A daughter's partition claim concerned whether her father's properties were self-acquired under a Will or ancestral. The court upheld their self-acquired character and her one-seventh share, denied a share to the daughter who had relinquished it, and dismissed the appeal, confirming the partition decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY APPEAL SUIT No.1639 of 1996
JUDGMENT:
The defendants in O.S.No.76 of 1985 on the file of the Subordinate Judge at Tanuku, West Godavari District, preferred this appeal against the judgment and decree dated 23.03.1995.
2. During pendency of the appeal, the 1st defendant died. Defendants 2 and 3, who are the L.Rs. of the deceased 1st defendant, are already on record and M.V.Srikanth is impleaded as 5th appellant being one of the legal heirs of the deceased 1st defendant vide orders in A.S.M.P.No.1676 of 2006 dated 19.09.2006.
3. The appellants were the defendants and the respondent was the plaintiff and they will hereinafter be referred to as plaintiff and defendants for convenience.
4. The plaintiff filed the suit for partition of plaint schedule property into “six” or “seven” equal shares and allotment of one such share to her, for delivery of vacant possession of the same and also for past profits of Rs.10,500/- with interest and future profits, alleging that she and defendant Nos.2 to 5 are the children of the 1st defendant and Venkata Subbarao who died intestate leaving behind him the defendants and the plaintiff and late Surya Bhagavanulu as Class-I heirs under Hindu Succession Act to succeed his estate. Surya Bhagavanulu, the second son, died unmarried in the year 1990. The plaint schedule property is the self acquired property of late Venkata Subbarao. Consequent upon the death of Venkata Subbarao, his widow, the 1st defendant, sons and daughters inherited the property in equal shares. Therefore, the plaintiff is entitled to 1/7th share in the entire estate of Venkata Subbarao.
i) Due to death of Surya Bhagavanulu, the 1st defendant became entitled to 2/7th share, as she is the sole heir to her. The 5th defendant relinquished her right in the property. If that is true, the plaintiff is entitled to 1/6th share in the property and the 1st defendant is entitled to 1/3rd share in the property.
ii) The defendants 1 to 4 have been enjoying the property, as they are residents of Cherukuwada village where a major portion of the plaint schedule property is situated. The plaintiff and the defendants are deemed to be in joint possession and enjoyment of the plaint schedule property. The defendants 1 to 4 did not account for the profits realized from the schedule property and did not pay 1/6th or 1/7th share to the plaintiff. Therefore, she claimed profits for the years 1982 to 1985.
iii) The schedule land is a double crop wet land and the net produce is about 20 bags per acre and each bag costs Rs.100/-. Therefore, the plaintiff is entitled to profits as per the prevailing rate during those years and prayed to pass a preliminary decree for partition of the plaint schedule property into six or seven equal shares and for allotment of one such share to her, for delivery of vacant possession of the same, and for payment of past and future profits.
5. The 2nd defendant filed a written statement admitting the relationship between the plaintiff and the defendants and the death of Surya Bhagavanulu on 18.02.1979. So also the death of Venkata Subbarao, father of the plaintiff and the defendants 2 to 5 on 04.09.1971 intestate. The defendants admitted the nature of the property while denying that the plaint schedule property is the self acquired property of Venkata Subbarao. It is further contended that the
5th defendant relinquished her undivided interest in the joint family property by a registered relinquishment deed dated 27.12.1974 after receiving consideration of Rs.1,500/-. Thus, the plaintiff had any right, title or interest in any portion of the existing family property described in the schedule.
i) The plaintiff included various extents of property which are not available for partition. The defendants 1 to 4 are entitled to enjoy the property, as per the Hindu Succession Act and being Class-I heir, more particularly, Item Nos.1 to 6 of the plaint schedule property. Item No.7 of the plaint schedule property was already settled in favour of the 5th defendant by a registered gift deed dated 29.12.1974. The rest of Item Nos.8 to 17 are not available for partition, but they are also included in the plaint schedule claiming partition of those items unnecessarily. Hence, the plaintiff’s claim in respect of Item Nos.7 to 17 is untenable.
ii) The 2nd defendant admitted about the enjoyment of Item Nos.1 to 6 and 18 of the plaint schedule property by the defendants 1 to 4 in their own right. The plaintiff was never in possession and enjoyment of the property and that the enjoyment of Item Nos.1 to 6 and 18 by the defendants 1 to 4 is open, public and notorious to the knowledge of the plaintiff also. Thus, the plaintiff was excluded from enjoying the property long back.
iii) It is further contended that the plaintiff received Rs.1,000/- on 17.03.1976 and executed a sale deed in respect of her undivided interest in the joint family property and signed on the said sale deed duly attested and it was engrossed on a non-judicial stamp. But, the same was not registered due to calamities and disturbances in the family. As the defendants 1 to 4 are in possession and enjoyment of
the property for more than 12 years openly and notoriously, the plaintiff lost her right, if any, in the schedule property. The plaintiff is not entitled to claim either past or future profits for any period.
iv) Finally, it is contended that an extent of Ac.0.46 cents was acquired by the Government under the Land Acquisition Act (for short “the Act”). The defendants 1 to 4 have drawn compensation and a part of the compensation is lying in deposit in the Court, and though the plaintiff is not entitled to receive any portion of consideration, her share is deposited in the Court. It is further contended that the Court fee paid on the plaint is not correct, as the plaintiff and the defendants were not in joint possession and enjoyment of the property at any time, and prayed to dismiss the suit.
