Partly allowed

Kothuri Gundaiah, Adilabad v. Kothuri Vijaya Kumar and 11 Others

Telangana HC13 Sept 2023AS/706/2000

Case brief

AI extract

What is this about?

Appeal against dismissal of partition suit. High Court partly allowed appeal, holding that properties covered under Will deed are available for partition and granting 1/9th share therein, while confirming trial court's findings regarding other properties.

What did the court decide?

Findings of trial court regarding properties covered under Will deed set aside; properties under Will deed held available for partition; plaintiff and other defendants entitled to 1/9th share in item

Kothuri Gundaiah, Adilabad Vs Kothuri Vijaya Kumar and 11 Others — Partition | Telangana HC (2023)

¶1

[³²¹⁶ ]

¶2

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶3

WEDNESDAY,THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENry THREE

¶4

PRESENT

¶5

THE HONOURABLE SRI JUSTICE M.LAXMAN

¶6

APPEAL SUIT NO: 706 OF 2000

¶7

.^{Appeal under section 96 r/w Order 41 Rule 1 of CPC.,aggrievedby the} Judgment and Decree dated 17.01.2000 passed in O.S.No.6 of 1998 on the file of the Court of the Senior Civil Judge at Adilabad.

¶8

Between:

¶9

Kothuri Gundaiah, S/o Kothuri Lachanna, Employee ln Ginning and Agriculture R/o Itchoda (V), ltchoda (M), Adilabad District.

¶10

...AppellanUPlaintiff .

¶11

AND

¶12

1 Kothuri Vijaya Kumar, S/o K. Lachanna, (died^per LRs -17 to 20)

¶13

2 K. Ashok Kumar,, S/o K. Lachanna, Business R/o 4-13, ltchoda^(V), Mandal Itchoda, Adilabad Dist.

¶14

3 K. Ramesh Kumar, (Died) per LRs RR- 9 to 12) 4 K. Suresh Kumar, S/o K. Lachanna,^{(Died per} LRs RR-13 to¹⁶⁾

¶15

5 K. Anand Kumar,, S/o K. Lachanna, Business PJo 4-13, ltchoda^(V), Mandal Itchoda, Adilabad Dist.

¶16

6 K. Anusuya Bai,, Wio K. Lachanna, Household Rio 4-13,^{ltchoda(V), Mandal} Itchoda, Adilabad Dist.

¶17

7 P. Kamala Bai,, Wo P. Dinakar, Household C/o Dinaker Padibal,^R/o Digaress Town Tq., Digaress Dist. Yavathmal^(MS),

¶18

P. Manjula,, Wo Raghavendra, Household R/o Gangaram Complex, Opp Girls High School, Adilabad Dist.

¶19

Kathuri Sunitha, Wo. Late Ramesh Kumar, Occ Household

¶20

1 0. Kathuri Santosh, S/o. Late Ramesh Kumar Occ Business

¶21

Kathuri Sainath, S/o. Late Ramesh Kumar Occ Business

¶22

Bashathi Uma RAni, Wo. Bashathi Suman Occ Household C/o. Kathuri Santosh RR- 9 to^'12 are R/o. ltchoda Adilabad Dist.

¶23

¶24

(Respondents 9 to 1 2 are brought on record as LRs of deceased R-3 vide C.O. dt.30.9.13 in ASMP-247412012)

¶25

Kathuri Sai Leela, W/o. Kathuri Suresh Kumar (late), 50 yrs., Occ. House wife, R/o. 4-13, ltchoda Village, Mandal ltchoda, Adilabad Dis[rict.

¶26

14.A. Sagarika, W/o- A. Suresh, Age 24 yrs., Occ. House wife, R:/o. Jagithyal, Karimnagar Diskict.

¶27

Kathuri Sarika, D/o. Late K. Suresh Kumar, Age 22 yrs., Occ. Student, R/o. 4- 13, ltchoda Village, Mandal ltchoda, Adilabad Distriat.

¶28

'16. Kathuri Sowmya, D/o. Late K. Suresh Kumar, Age 20 yrs., Occ. Student, R/o. 4-13, lchoda Village, Mandal ltchoda, Adilabad Distric[.

