Dismissed

Kanumuri Sarojini Devi v. Kanumuri Anuradha Nagamani

Andhra Pradesh HC13 Dec 2022CRP/972/2019

Case brief

AI extract

What is this about?

This single-judge High Court order dismissed a civil revision petition seeking leave to file the colour photostat of an unregistered will as secondary evidence. The bench held that the impugned order of the trial court was not liable to be interfered with.

What did the court decide?

Revision petition dismissed; liberty granted to take further steps to produce original will before filing secondary evidence.

Kanumuri Sarojini Devi Vs Kanumuri… — Succession and Inheritance | Andhra Pradesh HC (2022)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

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C.R.P.No.972 of 2019

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O R D E R:

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This civil revision petition is filed under Article 227 of the Constitution of India, against the orders dated 17.12.2018 dismissing I.A.No.659 of 2018 in O.S.No.47 of 2014 on the file the Court of the Special Judge for trial of cases under SCs & STs (POA) Act-cum-VIII Additional District and Sessions Judge, West Godavari, Eluru filed under Section 65 of the Indian Evidence Act r/w Section 151 CPC to permit the petitioners/defendants to file a colour Xerox copy of the unregistered will dated 10.09.1986 as secondary evidence.

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The revision petitioners are the defendants. The respondent herein is the plaintiff. A suit for partition of A and B schedule properties was filed by the plaintiff in November, 2013. The 1^st defendant filed written statement in October, 2014 stating that B schedule property which was purchased by her husband under a registered sale deed dated 26.03.1985 was bequeathed to her under the unregistered will dated 10.09.1986 and that on his death, she became absolute owner of the same and enjoyed it and that she sold away the B schedule property to Kasani Deepthi of Hyderabad under a registered sale deed dated 23.03.2013 and handed over the original will to the vendee.

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CRP No.972 of 2019

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As such, the petitioners/defendants intended to file the colour Xerox

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copy of the will as evidence on their behalf as secondary evidence. For the said purpose, I.A.No.659 of 2018 was filed in October, 2018. Before filing the said petition, the first defendant got issued a legal notice to the vendee by name Smt Kasani Deepthi to produce the original will for the purpose of evidence in this suit. The said notice was sent to three different addresses and all three of them were returned unserved. Along with the petition in I.A.No.659 of 2018, the returned notices were enclosed, along with the office copy of the legal notice dated 22.09.2018. According to the petitioners, inspite of trying their best to bring the original will, they could not trace the whereabouts of the vendee and therefore they sought permission to file the colour photostat copy of the will as secondary evidence.

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The petitioner was opposed by filing counter of the plaintiff alleging that the will was fabricated for the purpose of the suit and that the photostat copy of the will cannot be received as it is not possible to determine the age of the paper or the ink.

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After hearing both parties, the trial Court dismissed the petition observing that except the bald contentions of the petitioners, they did not take any steps by issuing notice to third party to secure the whereabouts of his vendor by name Kasani Deepti and that the petitioners did not make any efforts to secure the original of the will from possession of the third party

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CRP No.972 of 2019

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who is said to be in possession of the B schedule property, by issuing any notice to him, though the petitioners stated that the third party is in possession of B schedule property, but did not disclose whether the will was handed over to the third party by his vendor Kasani Deepti.

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Having aggrieved by the order, the revision petition is filed.

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The learned counsel for the petitioners submitted that the plea that husband of the 1^st defendant executed the will and that the property was sold to Kasani Deepti was specifically pleaded in the written statement itself and that the registered sale deed in favour of Kasani Deepti refers to the will in question and further that since the petitioners could not secure the original will, inspite of their best efforts by issuing notice to the vendee, they are entitled to lead secondary evidence.

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Even as per the contention of the petitioners, Kasani Deepti has inturn sold property to third party who is presently in possession of plaint B schedule property. Therefore, as rightly observed by the trial Court, the petitioners have to take appropriate steps to call the party in possession of the property to produce the original will, to know whether the original will was handed over by Kasani Deepti to the subsequent purchaser. As such, mere issue of notices to the vendee would not absolve the petitioners of their obligation to take further steps to procure the original document, as they have got the knowledge that the property has been further alienated by their vendee.

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CRP No.972 of 2019

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It is also pertinent to mention that inspite of a specific plea taken by the 1^st defendant that B schedule property was sold long prior to filing of the suit and the details of the same were mentioned in the written statement, no step has been taken so far by the plaintiff to implead the purchaser of the property as party to the suit. If at all any such step is taken, the purchaser whoever is now holding the property has to defend the suit by filing the original will. Ofcourse, even otherwise the defendants can establish the right of the first defendant under the alleged will and subsequent sale of the property and to prove that such property is not available for partition, but a finding adverse to the interest of the subsequent purchaser may not be possible to be taken in the absence of such party.

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Since the petitioners have not taken steps appropriate to seek the relief of adducing secondary evidence by taking notice to the subsequent vendee who is now in possession for production of the original will, the matter has not ripen to enable the petitioners to produce the secondary evidence of the will. As such, the impugned order need not be interfered. But that does not bar the petitioners to take further steps to establish the ground available to them to produce the secondary evidence.

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In the result, the revision petition is dismissed, however, giving liberty to the petitioners to take further steps, if so adviced, to enable them

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CRP No.972 of 2019

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to file the secondary evidence of the will, after taking necessary steps for production of the original will from the person who is in possession of it.

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There shall be no order as to costs. Pending miscellaneous petitions,

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if any, shall stand closed.

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_________________ B.S.BHANUMATHI, J

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Dt. 13.12.2022

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PNV

Kanumuri Sarojini Devi v. Kanumuri Anuradha Nagamani

Case brief

What is this about?

What did the court decide?

Kanumuri Sarojini Devi v. Kanumuri Anuradha Nagamani

Case brief

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What did the court decide?

What the court decided

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