6. The defendants 1, 3 and 4 filed a memo adopting the written statement filed by the 2nd defendant.
7. Later, the 2nd defendant amended the written statement as per orders in I.A.No.761 of 1992 dated 16.09.1992 deleting the word “also” in 8th line of para No.2 of the written statement and adding the word “not”, thereby the total defence set up by the 2nd defendant is changed and, consequently, denied the nature of property while contending that the schedule property is not the self acquired property of late Venkata Subbarao, father of the plaintiff and the defendants 2 to 5. Thus, it is contended that the plaint schedule property is the ancestral property of Venkata Subbarao.
8. The 5th defendant filed written statement denying execution of any relinquishment deed. She claimed right in the joint family property along with the plaintiff and prayed for dismissal of the suit.
9. Basing on the above pleadings, the trial Court framed the
following issues:
10. During the course of trial, on her behalf, the plaintiff examined herself as P.W.1 and got marked Exs.A.1 to A.14. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to B.17 were marked.
11. Upon hearing the argument of both the learned counsel and considering the oral and documentary evidence on record, the trial Court passed a preliminary decree for partition of Items 1 to 7 and 18 of the plaint schedule property into seven equal shares, holding that the 1st defendant is entitled to 2/7th share, defendants 2 to 4 are entitled to 1/7th share each and also 1/3rd share in 1/7th share of the 5th defendant and that both past and future profits can be ascertained on a separate application and enquiry therein. Aggrieved by the decree and judgment of the trial Court, the defendants preferred the present appeal on various grounds.
12. The main contentions raised in the grounds of appeal are that:
a) The findings of the trial Court on issue Nos.1, 3, 4, 7 and 8 are not based on any evidence and they are contrary to law.
b) The trial Court did not frame any issue regarding the nature of Items 1 to 7 and 18 of the plaint schedule property, but erroneously recorded a finding that Item Nos.1 to 7 and 18 are the self acquired properties of late Venkata Subbarao and the said fact is proved by Ex.B.3, a copy of R.S.R. pertaining to Item Nos.3, 4 and 6, but the trial Court did not decide the nature of property framing an issue.
c) The trial Court did not consider Ex.B.4, lease deed dated 15.08.1992, which establishes that Item Nos.2 and 5 are the ancestral properties and that the Will allegedly executed by the plaintiff’s grandfather dated 22.07.1960 is not proved, in accordance with law, and finally, prayed to set aside the decree and judgment of the trial Court.
13. During the course of arguments, Sri K.V. Satyanarayana, learned counsel for the defendants/appellants mainly contended that the evidence on record is not sufficient to hold that Item Nos.1 to 7 and 18 of the plaint schedule property are the self acquired properties of Venkata Subbarao, since the Will allegedly executed by Viswanatham in favour of Venkata Subbarao, father of the plaintiff and defendants 2 to 5 was not established, in accordance with law, special rules of evidence under Section 68 of the Indian Evidence Act, and Section 63 of the Indian Succession Act, dehors the Will, the schedule property is deemed to be the ancestral property devolved on Venkata Subbarao, as such the defendants 2 to 5 became co-parceners along with Venkata Subbarao, thereby the plaintiff at best is entitled to a share in the share of her father Venkata Subbarao equally along with the defendants 2 to 5. But, the trial Court without framing any issue,
basing on the findings of the Subordinate Judge’s Court in the reference under Sections 30 and 31 of the Act and believing the contention of the plaintiff, decreed the suit erroneously.
14. The main contention of the defendants’ counsel is that there is no admission about the nature of the property, in view of amendment to the written statement, thereby the plaintiff is not entitled to claim either 1/6th or 1/7th share in the schedule property, but the trial Court did not consider the several pleas and evidence on record, and without framing any issue about the Will and the nature of the property, recorded a finding, without affording any opportunity to the parties to adduce evidence either to prove the Will or disprove the same and nature of the property. Thus, committed a grave error in decreeing the suit and prayed to dismiss the suit, allowing this appeal setting aside the decree and judgment of the trial Court dated 23.03.1995. The learned counsel for the defendants placed reliance on two judgments reported in Sita Ram Bhau Patil Vs. Ramachandra Nago Patil (dead) by L.Rs. and anothe r[1] and Bashyam Anjamma and another Vs. Narra Satyanarayana (died) by L.Rs and others[2] .