¶29

Kathuri Parameshwari, Wo. Kathuri Vijaykumar, Aged 53 yrs., ltchoda Village and Mandal, Adilabad District.

¶30

Kathuri Sanjeev_ Kumal S/o. Kathuri Vijaykumar, Aged 42 yrs., ltchoda Village and Mandal, Adilabad District_

¶31

Kath-uri Satish Kumar, S/o. Kathuri Vijaykumar, Aged 40 yrs., ltchoda Village and Mandal, Adilabad District.

¶32

B.Sridevi, Wo. B.Anil Kumar, Aged 36 yrs., potangal Village, Nizamabad District.

¶33

(8e-s!9lr-d-eni! 13 to 16 are brought on record as LRs of deceased R.4 s per Court Order dated 03.08.2023 vide lA.No.2 of 2015 (ASMp No.t6t9 of 20t5) in AS No.Z06 of 2ObO )

¶34

(E9spg!d-e-n!q !!os-. '17 to 20 are brought-on record as lRs of deceased R.t as per Court Order dated 03.08.2023 vide tANo.1 of 2016 (AS Mp No.944 of 20.t6) in AS.No.Z06 of 2b06)

¶35

...Respondents/Defendants.

¶36

l.A. NO: 2 OF 2000(CMP. N O: 't6134 OF 2000)

¶37

Between:

¶38

Kothuri Vijaya Kumar, S/o K. Lachanna, (died per LRs -17 to 20)

¶39

K. Ashok-Kumar,, S/o K. Lachanna, Business R/o 4-13, ltchoda (V), Mandal Itchoda, Adilabad Dist.

¶40

K. Ramesh Kumar, (Died) per LRs RR- 9 to 12)

¶41

K. Suresh Kumar, S/o K. Lachanna, (Died per LRs RR-13 to 16)

¶42

K..Anand Kumar,, Sio K. Lachanna, Business Rl/o 4_13, ltchoda (V), Mandal Itchoda, Adilabad Dist.

¶43

6 K. Anusuya Bai,, Wo K. Lachanna, Househotd Rlio 4_13, ltchoda (V), Mandal Itchoda, Adilabad Dist.

¶44

...Petitioners/Respondents.

¶45

AND

¶46

Kothuri Gundaiah, S/o Kothuri Lachanna, Employee ln Ginning, and Agriculture^R/o Itchoda (V), ltchoda^(lvl), Adilabad District.

¶47

Petition under Section 151 CPC praying,^r,,. ; :;;:::::ffi]; the affidavit filed in support of the^petition, the High Court may be^pleased to vacate the interim orders dt.6.4.00^passed in CMP No. 5736/00ⁱⁿ AS^No. 706/00

¶48

Counsel for the Appellant: Sri Nazeer Khan

¶49

Counsel for the Respondents 1 to 6: Sri V Ravi Kiran^Rao

¶50

Counsel for the Respondent No.7: Sri K Joseph

¶51

The Court made the following Judgment:

¶52

THE HON'BLE SRI JUSTICE M. LAXMAN

¶53

APPEAL SUIT No.7O6 of 2OOO

¶54

JUDGMENT:

¶55

1 . The present appeal assails judgment and clecree dated |7.OI.2OOO in O.S.No.6 of 1998 on the file of the Senior Civil Judge at Adilabad, (hereinafter referred to as 'trial Court'), wherein and whereby the suit filed by the appellant/ptaintiff for partition and separate possession of suit schedule- A, B and C properties was dismissed. Aggrieved by the same, the present appeal is filed.

¶56

The appellant herein is plaintiff eriiln" ,."Oorrdents herein are defendalts in the suit before the trial Court. For the sake of convenience, the parties are referred herein as they were arrayed in the suit.

¶57

The sum and substalce of the case of the plaintiff is that one Kothuri Lachanna is his father. Initially, Kothuri Lachanna was married to one Rajubai and he got two childrer-r, who are plaintiff and defenda,t No.7 herein. when plaintiff was four years oid, his mother Rajubai died, as such he and his sister i.e., defendant No.7 were residing with their maternal side family, who were living adjacent to the house of Lachanna. Subsequently, Lachalna got married to Anasuya Bai, who is defendalt No.6 and

¶58

¶59

¶60

they gave birth to h're sons ind one daughtei i.e., defendant Nos.l to 5 and 8.

