road,

Kakinada.

...RESPONDENTS

Counsel for the Petitioner(s): T V S PRABHAKARA RAO

Counsel for the Respondents: M V SURESH

The Court made the following: ORDER

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THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.3111 OF 2004

JUDGMENT: -

 This Appeal, under Section 96 of the Code of Civil Procedure

[for short ‘the C.P.C.’], is filed by the Appellant/defendant No.6

challenging the Decree and Judgment, dated 14.06.2004, in O.S.

No.205 of 1996 passed by the learned Principal Senior Civil Judge,

Rajahmundry [for short ‘the trial Court’]. The Respondents herein

are the plaintiff and defendants 1 to 5 in the said Suit.

2. The Plaintiff filed the above said suit for a) partition of plaint A

schedule and C schedule properties into two equal shares by metes

and bounds and to allot and deliver possession of one such share to

the plaintiff, b) to grant a decree directing the defendant to deliver

the jewelry shown in the schedule B filed with plaint in specie or pay

the value together with interest at 12% p.a. from the date of suit till

the date of payment; c)to direct the defendant to render a true and

correct account of the amount of Rs.1,00,000/- and make over or

pay half share of the improvements made on the said Rs.1,00,000/-

from 01.05.1990.

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3. Both the parties in the Appeal will be referred to as they are

arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.205 of 1996, are

as under:

i) The defendant is the paternal grand father of plaintiff. The

plaintiff’s mother Anasuya died when plaintiff was in tender age.

After the death of plaintiff’s mother, the father of plaintiff got second

marriage. The plaintiff used to live with the defendant. The

defendant has been acting as guardian of plaintiff during the

minority of plaintiff. While so, some disputes arose between the

defendant and his sons Satyanarayana Murthy and Varaprasada

Rao. They demanded for partition of the joint family properties. The

family was owning Ac.2.48 cents of wet land situated at Lolla village,

Ac.12.60 cents in Krishnunipalem village and Ac.2.00 cents in Seela

village and two tiled houses – one in the main road and the other in

Palepuvari Thota of Gokavaram village. The said joint family

properties were partitioned between family members including

plaintiff on 01.01.1986. The plaintiff and defendant jointly were

allotted items 1 and 2 of plaint A schedule properties. The sons of

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the defendant were allotted other properties, while affecting partition

of the joint family properties, it was agreed by all the parties

concerned that the properties allotted to the share of the plaintiff and

the defendant must be treated as joint properties between them,

each having an undivided half share therein. Partition list was

executed on 05.02.1986.

ii) The plaintiff’s mother was having gold jewelry weighing about

30 sovereigns by the time of her death in the year 1972. The said

gold jewelry was entrusted to the defendant after the death of

plaintiff’s mother for safe custody and for delivery to the plaintiff

whenever he demanded.

iii) The land situated in Lolla village was sold jointly by the plaintiff

and the defendant and realized an amount of Rs.2,20,000/- by way

of sale consideration. From out of the said amount the land shown

as item No.3 of plaint A schedule property was purchased for

consideration of Rs.1,20,000/-. The defendant informed the plaintiff

that he would rotate the balance amount of Rs.1,00,000/- by lending

the same for interest. The defendant has to account for

Rs.1,00,000/- and make over half share to the plaintiff therein with

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the improvements. The same is shown as plaint C schedule

property.

iv) While so, the defendant brought one married woman by name

Rama Lakshmi @ Lakshmi, who is having her husband, one son

and one daughter, to the house and kept her as his concubine. The

plaintiff felt that it is no longer safe to keep the plaint A and C

schedule properties as joint and got issued registered legal notice

on 14.10.1996 to the defendant calling upon the defendant to effect

partition of A and C schedule properties into two equal shares and

to allot one such share to him and also to deliver the gold jewelry

belonging to the plaintiff’s mother to the plaintiff. The defendant died

on 10.01.1997 intestate and leaving behind him his two sons and his

two daughters, who are defendants 2 to 5.