15. Per contra, the learned counsel for the respondent/plaintiff,
Sri C. Ramachandra Raju, would contend that when the defendants admitted that the schedule property is the self acquired property initially, they are estopped to contend that Item Nos.1 to 6 and 18 are the ancestral properties of Venkata Subbarao, father of the plaintiff and the defendants 2 to 5 and the amendment in the written statement ought not to have been allowed by the trial Court, as it would take away the valuable right that accrued to the plaintiff to claim relief in the suit. It is further contended that based on the findings of the Subordinate Judge’s Court in the reference under Sections 30 and 31
of the Land Acquisition Act, the trial Court rightly concluded that the schedule property is separate or self acquired property of Venkata Subbarao, as he succeeded the property as a legatee under the Will, original of Ex.A.1. When the Will is not disputed, the question of the plaintiff proving the due execution of the Will to dispel the suspicious circumstances does not arise, and apart from that, the defendants did not raise any specific plea denying the execution of the Will original of Ex.A.1, or pointing out any of the suspicious circumstances. In the absence of any specific plea, the plaintiff need not prove the due execution of the Will. In support of his contention, he placed reliance on a judgment of a Division Bench of this Court reported in Valluri Jaganmohini Seetharama Lakshmi and another Vs. Kopparthi Ramachandra Rao and others[3] . On the strength of the principal laid down in the above judgment, the plaintiff need not prove the due execution of the Will. In view of the admission of the defendants, the evidence available on record is suffice to hold that the schedule property is the self acquired property of Venkata Subbarao, father of the plaintiff and the defendants 2 to 5, being a legatee under the Will executed by his father Viswanatham under the original of Ex.A.1. Thus, supported the decree and judgment of the trial Court in all respects, and prayed to dismiss the appeal confirming the decree and judgment of the trial Court.
16. Upon considering rival contentions and perusing the material available on record, the points that arise for consideration are:
POINT NO.1:
17. The plaintiff’s claim is totally based on the nature of the property, as she contended that the schedule property is the self acquired property of her father Venkata Subbarao. Consequent upon the death of Venkata Subbarao, his wife, sons and daughters succeeded his estate equally. Thereby, she is entitled to claim equal share in the property.
18. Whereas, the 2nd defendant filed a written statement initially admitting that the schedule property is the self acquired property of late Venkata Subbarao, father of the plaintiff and the defendants 2 to 5. The judicial admission in para 2 of the written statement in line Nos.8 to 10 is extracted hereunder for better appreciation:
“It is also true that the plaint schedule property is the self acquired property of late Venkata Subbarao, father of the plaintiff.
However, the said admission in the written statement extracted above was withdrawn by the 2nd defendant amending the written statement vide orders in I.A.No.1761 of 1992 dated 16.09.1992 substituting the word “not” for the word “also”, thereby the plea of the 2nd defendant is totally changed. Thus, by virtue of the amendment, the 2nd defendant changed his total defence. Initially, he admitted that the schedule property is the self acquired property, but on account of the amendment, he denied the nature of the property i.e., the self acquisition of Venkata Subbarao. No revision is preferred against the order in I.A.No.1761 of 1992 dated 16.09.1992. Though the amendment would change the nature of defence and such amendment would take away the valuable right that accrued to the plaintiff, once the order in I.A.No.1761 of 1992 dated 16.09.1992 has become final, this Court need not consider the legality of the order in I.A.No.1761 of
1992 dated 16.09.1992, and as on today, the defence of the 2nd defendant and the other defendants, who field a memo adopting the written statement of the 2nd defendant, is that the schedule property is not the self acquired property of Venkata Subbarao and it is only the ancestral property.
19. A perusal of the entire plaint would reveal that the plaintiff did not set up the Will under the original of Ex.A.1, except contending that the schedule property is the self acquired property of Venkata Subbarao, her father. How he acquired the property was not pleaded anywhere in the plaint, but strangely, original of Ex.A.1 was introduced during evidence. If the plaintiff set up the Will allegedly executed by Viswanatham, grand-father of the plaintiff and the defendants 2 to 5, in favour of Venkata Subbarao, the defendants would have an opportunity of denying the execution of the Will and nature of the schedule property. In the absence of any plea regarding the execution of the Will by Viswanatham in favour of Venkata Subbarao, the defendants need not deny the execution specifically in the written statement. At best, the defendants may deny the nature of acquisition of the property by Venkata Subbarao. Thus, the defendants 1 to 4 denied the nature of acquisition contending that the schedule property is not the self acquired property of late Venkata Subbarao. In such a case, the trial Court is not supposed to frame any issue with regard to the validity of the Will, but bound to decide the nature of acquisition of the property by Venkata Subbarao and record a finding whether the schedule property is the self acquired or ancestral property of late Venkata Subbarao, father of the plaintiff and the defendants 2 to 5.
20. The initial onus of proof is on the plaintiff to prove that the schedule property is the self acquired property of Venkata Subbarao, in view of Sections 101 and 102 of the Indian Evidence Act. If the
plaintiff is able to discharge her initial onus of proof, the burden will shift on to the defendants to rebut the same or disprove the same.