¶61

It is further case of the plaintiff that Lachanna was having arcestral propcrtics at Boath village. He solcl said properties and migrated to Itchoda viilage,^,vhere with ttre said sale proceeds, he had purchased various properties. According to the plaintiff, the suit schedule properties are purchased out of sa,le proceeds derived from ancestral properties as well as; contribution of joint family funds. The suit schedule propelties are joint family properties. However, Lachalna died intestate and the suit scheduled properties are liable for partition. Hence, the present suit.

¶62

Defendant Nos. I to 6 filed their written statement contesting the suit, whereas defendant Nos.7 and 8 remained ex patle. It is the case of defendant Nos.1 to 6 that Lachanna owned ancestral properties covered under item Nos.I and 2 of suit schedule-A properties and item Nos.l and 2 of suit schedule-B properties. During his life time, he executed Will deed and gift deeds transferring the said properties to the beneficiaries thereunder. The other properties covered under item Nos.3 to 6 of suit schedule-B properties were self-acquired properties of defendant Nos. 1, 3, 4, 5 and 6. The properties covered under suit

¶63

¶64

schedule-C properties are self-acquired properties of defendant Nos.3, 4 and 5. According to defendant Nos. 1 to 6, during the lifetime of Lachanna, he has executed Will deed and gift deeds tralsferring the suit schedule properties. Hence, they are not available for partition and prayed to dismiss the suit.

¶65

On the basis of the above pleadings, the following issues were framed by the trial Court:

¶66

Whether suit schedule properties are ancestral as well as joint family properties?

¶67

2 Whether Kathuri Lachanna gifted land in survey No.32 to defendant No.1 to 6 and bequeathed 35 plots in survey No.99 and house bearing No.3-4 to 6fr defendant by way of Will dated 27 -9-1991?

¶68

3 Whether plaintiff is entitled for partition and 1 / 6th share in the suit schedule properties?

¶69

4 To what reliefl.2"

¶70

The plaintiff in support of his case got examined himself as

¶71

P.W.1 and got marked Exs.A-1 to A-8. Defendant Nos. 1 to 6 got examined D.Ws. 1 and 2 and got marked Exs.B-l to B-11, in support of their case.

¶72

The trial Court after appreciating the evidence on record found that the plaintiff failed to establish that suit schedule properties are joint family properties and held that the properties covered under Will deed arrd gift deeds are self_acquired

¶73

¶74

¶75

properties of Lachanna. Further, Laciranna has valicily

¶76

tralsfer-red the suit schedule properties to the beneficiaries under Will deed and gift deeds. Consequently, the.suit r,r,as dismissed. Hence, the present appeal

¶77

Heard both sides.

¶78

In view of the above, the following points emerge for

¶79

consideration in the present appeal:

¶80

Whether thc plaintiff proved that the suit schedule properties were acquired from sale of ancestral properties of Lachanna and that the same are joint family properties of plaintiff and defendants?

¶81

2 Whether the plaintiff is entitled to claim properties covered under gift cleeds without specifically challenging the gift deeds?

¶82

J Whether the Will deed dated 27 .O9.7991 is true and validly executed, so as to bind the parties?

¶83

4 Whether t[e plaintiff is entitled for partition of suit scheduled properties?"

¶84

Point Nos.l to 4:

¶85

The pleadings of plaintiff shows that the properties covered under Will deed and gift deeds including other suit schedule properties are joint family properties. He claimed that initially, deceased Lachartna owned some ancestral^properties in^Boath village. He sold such^properties and migrated to Itchoda^village. Subsequently, out of^joint family funds and ancestral properties

¶86

¶87

funds, all the suit schedule properties were acquired. In order to support his case, plaintiff apart from his oral evidence relied upon Exs.A-l to A-8. Exs.A-l and A-2 are legal notice issued by the plaintiff to defendants and reply notice by defendants respectively Exs.A-3 and A-4 are pahani for the yeat 1996-97 for land in Sy.No.32 of Aogeon village and pahani for the year 1990-9 1 for the land in Sy.No.99 of Itchoda village respectively. Ex.A-S is death certificate of Lachanna. Ex.A-6 is invitation card of marriage of said Lachanna in the year 197 1. Ex.A-7 and A-8 are licenses issued to the plaintiff by Agricultural Market Committee of Boath village.