5. The first defendant filed a written statement by denying the

averments mentioned in the plaint and further contended as under: -

i) The alleged partition list dated 05.02.1986 is nothing but sheer

concoction and the alleged notary must have been a forged one and

there is no joint nucleus and none of the members of the family ever

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contributed to the defendant at any point of time and the whole

property is self acquired property, as such the plaintiff or his father

or any one else has no right over the self acquired property of the

defendant at any point of time.

ii) The said Lakshmi is none other than the legally wedded wife,

after severance of marital tie with her former husband only, he

married her 15 years ago and that she is very closely related to the

defendant and it was an open marriage.

iii) Plaintiff has no right, title or interest to seek for partition of

plaint A and C schedule properties and the question of recovery of

plaint B schedule jewelry does not arise, as they are not in existence

at all. All the items are falsely shown in the schedule to create false

cause of action, just to harass the old man and to grab his self

acquired properties.

iv) In the process of harassing this defendant, plaintiff’s father

filed OS.No.562 of 1996 on the file of I Additional District Munsif

Court, Rajahmundry for injunction with reference to the alleged shop

said to have been maintained by him in the own house by the

defendant and it is being contested.

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v) The plaintiff is mentally unsound and neglected child. On the

other hand, the plaintiff’s father took baptism and that his whole

family turned out to the Christians and separated after marriage and

there are no connections of any nature. This suit is filed with an

oblique motive. As the properties are his self acquired properties,

the defendant is at liberty to do what ever he likes and prayed the

Court to dismiss the suit.

6. The second defendant filed a written statement which is

adopted by the defendants 3 to 5. The brief averments of the

written statement filed by the second defendant are as follows:

The second defendant has no objection for grant of decree as

prayed for by the plaintiff. In any view, the deceased first defendant

died intestate and his share in the plaint schedule property devolved

on the defendants equally and the defendants are entitled to the

share of the deceased first defendant.

7. The sixth defendant filed a written statement reiterating all the

averments that are made by the deceased first defendant in his

written statement and further pleaded that the first defendant during

his life time in a sound and disposing state of mind executed a

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registered will dated 30.08.1996 in favour of sixth defendant and by

virtue of the said will, this defendant has become the absolute owner

of the plaint A schedule property and thus the plaintiff cannot claim

any right, interest or title, much less partition of the said property.

The defendants 2 to 5 are sailing with the plaintiff and they are not

at all the legal representatives of the first defendant and this is only

a collusive proceeding and prayed the Court to dismiss the suit.

8. Based on the above pleadings, the trial Court framed the

following issues:

(i) Whether the plaint A schedule properties are joint

between the plaintiff and the defendant and whether

the plaintiff is entitled to the half share therein?

(ii) Whether the partition lists dated 05.02.1986 are true

and valid?

(iii) Whether the B schedule jewellery was entrusted to

the defendant after the death of plaintiff’s mother

and whether the defendant is liable to deliver the

same in specie or their value to the plaintiff?

(iv) Whether the defendant is liable to render true and

correct account of the money shown in C schedule?

(v) Whether the suit schedule properties are self

acquired properties of the defendant?

(vi) Whether the 6th defendant is legally wedded wife of

D1?

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(vii) Whether the will dated 30.08.1996 is true, valid and

binding on the plaintiff?

(viii) To what relief?

9. During the course of trial in the trial Court, on behalf of the

Plaintiff, PW1 to PW6 were examined and Ex.A1 to Ex.A17 were

marked. On behalf of the Defendant No.6 DW1 to DW6 were

examined and Ex.B1 to Ex.B10 and Ex.X1 and Ex.X2 were marked.

10. After completion of the trial and hearing the arguments of both

sides, the trial Court partly decreed the Suit without costs vide its

judgment, dated 14.06.2004, against which the present appeal is

preferred by the appellant/defendant No.6 in the Suit questioning the

Decree and Judgment passed by the trial Court.

11. Heard Sri T.V.S.Prabhakar Rao, learned counsel for

appellant/defendant No.6 and Sri M.V.Suresh, learned counsel for

respondents.

12. The learned counsel for appellant would contend that the

appellant married the first defendant after the death of his first wife

and the first defendant executed a registered will under Ex.B6 in

favuor of sixth defendant in respect of plaint A schedule property.

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He would further contend that the trial Court disbelieved the marital

relationship in between first defendant and sixth defendant. He

would further contend that the trial Court came to wrong conclusion

that Ex.B6 will is not genuine one. He would further contend that

appeal may be allowed by setting aside the decree and judgment

passed by the trial Court.