21. To substantiate her claim, the plaintiff examined herself as P.W.1 and got marked several documents to establish that the schedule property is the self acquired property of late Venkata Subbarao, besides relying upon various admissions made by D.W.1 in his evidence. In her examination in chief, P.W.1 introduced Ex.A.1 Will dated 22.07.1960 executed by her grand-father in favour of her father. The same was marked subject to proof. On the strength of the said Will, the plaintiff contended that the property was inherited under testamentary disposition by Venkata Subbarao i.e., Ex.A.1, it is separate or self acquired property of Venkata Subbarao. Thus, the basis for her claim is original of Ex.A.1.
22. In the cross-examination, nothing has been elicited to disprove her contention. However, in the cross-examination, from line No.6 onwards, P.W.1 admitted that all the schedule properties belonged to her grand-father and his brothers divided the property of his grandfather and did not file any document to show that Item Nos.10 and 12 of the plaint schedule property are in possession and enjoyment of the family members. This evidentiary admission of the plaintiff/P.W.1 destroyed her entire plea that the schedule property was devolved upon Venkata Subbarao under testamentary disposition, original of Ex.A.1.
23. She relied on a certified copy of Ex.A.1 Will allegedly executed by Viswanatham, grand-father of the plaintiff and the defendants 2 to 5, in favour of Venkata Subbarao. But, this document was not pleaded in the evidence and no issue was framed regarding the genuineness of the Will. Ex.A.2 is the relinquishment deed executed by the 5th defendant in favour of the defendants 2 to 4 and the deceased Surya
Bhagavanulu. In the said document, the nature of the property was not mentioned, but the 5th defendant relinquished her share in the entire property receiving Rs.1,500/-. Ex.A.3 is the gift deed executed in favour of the 5th defendant by the 1st defendant and others. Both the documents are not much relevant for deciding the real controversy between the parties regarding the nature of acquisition of property by Venkata Subbarao. The crucial documents relied upon by the plaintiff is Exs.A.4 to A.12. Admittedly, Ac.0.46 cents of land was acquired by the Government and a reference was made under Sections 30 and 31 of the Act to the Subordinate Judge’s Court, Tanuku. The reference is registered as O.P.No.76 of 1977. Section 30 of the Act deals with the powers and procedure of Court on reference as to determination of compensation and apportionment or division of compensation between the claimants if there are more than one as such. Where the parties agree before the Collector regarding apportionment, Section 29 enjoins such apportionment to be incorporated in the award. If there is any dispute with regard to apportionment, the Collector has to decide the compensation payable and pass an award. The Collector may refer such dispute to the decision of the Court under Section 30 of the Act. Thus, Section 30 confers power on the Collector to make a reference, when there is a dispute with regard to division or apportionment of compensation awarded for the land acquired.
24. Section 31 of the Act mandates deposit of compensation of amount into Court, when a reference is made under Section 30(1) of the Act.
25. As there is a dispute among the claimants, the Collector exercised his power under Section 30(1) of the Act and deposited the compensation amount, in compliance of Section 31 of the Act in the Subordinate Judge’s Court, Kovvur, while referring the matter for
apportionment or division of the compensation.
26. While the matters stood thus, the 4th defendant filed I.A.No.138 of 1978 in O.P.No.76 of 1977 which is marked as Ex.A.4, requesting the Court to implead the petitioners 2 and 3/1st defendant and plaintiff in the said I.A. as respondents 5 and 6 in the O.P. and decide the apportionment or division of compensation. In the affidavit, the 4th defendant clearly stated that the acquired land was inherited by his father (Venkata Subbarao) by a registered Will dated 22.07.1960, as a legatee under the Will and his father Venkata Subbarao died intestate and that the 4th defendant, his brothers, his mother and sisters succeeded the estate of Venkata Subbarao, and finally, requested to implead the 1st defendant and the plaintiff herein as respondents 5 and 6 in the O.P. The contents of the affidavit filed along with the petition in I.A.No.138 of 1978 in O.P.No.76 of 1977 marked as Ex.A.4 clinchingly establish that the land acquired was succeeded by Venkata Subbarao under a testamentary disposition original of Ex.A.1 dated 22.07.1960. Thereafter, the 2nd defendant filed his claim statement before the Subordinate Judge’s Court and made several admissions about the Will executed by his grand-father Viswanatham in favour of his father.
27. The Specific judicial admission made in the earlier proceedings is extracted hereunder for better appreciation and the admission is as follows:
“The acquired property bearing R.S.No.271/4 an extent of 33 cents and R.S.No.271/7 Ac.0.13 cents situated in the village of Cherukuvada originally belongs to grandfather of this respondent, Sri Madhira Viswanatham. During his lifetime, the said M.Viswanadham executed his last Will dated 22.07.1960 bequeathing the said property to the father of the respondent Sri M.Venkata Subbarao. The said Will was executed in a sound and
disposing state of mind and it is the last Will and it was duly registered. Thereafter, the said M.Viswanatham died. In pursuance of the said Will, the father of this respondent took possession of the property, and thereafter, he died intestate in or about 1961 leaving behind his four sons, two daughters and wife as Class-I heirs. Thus, the respondent along with his brothers, sisters and mother are entitled to the property acquired.”