¶88

The trial Court found that there is no proof that Lachanna sold away his ancestral properties in Boath village. Except his oral evidence, plaintiff has not produced any documentary evidence to show that Lachanna had ancestra-l properties in Boath village. No evidence is produced to show the source of acquisition and existence of joint nucleus by Lachanna to purchase suit schedule properties. If the source is not proved, the entire case of plaintiff that suit schedule properties are purchased from sale of ancestral properties cannot be accepted. Hence, the trial Court has rightly rejected such a claim. \

(

Admittedly, the suit schedule-A properties are owned^by Lachanna.^'Ihere is also admission that item No. I of suit schedule-B properties is also owned by Lachanna. In^{Will deed,} house property No.4-3 was also referred as l)roperty of^Lachanna along u,ith properties in item^No.2 of suit^{schedule-Aproperties} and item No.l of suit schedule-B^{properties.However,house} property No.4-3 was not part of the^present suit^schedule properties. Absolutely, there is no evidence, with^{regard to other} properties covered under item Nos.2 to 6^{of suit schedule-B} properties to shorv that such properties^{are joint family properties.} Defendant Nos. 1, 3, 4, 5 and 6^{have set up that item Nos.2 to 6} of suit schedule-B^{properties are self-acquired bythem'} Therefore, they cannot be said^{to be joint famiiyproperties'} Further. as per evidence on^{record and admissions,the suit} schedule-C^{propertiesare also not acquired from the joint family} funds and the sarne canllot^{be subjectedto partition. Such} Iindings rendered by the triat^{Court with regardto item Nos.2to 6} of suit schedule-B^{properties and suit schedule-Cproperties} cannot be interfered.

¶93

i,.]

¶94

In the present^case, the entire^{dispute is revolving around} properties held by Lachanna.^{The evidence on record shows that} Lachanna was holding^{pFop'erties coveredunder suit schedule-A}

¶95

¶96

properties and item No. 1 of suit^{schedule-Bproperties' The} properties under suit schedule-A^{propertiesare agricultural lands} and item No.1 of suit^{schedule-Bproperties is houseproPerty'}

¶97

The case setup by^{defendantNos. 1 to 6 is that Lachanna} executed gift deeds^{dated27.09.1991underExs.B-2 to B-7 and} Will deed dated 27 .O9.1991^{under Ex.B- I intheir favour} tralsferring the said properties.^{According to defendantNos. 1 to} 6, at the time of execution of such^{Will deed and gift deeds,} Lachanna was hail and healthy^{and he executed them onlyafter} understanding the contents therein.^{DefendantNos. 1 to 6 to} prove the execution of such documents examined,^{D.W.1, whois} defendant No.1 and beneficiary under^{Ex.B-3 and D'W.2, who is} attestor to said documents.

¶98

I 6. Learned counsel for the^plaintiff/ appellant^{has contended} that Will deed and gift deeds were^{executedat the houseof} Lachanna by summoning the Sub-Registrar.^{At the time of said} execution, Lachanna was 85 years old and^{his mentalcondition} was not good and he was not in capacity to understand^the execution. The date of execution of the said^documentsis 27.09.1991 and date of death of Lachanna was 16.i0.1991. According to the learned counsel for the plaintiff/ appellant,^the date of execution of said documents and date of death^clearly f.

I I I i t i i I I

dernonstrate that the rnenta-l condition of Lachanna u.as not good It is his contention that the said documents u.ere executed by defendant Nos. 1 to 6 to deprive the legitirnate entitlement of the plaintiff and defendant Np.7.

¶103

17 . It is the contention of the learned cor.tn se1 for ttre contesting defendants/ respondents that the evidence of D.W.2, who is attestor to the said documents, clearly demonstrates that he is equally related to both plaintiff and defendant Nos.1 to 6. His testimony was un-irnpeacired and his evidence clearly shows^that at the tirrre of execution, Lachanna^rvvas fit and^after understanding the contents on1y, he executed the^said documents.