13. Per contra, the learned counsel for the respondents would

contend that on appreciation of entire evidence on record, the trial

Court rightly partly decreed the suit and there is no need to interfere

with the finding given by the Trial Court.

14. The present appeal is instituted by the sixth defendant alone.

No appeal or no cross objections are filed by the other defendants.

Having regard to the pleadings in the Suit and the findings recorded

by the trial Court and in the light of rival contentions and

submissions made on either side before this court, the following

points would arise for determination:

I. Whether Ex.B6 will is true, valid and binding on

the plaintiff and defendants 2 to 5?

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II. Whether the trial Court is justified in partly

decreeing the suit?

III. Whether the decree and judgment passed by the

trial court needs any interference?

15. Point No.1:

I. Whether Ex.B6 will is true, valid and binding

on the plaintiff and defendants 2 to 5?

It is the case of the appellant/ 6th defendant that after obtaining

the divorce from her first husband, she married the first defendant.

The factum of said marriage is disputed by the plaintiff. It is the

specific case of the plaintiff that the sixth defendant is not the legal

wedded wife of the first defendant, therefore, the sixth defendant

has to prove her marital relationship with first defendant and the

marriage also to be proved by the appellant. There is no whisper in

the evidence of DW1 that when her marriage was taken place with

the first defendant, she simply stated in her evidence that the said

marriage was performed in the year 1986. She has not stated about

the specific date and month of the alleged marriage. It is an

admitted fact by the appellant that she married Suryanarayana and

she gave a birth to one son and one daughter through him. As per

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the own statement of 6th defendant, she obtained a customary

divorce from her first husband in the presence of elders. Admittedly

the appellant belongs to Turpu Kapu community. As per her own

evidence, her marriage with her first husband Suryanarayana was

performed as per Hindu caste and customs and she belongs to

Turpu Kapu community. It is not in dispute that she has not obtained

divorce from her first husband Suryanarayana through a competent

Court.

16. In order to prove the alleged divorce with first husband, the

appellant relied on Ex.B1. Except Ex.B1, no other document is filed

by the appellant to show that she obtained a customary divorce from

her first husband. As stated supra, the appellant belongs to Turpu

Kapu community. As per her own evidence, her marriage with her

first husband Satyanarayana was performed as per Hindu caste,

customs, she belongs to Turpu Kapu community. If at all the Ex.B1

is to be true, there is no legal validity to Ex.B1 because as per the

own admissions of the appellant her marriage with her first husband

was performed as per Hindu Caste and Customs. Admittedly no

divorce was obtained by the appellant from a competent Court. In

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order to prove the alleged customary divorce, the appellant relied on

the evidence of DW2. DW2, who is none other than the father of the

sixth defendant. As per his evidence, the scribe and attestors of the

customary divorce deed are no more. As per the evidence of DW3,

the marriage of sixth defendant was performed with the first

defendant in the house of first defendant’s elder sister.

Subsequently, she came to know that sixth defendant obtained

divorce from her former husband and married the first defendant.

Ex.B1 goes to show that the alleged divorce was obtained in the

presence of attestors and scribe. Admittedly the alleged attestors

and scribe are not at all examined. Moreover, if the alleged

attestors and scribe are no more, the appellant has to take steps to

prove Ex.B1 by examining the legal representatives of the attestors

and scribe. As stated supra, Ex.B1 is not a valid document.

Therefore, the alleged divorce of the sixth defendant with her first

husband Suryanarayana was not at all proved by the appellant.

17. In order to prove the marriage of the sixth defendant with first

defendant, she relied on the evidence of her father DW2 and so also

relied on the evidence of DW3. As per the own evidence of the

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appellant there was age gap of 30 years in between the first

defendant and appellant. At the time of her alleged marriage with

first defendant, children born through her first husband are alive.

The factum of alleged marriage in between the appellant and first

defendant is disputed by the plaintiff. To prove her alleged marriage

with first defendant, she got examined one witness as DW3. The

presence of DW3 at the time of alleged marriage of sixth defendant

with first defendant is not at all stated by either DW1 or DW2.

Admittedly no photos are filed to prove the factum of marriage of

appellant with first defendant. There is no documentary proof to

show about the marriage of first defendant with sixth defendant.