28. In view of the judicial admission in the claim statement filed in O.P.No.76 of 1977 by the 2nd defendant, it is clear that originally, the property belonged to Viswanatham, grand-father of the plaintiff and the defendants 2 to 5, and he executed a Will in favour of their father Venkata Subbarao who succeeded the same under the original of Ex.A.1. The respondents 2 to 4 in the O.P.No.76 of 1977 i.e., the defendants 3 to 5 and the plaintiff filed a memo dated 24.12.1977 adopting the claim statement filed by the 2nd defendant before the Subordinate Judge’s Court, Kovvur, a certified copy of which is marked as Ex.A.6. The contents of the claim statement and the affidavit filed in I.A. marked as Exs.A.5 and A.4 respectively proved that his father Venkata Subbarao succeeded the property as a legatee under the Will executed by Viswanatham under the original of Ex.A.1. The 6th respondent, the plaintiff herein, filed a separate counter in O.P.No.76 of 1977. In para 2 of the counter, she specifically contended that the schedule property is the self acquired property of late Madhira Venkata Subbarao, and after his death, the 6th respondent, the plaintiff herein, is entitled to 1/7th share in the schedule property as one of the Class-I heirs and it is marked as Ex.A.8. The 5th respondent, the 1st defendant herein, also filed a separate counter. In para 2 of the counter, it is averred that M. Venkata Subbarao got the property under a registered Will dated 22.07.1960. As such, the said property
becomes the self acquired property of late M. Venkata Subbarao. After his death, the 6th respondent became entitled to 1/7th share being Class-I heir. Ex.A.9 is a counter filed by the 1st defendant. Ex.A.10 is the order passed by the Subordinate Judge’s Court, Tanuku, dated 03.02.1979. The Subordinate Judge, after referring the evidence of Madhira Venkata Ramalingeswara Viswanadham, 2nd defendant herein, and Madhira Satyavathamma, 1st defendant herein, marked Ex.B.1 which is equivalent to Ex.A.1 and Ex.B.2 relinquishment deed executed by Akella Kota Satyavathi, 5th defendant herein, and the Subordinate Judge recorded a finding that the compensation is to be divided into seven equal shares and the operative portion of the order in para 7 is as follows:
“In the result, I declare all the claimants are legally entitled to the compensation deposited in seven equal shares. Since K.Sathavathi had relinquished her 1/7th share, that share also her brothers will be entitled.”
The order passed by the Subordinate Judge in O.P.No.76 of 1977 is marked as Ex.A.10. This order has become final, as no appeal is preferred against the same. Ex.A.11 is the cheque petition filed by the plaintiff herein for withdrawal of her share of compensation. Ex.A.12 is another cheque petition filed by the 2nd defendant for issue of a cheque for 6/7th share in his favour.
29. As seen from Exs.A.4 to A.12, the defendants admitted about the execution of the Will by Viswanatham in favour of Venkata Subbarao and invited an order from Subordinate Judge’s Court for division or apportionment of the compensation in the reference under Section 30(1) of the Act and withdrawn their due shares as awarded under the original of Ex.A.10 by filing cheque petitions under Exs.A.11 and A.12. Thus, the order in O.P.No.76 of 1977 remained unchallenged. When
the defendants admitted that the property acquired by the Government is the self acquired property of late Venkata Subbarao, they are estopped to contend that it is not the self acquired property, in the suit filed by the plaintiff having allowed the plaintiff to withdraw her 1/7th share in the compensation deposited for the acquired property, under Section 115 of the Evidence Act. Therefore, the material on record, more particularly, Exs.A.4 to A.12 established that Items 1 to 7 and 18 of the plaint schedule property are the self acquired properties of Venkata Subbarao, father of the plaintiff and the defendants 2 to 5. If really, the property is not the self acquired property of Venkata Subbarao, the question of filing a claim statement and counters in the O.P.No.76 of 1977 and withdrawing the amount deposited by the Land Acquisition Officer to the credit of the O.P. under the reference under Section 30(1) does not arise. The affidavits and counter claims filed in the O.P. are positive proof to establish that the schedule property is separate or self acquired property of Venkata Subbarao.
30. In fact, the 2nd defendant filed his written statement initially admitting that the property is the self acquired property, and later, withdrawn the admission by amending the written statement substituting the word “not” for the word “also” in para 2 of the written statement vide orders in I.A.No.761 of 1992 dated 16.09.1992. But, the trial Court did not frame any issue, even after amendment of the written statement. However, the order in the I.A. attained finality, though it amounts to withdrawing his admission.