¶104

l,earned counsel for the plaintiff/ appella:rt has^{assailed the} Will deed by contending that property covered under^{Will deed} falls under Itchoda village, which is agency area,^{as such} execution of Will deed is prohibited under laws^{governing agency} area

¶105

Learned counsel for contesting defendalts/respondents submitted that Will deed is not hit by^{prohibition arld the same} cannot be treated as null and void.^{Accordingto him, the Will} deed is properly proved ald requires^{no interference.}

¶106

¶107

¶108

In the present case, there is no prayer for cancellation of gift deeds, which according to plaintiff were vitiated on account of lack of free consent. Therefore, the plaintiff cannot get any benefrt in respect of lands covered under gift deeds since they are unchallenged. Hence, the claim of plaintiff with regard to properties covered under gift deeds was rightly negated by trial Court and the same requires no interference.

¶109

Now, the question is with regard to execution of Will deed under Ex.B- 1 alone. The principles governing the proof of Will deed has been stated under Section 63 of the Indian Succession Act, 1925, and law laid down by the Apex Court in the case of Raj Kumari vs. Surinder Pal Sharmal, at para Nos.9 to 13 which reads as under:

¶110

"9. We would hrst expound the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. Clause (c) of Section 63 of the Indian Succession Act reads as follows:

¶111

"63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfa-re, or an airman so employed (2013) 7 SCC +SO or engaged, or a mariner at sea, shall execute his will according to the following rules- 1a;-16;^{- .} "

¶112

(c) The will shal1 be attested by two or more witnesses, each of whom has seen the testator sigrr or alfix his mark to the wrll or has seen some other person sigrr the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person;

¶113

' lzoz^{ty ta scc soo}

(

:rnd each of thc witrresscs shall sign the rvill in the presence of thc testator, but it sh:rtl not be nccess:iJy that more tharl one witness be present at the same Lime, and no particular fornl of attestation shall be necessary."

¶118

lO. As per the mandate of clause (c), a Will is required to be attested by two or rnore witnesses eacl-r of whom should have seen the testator sign or put his mark on the Will or shoulcl have scen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a^personal acknowledsment of his siqnature or mark, or of the siqnature of such other^person Thc Wili must be signed by the witness in the presence of the testator, but it is not necessary that more than one 'aritness should be prescllt at the same time. No particular^{form of} attestation is necessary. Thus, there is no^{prescriptionin the} statute that the testator must necessarily sign the^Will in^the presence of tho:. attesting witnesses only or that the attesting witnesses must put their signature s on the^Will simultaneously, that is, at the same time, in^{the presence of} each other and the testator.

¶119

1 1. 'I'he need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act^{has been} elucidated and explained in several decisions. In^H. Venkatacha.la Ivenqar v. B.N. Thimmaiamma and^Others.2 dilating on the statutory and mandatory requisites^for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will^which is a^testamentary instrument vis-b.-vis other documents of^{conveyancing,by} emphasising that the Will is^{produced before the courtafter} thc testator who has departed from the^{world, cannotsay that} the Will is his own or it is not the same. This^factum introduces an element of solemnity to the decision on^the question where the Will propounded is proved as^{the last Will} or testament of the departed testator Therefore the propounder to succeed and prove the WilI is req uired to^prove bv satisfacto ry evidence that⁽ⁱ⁾ the^Will '"vas^{siqnedby the} testator:⁽ⁱⁱ⁾ the testator at the time^{was in a sound and} dispo sins state of mind:⁽ⁱⁱⁱ⁾ the^{testator understood the} nature and effect of the dis^{posltlons:and (ivl that the testator} had^put his signature^{on the document of his own free will} Ordinarily, when^{the evidence adduced in support of the Will}

¶120

¶121

¶122

is disinterested, satisfactory and sufhcient to prove the sound and AIR 1959 SC 443 disposing state of mind of the testator and his signature as required by law, courts would be^justified in making a finding in lavour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facls. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect.