Therefore, the alleged marriage of first defendant with sixth

defendant is not at all proved. The alleged divorce of sixth defendant

with her first husband is not at all proved. As stated supra, even if

Ex.B1 is true, it is not a valid document. More so, the alleged

attestors or scribe of Ex.B1 is not at all examined. Therefore, for the

reasons stated above the appellant is not the legally wedded wife of

the first defendant.

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18. The contention of the appellant is that the first defendant

bequeathed the plaint schedule property to the sixth defendant

under Ex.B6 registered will. Admittedly the first defendant died

during the pendency of the suit. The execution of alleged will is

seriously disputed by the plaintiff. The alleged will is dated

30.08.1996. The first defendant was alive at the time of institution of

suit and he also filed a written statement in the present suit. The

suit is instituted on 31.10.1996. The date of alleged will is

30.08.1996. The first defendant engaged an advocate and filed a

written statement in the year 1997. There is no whisper about the

alleged will Ex.B6 in the written statement filed by the first defendant.

The first defendant died in the year 1998. Therefore, the appellant

has to explain what prevented the first defendant to mention about

the alleged will dated 30.08.1996 in favour of sixth defendant in the

written statement itself. There is no explanation on behalf of the

appellant in this context. Since the alleged will is seriously disputed

by the plaintiff, the first defendant relied on the evidence of DW4,

who is none other than her son-in-law and so also the scribe of the

alleged will as DW5.

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19. DW4 is none other than the son-in-law of the appellant. As per

his evidence he acted as attestor and so also identifying witness

before the Sub Registrar in Ex.B6 will. His evidence is no way

helpful to prove the factum of proof of will. He deposed in his

evidence about the alleged execution of will by the first defendant.

DW5 is the scribe. He deposed in his evidence that on 30.08.1996,

first defendant executed a registered will in favour of his wife namely

Lakshmi and also his friend by name Vasa Parama Mithra Reddy,

on the dictation of the executant i.e., first defendant, he scribed

Ex.B6. He further deposed that the attestors DW4 and another

signed on Ex.B6 in the presence of first defendant and the first

defendant makes his signature in the presence of DW4 and another

attestor. Ex.B6 is the will executed by first defendant. In cross

examination, he admits that except on the date of execution of

Ex.B6, he did not see the first defendant i.e., he does not have prior

acquaintance with first defendant, he did not write any document

belongs to first defendant except Ex.B6 and the recitals in Ex.B6

that Sarada was born to him and DW1 is correct, all the terms of

Ex.B6 was dictated by first defendant. He further admits that as per

Ex.B6, first defendant is residing at Gokavaram and came to

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Rajahmundry and executed the same at Rajahmundry. First

defendant brought some papers at the time of execution of Ex.B6,

but he does not know what is the document, he brought and no lady

came along with first defendant at the time of execution of Ex.B6.

He further admits that he does not know personally whether first

defendant executed Ex.B6 or some body in his name. Therefore, his

evidence is no way helpful to prove the alleged Ex.B6 will.

20. The only evidence available with regard to proof of alleged will

is the evidence of DW4 alone. As per the evidence of DW4, DW1 is

his wife’s mother. He admits that the recitals in Ex.B6 to the effect

that his wife was born to sixth defendant and DW1 are correct.

There was a clear recital in Ex.B6 alleged will by the testator that

one Sarada was born to the sixth defendant through him. But as per

the evidence of sixth defendant i.e., DW1, no children were born to

her through first defendant. In chief examination itself, DW4 stated

that he married the daughter of sixth defendant born through her

former husband. Moreover, he is none other than the son-in-law of

beneficiary under Ex.B6 will. As stated supra, as per the contents of

alleged Ex.B6 will one Sarada was born to the appellant through the

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first defendant. The same is denied by the appellant herself in her

evidence in cross examination itself. She clearly admitted in her

evidence that no children were born through her to the first

defendant. Therefore, there are several suspicious circumstances

surrounding about the execution of will. As per the evidence of

DW4 another attestor is his friend, for the reasons best known to the

sixth defendant, the said another attestor is not at all examined.

