Allowed

Jarugumalli Brahmaiah, ( Foster), v. Jarugumalli Yesu

Telangana HC4 Nov 2009CMA/1807/2002

Case brief

AI extract

What is this about?

The High Court allowed the Civil Miscellaneous Appeal against an order dismissing a petition for succession certificate under Section 372 of the Indian Succession Act. The court held that the lower erred in finding the will suspicious without cross-examination, as respondents forfeited their right to cross-examine unchallenged evidence.

What did the court decide?

The impugned order dated 23.7.2001 was set aside, and O.P. No.248 of 1996 was allowed.

Jarugumalli Brahmaiah, ( Foster), Vs… — Succession and Inheritance | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Civil Miscellaneous Appeal No.1807 of 2002

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(Dated : 04-11-2009)

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Between:

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Jarugumalli Brahmaiah foster S/o late Kotamma R/o 24/1565, Brahmanandapuram, Dargamitta, Nellore.

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….Appellant/petitioner

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A n d

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Jarugumalli Yesu S/o Kondaiah R/o Brahmanandapuram, Dargamitta, Nellore and others

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…Respondents/Respondents

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Civil Miscellaneous Appeal No.1807 of 2002

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ORDER:

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This Civil Miscellaneous Appeal is directed against the order dated 23.7.2001 passed in O.P.No.248 of 1996 on the file of the Court of the District Judge, Nellore, whereby and whereunder, the learned District Judge dismissed the petition filed under Section 372 of the Indian Succession Act for issuance of succession certificate in favour of the petitioner.

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2. The petitioner claims to be the adopted son of Jarugumalli Kotamma, who is the younger sister of his father China Kotaiah. The adoption is stated to have taken place in the year 1985 in the presence of relatives and friends as per the Hindu customs. It is also the case of the petitioner-appellant that his adoptive mother executed a will dated 03.7.1995 bequeathing all her movable and immovable properties in his favour. His adoptive mother was working as a Sweeper in Nellore Municipality. After the death of his adoptive mother, he approached the Nellore Municipality for providing him job on compassionate grounds. He also claimed the terminal benefits of his adoptive mother. The Nellore Municipality directed him to obtain succession certificate so as to enable them to consider his claim for grant of terminal benefits etc., relating to his adoptive mother. A general notice was issued in

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Janata daily.

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3. The 1^st respondent filed counter resisting the application. He denied the adoption as well as execution of the will by the deceased Kotamma.

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4. The 3^rd respondent-Commissioner, Nellore Municipality, Nellore filed counter denying the claim of the petitioner.

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5. On behalf of the appellant-petitioner, he got himself examined as Pw-1 and examined J.Yesurathnam as PW-2 and marked 10 documents-Exs.A-1 to A-10.

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6. Though the 1^st respondent filed counter resisting the claim of the appellant-petitioner, he did not chose to cross examine the witnesses and consequently, his right of cross-examination came to be forfeited.

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7. The learned District Judge, on considering the material brought on record, came to the conclusion that Ex.A-1 will is shrouded by suspicious circumstances and thereby, proceeded to dismiss the application, by order dated 23.7.2001. Hence, this C.M.A by the appellant-petitioner.

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8. Despite notice being served on respondents 1 to 3, they do not choose to enter appearance either in person or through counsel.

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9. Heard learned counsel appearing for the appellant and perused the material brought on record.

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10. Learned counsel appearing for the appellant submits that the appellant besides examining himself as PW-1 examined the attestor of the

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will, which has been exhibited as Ex.A-1, and also the notarized adoption deed dated 9.1.1995, which has been exhibited as Ex.A-5, to prove the contents therein. A further submission has been made that though the 1^st respondent did not choose to cross examine PWs.1 and 2, the learned District Judge proceeded to discard their evidence on the ground that Ex.A-1will is shrouded by suspicious circumstances, which apparently have not been made out by the 1^st respondent, who filed the counter resisting the application.

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11. PW-1 is the appellant. He testifies that the deceased Kotamma took him in adoption and executed a notarized adoption deed on 9.1.1995. He also testifies that the deceased Kotamma executed a will, which was notarized on 3.7.1995. Ex.A-1 is the will. PW-2 is an attestor for both the adoption deed and the will deed executed by the deceased Kotamma. The learned District Judge discarded the evidence of PW.2 on the ground that he appears to be an interested witness, because he is an attestor in both the documents. There is no cross examination to PW-2 challenging his evidence in the chief examination. Indeed the learned District Judge forfeited the right of the 1^st respondent to cross-examine PWs.1 and 2, as per the endorsement on the docket on 08.2.2001.

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12. For better appreciation, I may refer the docket endorsement made by the learned District Judge dated 8.2.2001, which reads as hereunder:-

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“Petitioner is present. Petitioner’s counsel is present. PW.1 is present for cross-examination. No representation for the respondents 1 and 2. PW.1 is present for cross-examination on two or three occasions. But, he is not being cross examined. This is an old matter ripe for disposal. Hence, right of crossexamination is forfeited. For further evidence, call on

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22.2.2001”.

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On 22.2.2001, the appellant examined PW-2 and closed his side.

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13. Practically, the 1^st respondent who filed counter resisting the claim of the appellant, did not choose to cross-examine PWs.1 and 2 and thereby, the evidence of PWs. 1 and 2 remained unchallenged. Once the evidence of PWs. 1 and 2 remains unchallenged, it cannot be said that Ex.A.1 will is shrouded by suspicious circumstances. Once Ex.A-1 is proved, the appellant is to be declared as a legal heir to the deceased Jarugumalli Kotamma.

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14. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the order dated 23.7.2001 passed in O.P.No.248 of 1996 on the file of District Judge, Nellore. Consequently, O.P 248 of 1996 stands allowed. No order as to costs.

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_____________________________ B.SESHASAYANA REDDY, J

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04-11-2009 RAR

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Civil Miscellaneous Appeal No.1807 of 2002

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DATED : 4-11-2009

Jarugumalli Brahmaiah, ( Foster), v. Jarugumalli Yesu

Case brief

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Jarugumalli Brahmaiah, ( Foster), v. Jarugumalli Yesu

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