31. The 2nd defendant himself was examined as D.W.1. He denied the contention of the plaintiff that the schedule property is the self acquired property of Venkata Subbarao and admitted that his father Venkata Subbarao and grand-father executed sale deeds Exs.B. 7 to B.11 in favour of third parties in respect of Items 8, 9 10 and 12-A. The
recitals of Ex.B.7 would go to show that Venkata Subbarao and his sons executed a sale deed and the source of title to the property was not mentioned. Ex.B.7 is the certified copy of a registered sale deed executed by Viswanatham, father of Venkata Subbarao, and Venkata Subbarao jointly, but this is not relevant for deciding the nature of the property. Exs.B.8 to 10 are not relevant for deciding the nature of acquisition. However, Ex.B.11 is the sale deed executed by Venkata Subbarao and his sons being minors represented by their guardian in favour of third parties and in page No.3 of this document, the source of title to the property is mentioned as Will dated 22.07.1960, and thereby, Venkata Subbarao became owner of the property as a legatee under the Will. Even if the contents of Ex.B.11 are accepted, the property is the self acquired property of Viswanatham. However, he joined his sons during their minority as executants and executed the registered sale deed on their behalf also. In the cross-examination, D.W.1 denied the entire land acquisition proceedings marked as Exs.A.4 to A.12 and admitted in the cross examination at page No.4 as follows:
“I know my paternal grand-father late Viswandham. My father has got two borthers by name Narasimham and Yajnanna. My father and his brothers are no more. I do not know what happened to the original of Ex.A.2. It is true that my father got right over the properties through the original of Ex.A.1 but not by way of inheritance. I do not know my father’s brother Narasimham, his wife is alive. I do not know whether she is also beneficiary under Ex.A.1.”
32. This admission is suffice to believe that Venkata Subbarao, father of the plaintiff and the defendants 2 to 5, succeeded the property as a legatee under the Will, original of Ex.A.1 and not by way of inheritance. Apart from that, D.W.1 admitted in the last sentence of cross-examination dated 11.08.1994 that the contents of original of
Ex.A.1 are true and correct. Later, he was recalled for further examination in chief by order dated 07.09.1994 in I.A.No.1345 of 1994 and in further chief examination he got marked Exs.B.13 and B.14. The gift deed executed by his grand-father in favour of the 5th defendant was marked as Ex.B.15, but it is not much relevant for deciding the real controversy.
33. The crucial admissions made by D.W.1 in his evidence though not conclusive proof, those admissions estops D.W.1 from contending otherwise. Unless explained the admissions made in the land acquisition proceedings marked as Exs.A.4 to A.12, as to how those admissions were made in writing, they are binding on the defendants. An admission though not a conclusive proof of fact, it estops the party who made such admission and the person, who made such admission, cannot resile in the subsequent proceedings. According to Section 58 of the Evidence Act, an admission made in writing need not be proved. Thus, the cumulative effect of the evidentiary admission and judicial admission under Exs.A.4 to A.12 binds the defendants, and thereby, they are estopped to contend that Items 1 to 7 and 18 are not the self acquired properties of late Venkata Subbarao, in the present suit, having admitted the same in the land acquisition proceedings i.e., O.P.No.76 of 1977, under Section 115 of the Evidence Act.
34. It is settled law that admission is best piece of evidence in view of the principle laid down in Sita Ram Bhau Patil’s case (1 supra) wherein it was held that:-
“Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an
estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission. In view of the above, the law on the admissions can be summarised to the effect that admission made by a party though not conclusive, is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be erroneous. Even if the admission is not conclusive it may operate as an estoppel. Law requires that an opportunity be given to the person who has made admission under cross-examination to tender his explanation and clarify the point on the question of admission. Failure of a party to prove its defence does not amount to admission, nor it can reverse or discharge the burden of proof of the Plaintiff.”
In another decision reported in Nagubai Ammal and others Vs.
B. Shama Rao and others[4] wherein the Apex Court held that:
“Admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief. While deciding the said case reliance has been placed upon the judgment in Slatterie v. Pooley, wherein it had been observed "What a party himself admits to be true, may reasonably be presumed to be so."
35. In view of the principles laid down in the above judgments, the admission is binding. On the strength of judicial admission, the Court can safely conclude that the plaint schedule property is the self
acquired property of Venkata Subbarao.
36. In the earlier proceedings in O.P.No.76 of 1977, the plaintiff and the defendants are the respondents and they did not set up an adverse claim against one and another and specifically contended that they are entitled to claim equal share i.e., 1/7th share. However, in view of execution of relinquishment deed by the 5th defendant, the defendants 2 to 4 became entitled to the share of the 5th defendant and the order under original of Ex.A.10 became final. In the said proceedings, no issue was raised as to the rights, but admitted about their 1/7th share in the compensation amount deposited in the proceedings under Section 30(1) of the Act. However, the Subordinate Judge’s Court, Tanuku, passed an order under the original of Ex.A.11. Thus, in the earlier proceedings, no issue regarding the rights of the plaintiff and the defendants was raised and decided by the Subordinate Judge’s Court. However, the trial Court in the present suit applied the principle of res judicata under Section 11 of CPC, placing reliance on several judgments and concluded that the defence of the defendants is barred by principles of res judicata. In fact, no issue was raised in the earlier proceedings among the respondents therein being the claimants of compensation and the Subordinate Judge was asked to apportion or divide the amount of compensation kept in deposit under Section 30(1) of the Act. Hence, I am doubtful about the applicability of the principles of res judicata, as no issue had arisen in the earlier proceedings which is directly and substantially in issue before this Court.