Admittedly, the first attestor is none other than the son-in-law of the

beneficiary of the alleged will. Therefore, the evidence of DW4 does

not inspire confidence. Moreover, the scribe of Ex.B6 clearly admits

in his evidence in cross examination that except on the date of

alleged will he did not see the first defendant and he does not have

any prior acquaintance with the first defendant. Another crucial

admission made by him is that he does not know personally whether

the testator i.e., first defendant executed Ex.B6 will or somebody in

his name. Therefore, there are several suspicious circumstances

surrounding the will. The law regarding proof of valid will is well

settled by the Apex Court in catena of judgments. Apex Court held

in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas

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Kataria and others1 as follows: It is trite law that execution of will

must be held to have been proved not only when the statutory

requirements for proving the will or satisfied but the will is also found

to be ordinarily free from suspicious circumstances when such

evidences are brought on record, the Court may take aid of the

presumpting evidences also.

21. As stated supra, there are several suspicious circumstances

and there was a cloud about the alleged execution of Ex.B6 will. The

said suspicious circumstances and cloud is not at all removed by the

beneficiary of the will Ex.B6. The learned counsel for appellant

placed a reliance of Division Bench of composite High Court of

Andhra Pradesh in P.Seshamma Vs. Pathri Krupa Sagar2

. As

stated supra the execution of the will itself is surrounded by the

suspicious circumstances in the case on hand and there was a

heavy cloud on the will but the beneficiary of the will failed to

remove the said suspicious circumstances and so also cloud about

the execution of the alleged will. It is well settled that the suspicious

circumstances has to be proved by the beneficiary of the will by

1

(2008)15 SCC 365

2 1997 Law Suit (AP) 328

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adducing cogent evidence, but in the case on hand, the sixth

defendant failed to prove the alleged Ex.B6 will is a genuine one.

Therefore, the finding of the trial Court that Ex.B6 will is not at all

proved and the said Ex.B6 will is not genuine is perfectly sustainable

under law and it requires no interference. Accordingly, point No.1 is

answered.

22. Point Nos.2 and 3:

Whether the trial Court is justified in partly

decreeing the suit?

Whether the decree and judgment passed by the

trial court needs any interference?

The case of the plaintiff is that plaint A schedule property is

ancestral property. The contention of the appellant herein is that A

schedule property is the self acquired property of first defendant.

The other defendants also pleaded that the plaint schedule property

is not the self acquired property of first defendant. To discharge his

burden the sole plaintiff is examined as PW1. PW1 is none other

than the son of second defendant. As per his evidence his mother

died when he was aged about one year and the in the year 1986

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there was a partition of joint family properties in between himself

and the defendants 1, 2 and 3 and the same were divided into four

shares, 2 shares were allotted to defendants 2 and 3 and third share

and fourth shares were allotted to first defendant and himself and

the first defendant represented by guardian of the plaintiff singed on

the said partition list and partition list was prepared at that time and

the original partition list was in the custody of first defendant and the

copy of partition list was handed over to the plaintiff and so also

defendants 2 and 3 and Ex.A1 is the Xerox copy of partition list

handed over to him dated 05.02.1986. Ex.A1 goes to show that the

first defendant and his sons and plaintiff partitioned the schedule

properties by way of oral partition on 01.01.1986 and by evidencing

the past transaction the same was reduced into writing on

05.02.1986. In the said partition list, specific shares were allotted to

the respective parties. The evidence of PW1 further goes to show

that himself and his grand father got Ac.2.48 cents agricultural lands

situated at Lolla village, Rayavaram Mandal, himself and his grand

father sold 248 cents of land to the third party. He further deposed

that Ex.A2 and Ex.A3 are the registration extracts of the sale deeds.

Admittedly, the alleged partition list is dated 05.02.1986. The

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respective sales made by first defendant and plaintiff were affected

on 11.04.1990. All the sale transactions are under registered sale

deed, it is clearly goes to show that Ex.A1 partition list is acted upon.

Sale deeds dated 16.04.1990 clearly goes to show that the first

defendant and plaintiff purchased Ac.5.78 cents situated at

Kothapalli and Ex.A4 and Ex.A5 are the registration extract of the

said sale deeds. Those are subsequent to the transactions of Ex.A1.

Ex.A2 to Ex.A5 clearly goes to show that Ex.A1 partition list was

acted upon. Ex.A6 clearly goes to show that prior to institution of the

suit, the plaintiff got issued a legal notice to the sole defendant and

the same is acknowledged by the sole defendant under Ex.A7. The

material on record reveals that the sole defendant died intestate in

the year 1998 and that the defendants 2 to 5 were added as a

proper and necessary parties as a legal representatives of the first

defendant.