¶123

In Jaswant Kaur v. Amrit Kaur and Others3 , lt was held that suspicion^qenerated bv disinheritance is not removed by mere assertion of the propoundej that the WiU bears the signature of the testator or that the testator was in sound and disposing state of mind when the Will disinherits those like lhe wife and children of the testator who would have normally received their due share in the estate. At the same time, the testator may have hjs own reasons for excluding them. Therefore, it is obligatory for the propounder to remove all the legitimate suspicions bcfore a Will is accepted as a valid Iast Will of the testator. Earlier, in Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another 4, this Court had observed that the propounder should demonstrate that the Will was signed by the testator and at the relevant time, the (1977) | SCC 369 (1974) 2 SCC 600 testator was in a sound and disposing state of mind and.had understood the nature and effect of the dispositions, that he had put his signature on the testimony of his own free will and at least two witnesses have attested the Will in his presence. However, suspicion may arise where the signature is doubtful or when the testator is of feeble mind or is overawed by powerful minds interested in getting his property or where the disposition appears to be unnatural, improbable and unfair or where there are other reasons to doubt the testator's free will and mind. The nature and quality of proof must commensurate with such essentiality so as to remove any suspicion which a reasonable or prudent man may, in the prevailing circumstances, entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, probate of the Will must necessarily be granted when it is established tha t the tcstator had full testamentary

capaciLj,- and had in lact executed the Will with a lree u,ill and mind. In Rabjndia Nath Mukheriee and Another v. Panchanan Earreriee^(Dea d) by LRs. and Others ((1995) 4 SCC 459i, this Court had obsened that the doubt would be less significant if ttre Will is registered and the Sub-Registrar certifies that the sanre was read over to the executor who, on doing so, had admitted the contents. in each case, the court rnust be satisiied as to the rnanciate and requirements of clause (c) to Section 63 of the Indian Succession Act.

¶128

In Jagdish Chand Sharma v. Naraln Sineh Saini (Deacl) Throueh LRs. and Others6 , this Court referring to Section 63 of lhe Indian Succession Act had illustrated that the provisions cor-rtemplate that in order to validly execute the Will, the testator w'ould have to sign or affix his mark to it or thc same has to be signed b1, sorne other person in his prescrrce a nd on his direction. Further, the signature or mark of the testalor or signature of the person signing for him has to be so placecl that it was intended to give effect to the writing as a Will. Section 63 mandates that the Will should be attested by tw-o or more witnesses each of "vhom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement ol his signature or mark, or the signature of s,.rch other person and each of the rvitnesses has signed the Will in the presence of the testator, though it is not necessa.ry that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failurc and (2015) 8 SCC 615 deficiency in adhering to thc essential requirements would result in invalidation of the instrument of disposition of the property."

¶129

The evidence on record shows that execution of Will deed was donc, when Lachanna was 85 years old. It was executed on 27.O9.7991 and he died on 16.10.1991. The execution was done at the house of Lachanna. According to the evidence of D.W.2, he went to Sub-Registrar and paid the fee and brought the Sub-

¶130

Registrar for registration. The evidence of D.W.2 is silent whether he went to the Sub Registrar at the instance of Lachanna or €rny other person. Therc is no evidence on record to show that Lachanna expressed will or wish for execution of Will deed. This shows that there was no will or wish on the part of the Lachanna for execution of such Witl deed. It appears defendant Nos. 1 to 6, who are benehciaries of Will deed and gift deeds played active role in process of execution, taking advantage of age and health condition of Lachanna. The above circumstance is one of the doubting circumstances with regard to truthfulness of intention of Lachanna to execute the Will deed.

¶131

The other suspicious circumstance is that the plaintiff and defendant No.7, who are natural children of Lachalna through his first wife and living with their maternal side of family, were not given arry share in the propertics covered under the Will deed or gift deeds. Further, no rcasons were found in the Will deed for denying share of plaintifl and dcfendant No.7. This suspicious circumstances was not cleared by defendant Nos.l to 6, who were beneficiaries under the Will deed. The triai Court has not considered the fact that delendant Nos.1 to 6 failed to remove the suspicious circumstances surrounding the execution of Will deed and this Court leels that clefendan t Nos. I to 6 have failed to

¶132

¶133

riI il

¶134

remove suspicious circumstanccs slrrrounding the execution of will deed.^'lherefore, the V/iI dcccr under Ex.B- r cannot be relied upon for denying the rights of the plaintiff and defendant No.7. The trial court has committecr crror in rendering findi.gs to that extent and the same are required to be set aside.