37. Viewed from any angle, it is evident that the Items 1 to 7 and 18 of the plaint schedule property are available and those Items were acquired by Venkata Subbarao as a legatee under the original of Ex.A.1, as such, it is the self acquired property of Venkata Subbarao.
38. The learned counsel for the defendants mainly contended that the Will is not proved, dehors the Will the property is the only ancestral property, thereby the plaintiff is entitled to a share in the share of her father, who was a co-parcener consequent upon his death.
39. No doubt, the Will is a testamentary disposition and the proof of it is under special rules of evidence under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act and the said Will is to be proved by examining any one of the attestors of the Will, since it is a compulsorily attestable document. But, no attestor was examined, and thereby, Ex.A.1 cannot be looked into.
40. The learned counsel for the plaintiff while contending that when the Will is not in question, the plaintiff need not prove the due execution of the Will strictly in compliance of Section 68 of the Indian Evidence Act, placed reliance on the judgment of a Division Bench of this Court in Valluri Jaganmohini’s case (3 supra) wherein it is held as follows:
“An admission in pleadings as to execution of document dispenses with the necessity of proof of execution even though such document was one required by law to be in certain form or proved in a certain way.
As the Will is a document required by law to be attested, it shall not be used as evidence until at least one attesting witness is examined. That is only when either plaintiff seeks for a relief propounding a Will or when the defendant raises a specific plea setting up the Will as a defence to the claim made by the plaintiff. But, where the plaintiff himself accepts the execution of the Will, but chooses to contest only on legal aspects touching upon the validity of the bequeathment of certain properties, Section 68 of the Indian Evidence Act does not come into play and is totally inapplicable. The words ‘it shall not be used as evidence’ contained under Section 68 of the Indian Evidence Act, are very significant while considering this aspect. In the instant case, it is not that the defendant sought to use the Will as defence, but on the other hand, it is the plaintiff, who himself
has filed the Will admitting the execution, but questioning the legal validity of the same in so far as certain properties are concerned. In that view of the matter, Section 58 of the Indian Evidence Act is applicable for the instant case and Section 68 is totally inapplicable.”
41. If the principle laid down in the above judgment is applied to the facts of the present case, the plaintiff need not examine any of the attestors of the Will in compliance of Section 68 of the Indian Evidence Act. Added to that, the plaintiff’s claim is based on Exs.A.4 to A.12 and marking Ex.A.1 is only an additional link to prove her contention. When the plaintiff did not rely on the Will, question of denial does not arise, thereby no issue would arise. In view of Order XIV Rule 1 of CPC, the Court need not record any finding beyond pleadings. Apart from that, Exs.A.4 to A.12 and the evidentiary admission in the evidence of D.W.1 extracted above are suffice to believe that Viswanatham, grand-father of the plaintiff and the defendants 2 to 5, executed Will in favour of Venkata Subbarao, father of the plaintiff and the defendants 2 to 5, and Venkata Subbarao being the legatee under the Will original of Ex.A.1 succeeded the property, as such, Items 1 to 7 and 18 of plaint schedule property are the self acquired properties of Venkata Subbarao but not the ancestral properties. Merely because execution of documents in favour of third parties by Venkata Subbarao on his behalf and on behalf of his minor children itself would not change the nature of acquisition. Therefore, the findings of the trial Court are totally based on legal evidence on record and I find no perversity in the conclusions arrived at by the trial Court that the schedule property is the self acquired property of Venkata Subbarao. 42. One of the contentions of the learned counsel for the defendants is that an admission is not a conclusive proof and such admission can be proved against a person who made it but not against the other
persons. He placed reliance on a judgment of the Apex Court in Sita Ram Bhau Patil’s cae (1 supra). In para 16, the Apex Court held as under:
“The provisions in the Indian Evidence Act that ‘admission is not conclusive proof’ are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the evidence Act and if it is to be used against the party who has made it, “it is sound that if a witness is under crossexamination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute.”