23. The learned counsel for appellant argued that the said Ex.A1

partition list is not a registered document and placed a reliance of

larger bench judgment of composite High Court of Andhra Pradesh

in Chinnappareddigari Pedda Muthyalreddy vs.

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Chinnappareddigari Venkata Reddy3

. The facts in the said case

are there was a partition deed, but not a partition list. In the

aforesaid case, the unregistered partition deed was executed in

between both the parties. Here in the present case, the first

defendant, plaintiff and defendants 2 and 3 orally partitioned the

plaint A schedule property under oral partition on 01.01.1986. By

evidencing the same, they have prepared partition list on

05.02.1986 under Ex.A1 by recording past transaction. The legal

position in this regard is no more res integra. The same is well

settled by the Apex Court in a case of Roshan Singh and others

vs. Zile Singh and others4

, in the said decision the Apex Court

held as follows:

It is well-settled that while an instrument of partition which operates

or is intended to operate as a declared volition constituting or

severing ownership and causes a change of legal relation to the

property divided amongst the parties to it, requires registration

under s. 17(1)(b) of the Act, a writing which merely recites that

there has in time past been a partition, is not a declaration of will,

but a mere statement of fact, and it does not require registration.

The essence of the matter is whether the deed is a part of the

partition transaction or contains merely an incidental recital of a

3 1967 Law Suit (AP)100

4

(2018)14 SCC 814

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previously completed transaction. The use of the past tense does

not necessarily indicate that it is merely a recital of a past

transaction. It is equally well-settled that a mere list of properties

allotted at a partition is not an instrument of partition and does not

require registration. Sec. 17(1)(b) lays down that a document for

which registration is compulsory should, by its own force, operate

or purport to operate to create or declare some right in immovable

property. Therefore, a mere recital of what has already taken place

cannot be held to declare any right and there would be no necessity

of registering such a document. Two propositions must therefore

flow: (1) A partition may be effected orally; but if it is subsequently

reduced into a form of a document and that document purports by

itself to effect a division and embodies all the terms of bargain, it

will be necessary to register it. If it be not registered, S. 49 of the

Act will prevent its being admitted in evidence. Secondary evidence

of the factum of partition will not be admissible by reason of S. 91 of

the Evidence Act, 1872. (2) Partition lists which are mere records of

a previously completed partition between the parties, will be

admitted in evidence even though they are unregistered, to prove

the fact of partition: See Mulla’s Registration Act.

The tests for determining whether a document is an instrument of

partition or a mere list of properties, have been laid down in a long

catena of decisions of the Privy Council, this Court and the High

Courts. The question was dealt with by Vivian Bose, J. in Narayan

Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR

(1938) Nag. 604. Speaking for himself and Sir Gilbert Stone, CJ.

the learned Judge relied upon the decisions of the Privy Council in

Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59 IA 130

and Subramanian v. Lutchman LR (1923) 15 IA 77 and expressed

as follows:

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"It can be accepted at once that mere lists of property do not form

an instrument of partition and so would not require registration, but

what we have to determine here is whether these documents are

mere lists or in themselves purport to ’create, declare, assign, limit

of extinguish ..... any right, title or interest’ in the property which is

admittedly over Rs.100 in value. The question is whether these lists

merely contain the recital of past events or in themselves embody

the expression of will necessary to effect the change in the legal

relation contemplated."

The ratio laid down in the said case is squarely applicable to

the present facts of the case. Here in the instant case, Ex.A1 clearly

goes to show that both the parties in Ex.A1 orally partitioned the

schedule properties on 01.01.1986 and by evidencing the past

transaction, they prepared partition list on 05.02.1986. Therefore,

Ex.A1 does not require registration and Ex.A1 is valid document.

24. Another important circumstance is that the other defendants,

who are the blood relatives of the plaintiff have not disputed the half

share claimed by the plaintiff. PW2, who is the none other than the

father of PW1 deposed that first defendant had a house and house

site and paddy go-down in Rayavaram village and he had Ac.1.15

cents of land in Lolla village and another extent of 248 cents and he

had Ac.5.00 cents of land in the said village and the said properties

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are the ancestral properties of first defendant. He further deposed

that the first defendant got the said properties in a partition list in

between himself and his brothers and the said properties are

ancestral properties of first defendant and by evidencing the past

transaction, a partition list was prepared subsequently under Ex.A1.