¶135

Dealing r,vith contention, with regard to whether the WiI deed is hit by prohibition of law relating to agency areas has bccome academic in the light of findings re,dered by this court in respect of e>tccr-rtion of Will deed. Thcrefore, it is unnecessarv to go into such aspcct.

¶136

In the result, the appeal is partly allorved and the finclings in the judgrncnl and decree dated 17.01.2000 in O.S.No.6 of 1998 on the Iile of thc Senior Civil Jucige at Adilabad, relating to property covered undcr iteur lJo.1 cf suit schedule_A properties, item Nos.2 to 6 of suit schedure-B properties and suit schedure-c properties zrre confirmed since they are not available for partition. The findings oI the trial court *.ith ri:gard to item No.2 of the suit schedule-A properties and item No.1 or suit schedure-B properties which are covereci tr.der [ill deed are set aside. This court holds that the propcrtles covered u.dcr will deed are ava able for partition. The plaintiff and ottrer clefendants are entitled for I /9tn share in the item No.2 of the suit schedgi-e:A properties and item

¶137

¶138

No. 1 of suit schedule-B properties which are covered under

¶139

Ex.B-1 Will deed. No order as to costs. Miscellaneous petitions, if

¶140

any, pending shall stand closed.

¶141

//TRUE COPY//

¶142

SD/. K.SRINIVASA^RAO JOINT REGISTRAR (i. ./

-f^, ./

SECTION OFFICER

To,

1 The Senior Civil Judge^{at Adilabad (WithRecords)} 2 One CC to Sri Nazeer^{Khan,Advocate} [OPUC] 3 One CC to Sri V Ravi^{Kiran Rao,Advocate} [OPUC] 4 One CC to Sri^{K Joseph,Advocate} [OPUC]

¶147

5 Two CD Copies. Jgk

NS \ .=

HIGH COURT

DATED:13/09/2023

JUDGMENT

AS.No.706 of 2000

( STATE
'/- ill '
i r.<br>f, sn ,Ji,.
i
Dt_':.-'

¶154

APPEAL SUIT IS PARTLY ALLOWED.

¶155

nt5

¶156

[³²¹⁶ ]

¶157

IN THE HIGH COURT FOR THE STATE OF TELANGANA . ATHYDERABAD

¶158

WEDNESDAY,THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTYTHREE

¶159

PRESENT

¶160

THE HONOURABLE SRI JUSTICE M.LAXMAN

¶161

APPEAL SUIT O: 706 OF 2000

¶162

Between:

¶163

Kothuri Gundaiah, S/o Kothuri Lachanna, Employee ln Ginning^{and AgricultureRl/o} Itchoda (V), ltchoda (M), Adilabad District.

¶164

...AppellanUPlaintiff.

¶165

AND

¶166

Kothuri Vijaya Kumar, S/o K. Lachanna,^{(diedper LRs -17 to 20)}

¶167

K. Ashok Kumar,, S/o K. Lachanna, Business^{Ryo4-13, ltchoda(V), Mandal} Itchoda, Adilabad Dist.

¶168

K. Ramesh Kumar,^(Died)per LRs^RR- I to¹²⁾

¶169

K. Suresh Kumar, S/o K. Lachanna,^{(Died per} LRs RR'l3^{to 16)}

¶170

K. Anand Kumar,, S/o K. Lachanna, Business^{Rl/o 4-13, ltchoda(V), Mandal} Itchoda, Adilabad Dist.

¶171

K. Anusuya Bai,, Wo K. Lachanna, Household^{Rl/o4-13, ltchoda(V), Mandal} Itchoda, Adilabad Dist.

¶172

P. Kamala Bai,, W/o P. Dinakar, Household C/o^{Dinaker Padibal, R/o} Digaress Town Tq., Digaress Dist. Yavathmal^(MS),

¶173

P. Manjula,, Wio Raghavendra,^{HouseholdRl/o} Gangaram^{Complex, Opp.} Girls High School, Adilabad Dist.

¶174

Kathuri Sunitha, Wo. Late Ramesh Kumar, Occ^Household

¶175

Kathuri Santosh, S/o. Late Ramesh Kumar Occ^Business

¶176

Kathuri Sainath, S/o. Late Ramesh Kumar Occ^Business

¶177

Bashathi Uma RAni, W/o. Bashathi Suman Occ Household C/o.^Kathuri Santosh RR- I to 12 arc Rlo. ltchoda Adilabad^Dist.

