Allowed

Kothawalli Raji Reddy v. Mrs. Kanukala Sathemma

Telangana HC13 Apr 2023AS/726/2010

Case brief

AI extract

What is this about?

Appeal against a decree declaring a Will-based title and cancelling sale deeds. The High Court allowed the appeal, holding that the plaintiff failed to prove the Will and that the testator's subsequent Agreement of Sale impliedly revoked the Will. The counterclaim for specific performance was allowed, setting aside the trial court's judgment.

What did the court decide?

Appeal suit allowed; judgment of trial court set aside; plaintiff not declared owner; counterclaim of appellants allowed; no order as to costs.

Kothawalli Raji Reddy Vs Mrs. Kanukala Sathemma — Succession and Inheritance | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE^{OF TELANGANA} AT HYDERABAD

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THURSDAY, THE THIRTEENTH^{DAY OF APRIL} TWO THOUSAND AND^{TWENTY THREE}

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PRESENT

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THE HONOURABLE SMT JUSTICE^{P.SREE SUDHA}

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APPEAL SUIT NO: 726 OF²⁰¹⁰

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Appeal Under Section 96 Read with^{Order 41 Rule'l of CPC against the} Judgment and Decree dated.02.08.2010^{passed in OS No. 26 of 2006 on the} file of the Court of the Senior Civil Judge,^{Medak District, at Medak.}

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Between:

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'l . Kothawalli Raji Reddy, S/o. Late Veera Reddy, R/o. H.No. Bollaram (V) Jinnaram Mandal, Medak District.

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Kothawalli Hari Krishna Reddy, S/o. Late Veera Reddy,^{Fyo. H.No.} Bollaram (V) Jinnaram Mandal, Medak District.

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...AppellanUDefendants 2 and 3

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AND

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Mrs. Kanukala Sathemma, Wo. K. Easwar Reddy, Occ.Housewife,^Rl/o. Bollaram of Jinnaram Mandal, Medak District.

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Bachupally Narayan Reddy, S/o. Late Shiva Reddy, Major, R:/o. H.No. 1-44, Bollaram (V) Jinnaram Mandal, Medak Distreict,^(Def. No.1 remained Exparte in the suit)

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...Respondent/Defendant No.1

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l.A. NO: 1 OF 2012(ASMP. NO: 2549 9EA1A

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Petition under Section 151 of CPC^praying that in the circumstances stated in the affidavit filed in support of the^petition, the High Court may^be pleased to direct the respondents not to. alienate or create the 3'd party rights of the Agricutlural land in Sy.No. 22lAA admeasuring Ac 2-03^guntas, Sy No. 2BIAA admeasuring Ac 0-21^guntas, Sy. No. 29lAA admeasuring^Ac 0-21 guntas, Sy No. 30/AA admeasuring Ac 0-20^guntas, Sy No. 31/AA admeasuring Ac 0-06 guntas, Sy No. 32lAA admeasuring^{Ac 0-33 guntas,} Sy No. 33/AA admeasuring Ac 0-23^{guntas,Sy No. 34/AA admeasuring Ac}

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0-18 guntas, Sy No. 35/AA admeasuring Ac 0-21 guntas in total Ac 6-06 guntas at Bollaram village, Jinnaram Mandal, Medak dist pending disposal of the above appeal.

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l.A. NO: 1 OF 2010GSlvlP-l{A: 1989 !E20'!g)

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Petition under Order 39 Rule 1 and 2 read with Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to issue temporary injunction restraining the Respondents from interfering the^{possession and enjoyment} of the Agricultural land in Sy.No. 22/AA admeasuring Ac 2-03^guntas, Sy.No. 2BIAA admeasuring Ac O-21^guntas Sy.No.^{29lAA admeasuringAc} 0-21 guntas, Sy.No. 30/AA admeasuring Ac 0-20^guntas ,^Sy.No.31/AA admeasuring Ac 0-06 guntas Sy.No. 32lAA admeasuring Ac^{0-33 Guntas} Sy.No. 33/AA admeasuring Ac 0-23^guntas Sy. No. 34iAA admeasuring^Ac 0-18 guntas and Sy.No. 35 admeasuring Ac 0-21^{guntas in Total Ac 6-06} guntas at Bollaram Village, Jinnaram Mandal, tr/edak District^pending disposal of the above Appeal.

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ASMP. NO:755 OF 20'13

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Petition under Section 151 of CPC^praying that in the circumstances stated in the affidavit filed in support of the^petition, the High Court^may be pleased to permit the petitioner to withdraw the compensation amount by virtue of the award No. 2 of 2008 dated 10.04.2008 by the Special Deputy Collector (LA Unit V, ORR PRoject HUDA Tarnaka, Hyderabad) for the acquired land admeasuring Ac. 2.03 guntas in Survey No. 22 of Bollarum Village, Jinnaram Mandal, Medak District.

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Counsel for Appellants: Sri NIMMANAGOT! SRINIVAS AND B. MOHAN

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Counsel forthe Respondents: SRI M. S. N. PRASAD

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The Court delivered the following: JUDGMENT

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THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

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APPEAL SUIT No.726 of2OlO

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JUDGMENT:

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This appeal is hled against the Judgment and decree dated 02.08.2010 in O.S.No.26 ot 2006 passed by the learned Senior Civil Judge, Medak.