43. In the case on hand, all the contents of the documents marked as Exs.A.4 to A.12 were put to D.W.1 in his cross-examination, but he did not explain under what circumstances, he made such admission in Exs.A.4 to A.12 in the proceedings under the Land Acquisition Act. The learned counsel for the defendants suggested to D.W.1 that no compensation was awarded to the 5th defendant and she was living with them, but the suggestion was denied by D.W.1. Similarly, in the cross-examination in 2nd para, several suggestions were put to D.W.1 that they filed separate petitions to withdraw the compensation before the Subordinate Judge’s Court and the claim made by the 2nd defendant in O.P.No.76 of 1977 and affidavit filed by him. But, no explanation was given under what circumstances D.W.1 made such admissions in the land acquisition proceedings. Though sufficient opportunity was provided to D.W.1 to explain the admission made in Exs.A.4 to A.12, he failed to give any explanation as to the admissions. The same can be used as evidence against him, and on
the strength of said admissions, the Court can come to a conclusion that Items 1 to 7 and 18 of the plaint schedule property are the self acquired properties of Venkata Subbarao being a legatee under the Will executed by Viswanatham under the original of Ex.A.1. The principle laid down by the Apex Court in the judgment is of no assistance to the defendants to substantiate their contentions.
44. On overall consideration of the material evidence available on record, I find no legal infirmity warranting interference with the findings of the trial Court, as the trial Court recorded its reasons for the conclusions based on legal evidence available on record. Hence, the findings of the trial Court are hereby confirmed, holding that the Items 1 to 7 and 18 of the plaint schedule plaint schedule property is the self acquired property of Venkata Subbarao, father of the plaintiff and the defendants 2 to 5. Accordingly, point No1 is held in favour of the plaintiff and against the defendants.
POINT NO.2:
45. The plaintiff claimed 1/6th or 1/7th share in the entire property as the schedule property is the separate property of her father Venkata Subbarao. But the defendants denied the share of the plaintiff contending that she is entitled to claim a share in the share of her father as Items 1 to 7 and 18 of the plaint schedule property are the properties of Venkata Subbarao. According to my finding on point No.1, the Items 1 to 7 and 18 of the plaint schedule property are the self acquired properties of Venkata Subbarao who succeeded the same as a legatee under the Will original of Ex.A.1. The plaintiff is entitled to a share on par with the defendants, since the plaintiff and the defendants 2 to 5 are not entitled to claim partition of the property during the lifetime of Venkata Subbarao. Admittedly, Venkata Subbarao blessed with four sons and two daughters and Surya
Bhagavanulu died, thereby the share of the deceased son devolved upon the 1st defendant and whereas the 5th defendant relinquished her right of share in favour of the defendants 2 to 4 and she was denied share of compensation under the original of Ex.A.11 by the Senior Civil Judge in O.P.No.76 of 1977 and it attained finality. Therefore, the 5th defendant, who relinquished her right of share in favour of the defendants 2 to 4, is not entitled to claim any share. Consequently, the 1st defendant is entitled to 1/7th share and the defendants 2 to 4 are entitled to 1/7th share each + 1/21st -share each which comes to 1/28th share each, whereas the plaintiff is entitled to 1/7th share in Items 1 to 7 and 18 of the plaint schedule property. Thus, the trial Court rightly granted a decree in favour of the plaintiff disbelieving the defence set up by the defendants. Even after reappraisal of the entire evidence with reference to law, I find no illegality in the decree and judgment passed by the trial Court warranting interference of this Court. Hence, the findings of the trial Court are hereby confirmed. The point is answered in favour of the plaintiff and against the defendants.
47. In the result, the Appeal Suit is dismissed confirming the decree and judgment of the trial Court.
In consequence, miscellaneous petitions, if any, pending in the appeal shall stand dismissed. No order as to costs.
__________________________________ M.SATYANARAYANA MURTHY, J
6th December, 2014 cbs
THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY
Appeal Suit No.1639 of 1996
6th December, 2014
cbs
[1] AIR 1977 SC 1712 [2] 2013(5) ALD 788 [3] 1994 (1) ALT 217 (D.B.) [4] AIR 1956 SC 593
3 issues framed by the court
Were Items 1 to 7 and 18 self-acquired properties obtained under a Will rather than ancestral properties?
Did the admissions dispense with examination of an attesting witness to the Will in this partition suit?
Were the plaintiff and the fifth defendant entitled to a one-seventh share in the properties?
Colour shows how this judgement treated each authority
Sita Ram Bhau Patil Vs. Ramachandra Nago Patil (dead) by L.Rs. and anotherApplied¶98
AIR 1977 SC 1712 · Who else cites this
Bashyam Anjamma and another Vs. Narra Satyanarayana (died) by L.Rs and othersReferred¶39
2013(5) ALD 788
Valluri Jaganmohini Seetharama Lakshmi and another Vs. Kopparthi Ramachandra Rao and othersApplied¶95
1994 (1) ALT 217 (D.B.)
Nagubai Ammal and others Vs. B. Shama Rao and othersRelied on¶82
AIR 1956 SC 593 · Who else cites this
9 provisions across 6 enactments
Madhira Satyavathamma
Madhira Venkata Ramalingeswara Viswanadham
M.V.Srikanth
Akella Kota Satyavathi
M.SATYANARAYANA MURTHY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