¶178

(Respondents I lo 12 arc brought on record as LRs of deceased R-3 vide C.O. dt.30.9.13 in ASMP-2474120121

¶179

Kathuri Sai Leela, Wo. Kathuri Suresh Kumar^{(late), 50 yrs., Occ. House wife,} Rr/o. 4-13, ltchoda Village, Mandal ltchoda, Adilabad^District.

¶180

14.A. Sagarika,_W/o, A. Suresh, Age 24 yrs., Occ. House wife, Rl/o. Jagithyal, Karimnagar District.

¶181

Kathuri Sarika, D/o. Late K. Suresh Kumar, Age 22 yrs., Occ. Student, Rl/o. 4- '13, Itchoda Village, Mandal ltchoda, AdilabaA Oistridt.

¶182

KathuriSowmya, D/o. Late K. Suresh Kumar, Age 20 yrs., Occ. Student, R/o. 4-13, lchoda Village, Mandal ltchoda, Adilabad Districi.

¶183

Kathuri Parameshwari, W/o. Kathuri Vijaykumar, Aged 53 yrs., ltchoda Village and Mandal, Adilabad District.

¶184

Kath.u,ri Sanjeev, Kumar, S/o. Kathuri Vijaykumar, Ag€d 42 yrs., ltchoda Village and Mandal, Adilabad District.

¶185

Kathuri Satish Kumar, S/o. Kathuri Vijaykumar, Aged 40 yrs., ltchoda Village and Mandal, Adilabad District.

¶186

B.Sridevi, Wo. B.Anil Kumar, Aged 36 yrs., potangal Village, Nizamabad District.

¶187

(Be-s!9lt:d-en!! 13 to 16 are brought on record as LRs of deceased R-l s per Court Order dated 03.08.2023 vide tA.No.2 of 20t 5 (ASMp No.1619 of 201s) in A5 Ho.ioo ot ioiioi

¶188

(Respondents Nos. 17 dated 03.08.2023 vide lANo.1 to 20 are brouof 2016 (^glt AS^{-9! I9c9rd} MP No.944^as of 2016)^LRsof in^deceased AS.No.706^R-1 of 2OOO)^{as perCourtOrder}

¶189

...Respondents/Defendants.

¶190

Appeal under section 96 r/w Order 41 Rule 1 of CpC., aggrieved by the Judgment and Decree dated^'17.01.2000 passed in o.S.No.6 of 1998 on the file of the Court of the Senior Civil Judge at Adilabad.

¶191

ORDER: This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower court and the material papers in the case and upon hearing the arguments of Sri Nazeer Khan, Advocate for the Appellant and Sri V. Ravi Kiran Rao, Advocate for the Respondents Nos. 1 to 6, and Sri K. Joseph, Advocate for the Respondent No.7.

¶192

This court doth order as follows

¶193

1 . That Appeal Suit be and hereby is partly allowed.

¶194

That the finding in the Judgment and decree dated 17.01_2000 in O.S.No.6 of 1998 on the file of the Senior Civil Judge at Aditabad, relating to property covered under item No.1 of Suit Schedule-A properties, item Nos. 2 to 6 suit schedule-B properties and suit schedule_C properties are confirmed since theyare not available for partion;

¶195

That the findings of the trial Court with regard to item No.2 of the suit schedule-A^properties and item No.1 of suit schedule -B^{properties which} are covered under Will deed are set aside;

¶196

That this Court holds that the properties covered under will deed are available for partion;

¶197

That the plaintiff and other defendants be and hereby are entitled^{for 1/9th} share in the item No.2 of the suit schedule-A^properties and^{item No.1 of} suit schedule-B properties which are covered under Ex.B-1^Will deed;^and

¶198