Dismissed

Smt. Bale. Sattemma v. Smt. Nepala Manikyam

Telangana HC13 Aug 2012SA/1455/2011

Case brief

AI extract

What is this about?

This judgment dismisses two second appeals arising from a partition suit regarding ancestral properties. The High Court held that the trial and appellate courts correctly identified certain documents as binding settlement deeds rather than revocable wills. The court found no substantial question of law as the remaining disputed property was validly bequeathed to the defendants by a will, upholding

What did the court decide?

Both the Second Appeals (S.A.Nos. 236 of 2009 and 1455 of 2011) were dismissed at the stage of admission.

Smt. Bale. Sattemma Vs Smt. Nepala Manikyam — Partition | Telangana HC (2012)

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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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S.A.Nos.236 of 2009 and 1455 of 2011

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COMMON JUDGMENT:

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Both the appeals arise out of a common judgment in O.S.No.63 of 1995 on the file of the Senior Civil Judge at Tadepalligudem. The suit was filed by the plaintiff for partition of the plaint ‘A’ schedule property into two equal shares and ‘B’ schedule property into three equal shares. According to the case of the plaintiff, one Rajaiah is the father of plaintiff, first defendant and grandfather of D.2 and D.3 and was possessed of ‘A’ & ‘B’ schedule properties. He executed a registered settlement deed on 31.07.1979 conveying an extent of Ac.0.39 cents in R.S.No.768/4 with a right of enjoyment for life time to his wife and to be enjoyed equally by plaintiff and first defendant thereafter with absolute rights. He also executed another settlement deed dated 28.11.1980 reserving the life estate for himself and his wife and vested remainder to the plaintiff and first defendant. The mother of the plaintiff pre-deceased to father of the plaintiff. The first defendant and the second defendant have prevailed upon Rajaiah to execute a Will on 28.01.1989 bequeathing the properties to the first and second defendants, when he was not in a proper mental condition. They also made Rajaiah to execute a document dated 04.06.1992 cancelling the earlier settlement deeds in favour of plaintiff and first defendant styling it as revocation deed. The plaintiff claimed that by virtue of the settlement deeds, she became entitled to half share out of Ac.0.31 cents in R.S.No.776/4; Ac.0.39 cents in R.S.No.768/4; Ac.0.21 cents in R.S.No.776/1 and Ac.0.22 cents in R.S.No.776/3. The defendants 1 and 2 also got executed two Wills under undue influence dated 04.06.1992 to knock away the properties. Therefore, all the Wills executed by Rajaiah are not valid and the plaintiff is entitled to half share in the properties of her mother and half share in R.S.No.768/4 and also 1/3 share in the ‘B’ schedule property.

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2. The defendants 1 and 2 have denied the alleged settlement

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deeds and contended that they are only Wills. They claim that the Wills executed by Rajaiah in their favour are genuine and as they are registered, there cannot be any doubt about their enforceability. The plaintiff cannot question those documents and consequently the alleged settlement deeds are not valid. The 4^th defendant who came on record along with D.5 to D.7 contended that the Wills propounded by D.1 and D.2 are not true and they are also entitled for a share.

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3. After considering the material evidence on record, the trial Court found that the settlement deeds-Exs.A.6 and A.7 are true and they are only settlement deeds and not the Wills, as claimed by the defendants 1 and 2. It was further held that the Wills relied on by the defendants cannot have any affect and consequently decreed the suit. When the matter was carried in appeal by the defendants 1 and 2, in A.S.No.42 of 2002, the V Additional District Judge, Eluru, the appellate Court while confirming all the findings with regard to the documents, has interfered with the shares with regard to the part of the plaint ‘A’ schedule property which is the land in survey no.768/4. The appellate Court took note of the fact that the total extent of the land in survey no.768/4 is Ac.0.78 cents but the gift deed in favour of the plaintiff and the first defendant relates to only Ac.0.39 cents. The remaining Ac.0.39 cents of land in survey no.768/4 i.e., item no.1 of the plaint ‘A’ schedule is liable for partition among defendants 1 and 2, by virtue of the Will-Ex.B.4 executed by Rajaiah in favour of defendants 1 and 2.

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4. Aggrieved by the above judgment, the defendants 1 and 2 have filed S.A.No.236 of 2009 and the plaintiff has filed S.A.No.1455 of 2011 for not granting a share in the item no.1 of plaint A schedule equally.

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5. Heard both sides.

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6. It is to be noted that if the settlement deeds relied on by the plaintiffs are not to be treated so, then the contention of the defendants about the documents being only Wills and revocation being done has to

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be accepted. But however both the Courts, on appreciation of the evidence, came to the conclusion that Exs.A.6 and A.7 are settlement deeds and consequently they are binding on all and Rajaiah has no power of revocation. Therefore, when once those documents are to be treated as gifts and the contention of the defendants that they are only Wills that can be revoked is negatived, consequently the properties concerning Exs.A.6 and A.7 have to be divided.

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7. Evidently, the Court below has not doubted the genuineness of the Will-Ex.B.4 and a finding of fact was also on record that they were executed by Rajaiah and the only reason for ignoring all the Wills is for the reason that Rajaiah has already conveyed the properties under Exs.A.6 and A.7. So far as item No.1 of the plaint ‘A’ schedule is concerned, Ac.0.39 cents only was conveyed and the remaining Ac.0.39 cents is available. As per Ex.B.4, this property shall be shared by the defendants 1 and 2. The Courts below have rightly ignored Ex.B.1 as it is stated to be under suspicious circumstance. D.Ws.6 to 8 were examined to prove the alleged Will-Ex.B.4 and the appellate Court also accepted the evidence. Taking into consideration the Wills-Exs.B.2 and B.4 the learned appellate Judge has granted share to D.1 and D.2 in the Ac.0.39 cents in item No.1 of plaint ‘A’ schedule. Therefore, as per the material available on record, there is no substantial question of law involved and the judgment of the Courts below is based on proper appreciation of fact and reasons. The plaintiff could not show as to how Ex.B.4 Will is not enforceable.

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8. Therefore, I do not find any substantial question of law involved and both the Second Appeals are dismissed at the stage of admission. No costs. Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.

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_________________________________ JUSTICE N.R.L. NAGESWARA RAO

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13.08.2012 vjl

Smt. Bale. Sattemma v. Smt. Nepala Manikyam

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Smt. Bale. Sattemma v. Smt. Nepala Manikyam

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