First defendant signed on Ex.A1 and first defendant also signed on

behalf of plaintiff, who is a minor by then. As per the case of the

second defendant also by the tender age of the plaintiff i.e., aged

about less than 5 years, the mother of the plaintiff died and that the

plaintiff used to reside in the house of the first defendant and first

defendant used to act as a guardian. PW3 who is a co-brother of

the first defendant also supported the plaintiff in all aspects. PW6

who is said to be the scribe of Ex.A1 clearly deposed in his evidence

about the preparation of Ex.A1 original partition list. As per his

evidence, he prepared a draft partition list in connection with the

partition of the schedule properties of plaintiff and others and the

first defendant and his sons signed on Ex.A1 and Ex.A1 is the

Photostat copy of the partition list prepared by him and signed by

the first defendant and his sons and the eldest son-in-law of first

defendant and village karanam of Hukumpeta had attested the

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partition list, therefore, the Ex.A1 is well supported by PW6 and so

also PW2. As stated supra, the sixth defendant i.e., appellant herein

pleaded that all the plaint schedule properties are self acquired

properties of first defendant. But in order to prove the same, no

piece of evidence is produced by the appellant. On the other hand,

the plaintiff produced a cogent and reliable evidence before the

Court to show that the plaint A schedule Property is not the self

acquired property of the first defendant. The main contention of the

plaintiff is that during the life time of first defendant, himself and his

children, defendants 2 and 3 and plaintiff being represented by his

grandfather/ first defendant orally partitioned the plaint schedule

property and by evidencing the earlier partition separate partition list

was prepared on 05.02.1986 under Ex.A1. As stated supra, Ex.A2

to Ex.A5 clearly goes to show that the Ex.A1 partition list is acted

upon. Therefore, for the foregoing reasons, the trial Court is justified

in awarding half share in the plaint A schedule properties.

25. As per the evidence of PW1 by the date of death of his mother,

she had 30 sovereigns of gold jewelry and he had shown the details

of 30 sovereigns of gold jewelry in plaint B schedule. He further

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deposed that his father after the death of his mother married another

woman and the share of the property of gold which he got in

partition is with his grand father. The same is supported by PW2,

who is natural father of the plaintiff. PW3 also supported the case of

the plaintiff. PW4 also deposed in his evidence that they presented

30 sovereigns of gold jewelry and Ac.1.00 cents of land to the

plaintiff’s father at the time of her marriage with PW2 and first

defendant got the gold jewelry and land of plaintiff’s mother and

taken away the cash with him stating that they would improve the

said amount. The first defendant filed a written statement during his

life time in the present suit proceedings. It is not the case of the first

defendant that the deceased mother of the plaintiff was not having

any gold jewelry. The evidence of PW1 to PW4 establishes that the

plaintiff’s mother was having 30 sovereigns of gold jewelry during

her life time and the same is with the first defendant and there was a

condition that the first defendant has to return the same to the

plaintiff after attaining the majority. The evidence on record clearly

goes to show that the plaintiff’s mother died during the childhood of

PW1, at the tender age, and subsequently PW2 the father of the

plaintiff, after the death of first wife, married another woman second

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time and the plaintiff used to stay at the house of the first defendant

and first defendant used to act as a guardian and he also signed as

guardian in Ex.A1 partition list, therefore, the trial Court rightly

awarded plaint B schedule property gold jewelry 30 sovereigns or

Rs.90,000/- being its value from the defendants 2 to 5. Admittedly,

the defendants 2 to 5 have not filed any appeal or cross objections

against the judgment passed by the trial Court. Accordingly and in

view of my findings on point No.1, I do not find any illegality in the

decree and judgment passed by the trial Court and the decree and

judgment passed by the trail Court is perfectly sustainable under law

and it requires no interference.

26. In the result, the Appeal Suit is dismissed confirming the

decree and Judgment dated 14.06.2004, in O.S.No.205 of 1996

passed by the learned Principal Senior Civil Judge, Rajahmundry.

No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

Appeal shall stand closed.

_________________________

V.GOPALA KRISHNA RAO, J

Date: 03.01.2024

sj

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120

THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.3111 OF 2004

Date: 03.01.2024

sj

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