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The respondent No. 1/plaintiff hled suit in O.S.No.26 of 2006 for partition and also to declare the sale deeds executed in favour of the appellants/defendants No.2 & 3 as null and void and to grant Perpetual Injunction. The trial Court examined P.Ws.l to 3 on behalf of the plaintiff and marked Exs.A1 to A23. D.Ws.l to 4 were examined on behalf of the defendants and marked Exs.Bl to El21. The trial Court considering the entire evidence on record, decreed the suit in favour of the plaintiff and declared the sale deeds as null and void and not binding on the plaintiff and also granted perpetual injunction against the defendants and the counter claim was dismissed. Aggrieved by the said Judgment, defendants No.2 & 3 preferred the present appeal.

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-il

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The appellants/^{defendantsNo.2 & 3 mainly contended} that plaintiff^{rvas declaredas the owner of the suit schedule} property basing on^{the CertifiedCopyof the Will under Ex 43,} even without^{producingthe original Will' Plaintiff has not} provedthelossoforiginalWillandhadnotlollowedformalities under Section 65^{of the Indian EvidenceAct before submitting} the seconda4'^{evidence. The trial Court observedthat the} Certihed Copy^{of the Will was not questioned by other daughters} of testator ancl^{thuspresttmed it as valid The plaintiffhas not} examined^{any of the two attesters' One of the attester expired'} though the^{otherattester u'as available,he was not produced by} the plaintiff^{to prove the Will. P.W 2 statedthat he drafted the} Will, but in^{the Will he was not shown as the Scribe P'W 3 is} the son of^one of^{the attcster,but he couldnot identifythe} signature of his^{father on the Certified Copy' The trial Court} ought to havc^{seen that unlessthe Court is satisfied that the} original Will was^{lost or damagedshould not permit for} secondary evidence^{under Section 65 of Indian Evidence Act'} The Will was not^{proved by any acceptable evidenceand thus} Ex.A3 is not admissible^{in the evidence.The Counselfor the} defendants srlggested in the Cross-examination^{that Balamma} revoked her Wi1l. The other daughters of Balamma filed Suit in O.S.No.9 of 7987. The plaintiff for the hrst time produced the

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Certified Copy in O.S.No.26 ot 2006, claiming the title, Though the Exs.Bl and B2 executed in the year 2000, suit was filed in the year 2006 and it is barred by limitation. The names of the appellants were recorded in Pahanies from the year 2000. The appellants frled land revenue receipts, Gazette publication and Ex.B14 to show that they are the owners of the suit schedule Iand. Though, the appellants stated that defendant No. 1 was colluded with plaintiff, the trial Court erred in observing that defendants have not examined defendant No.1, who remained ex parte. The Patta Passbook and title deeds issued in favour of the defendants No.2 & 3 under Ex.Bl9 and B2O were not considered by the trial Court. Therefore, requested the Court to set aside the Judgment of the trial Court.

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The plaintiff namely Kanukula Sathemma frled suit against her father B. Narayana Reddy/defendant No. I and the purchasers of the property from her mother i.e, defendants No.2 & 3. She stated that she is the absolute owner of the propert5r measuring an extent of Acs.6 - 06 gts and she acquired the same through the registered Will deed executed by her mother vide document No. lO of lgg7 , dated 23.06.19g7 and the same was registered in the Oflice of the Sub-Registrar, Medak district. The suit schedule property is the exclusive property of her

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mother and thus^{defendantNo.1 has no right to deal with the} subject properties.^{The name of her mother was reflectedin the} Pahanies for^{ntore than 30 years and she was in exclusive} possession anrl enjoyment^{of the said propert5r and she died on} 20.06.2000.^{When plaintiff approached revenueauthorities in} the ltrst week^{of March, 2006shecame to know that the names} of defendants^{No.2 & 3 u'ere incorporatedin the Pahanies from} 2000 - 2O0lonwards^{and thcn she came to know that defendant} No.1 sold the^{land in favour of the defendantsNo'2 & 3 through} registered^{salc deeds vide documentNos'215O & 2151 of 2O00} dated 06.09.2000,^{without any valid right, title or possession'} The defendat-rt^{No.1 has no right or authorityto alienate the suit} lands belonging^{to the plaintiff and thusdefendantsNo'2 & 3} did not^{get any bettertitie basing on the saidsale deeds and} they are not^{binding on her' The plaintiff was in continuous'} peaceful possession^{and enjoymentof the suit scheduleland} without any obstruction.^{As defendants are tryingto dispossess} her on 02.A4.2006,^{she came to know about the legal} transaction^{between the defendantNo 1and defendant} Nos.2 & 3.^{Sl-re obtained Certihed Copy of the sale deeds and} filed the Suit for^{Declarat ton of title and for cancellationof the} registered sale deeds

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The defendant Nos.2 & 3 by filing Written Statement along with Counter claim denied the allegations of plaintiff and stated that the properf5r belong to the mother of the ptaintiff namely Bachupalli Balamma and she executed an Agreement of Sale and agreed to sell the entire suit schedule property to the fathers of the defendants No.2 & 3 by way of Agreement of Sale dated 11.06.2000 for total sale consideration of Rs.2,5g,300 @ Rs.42'0oo/- per acre and received advance sale consideration of Rs.58,3O0/ - and the balance is to be paid at the time of registration of the sale deed and agreed to be executed on 30.08.2000 in favour of the vendees or their nominees. It was also mentioned that if Bachupalli Balamma could not execute the sale deed in case of her death, she authorized her husbald i.e, defendant No. 1 to execute the sale deeds in favour of the vendees. The said Agreement of SaIe was countersigned by defendant No. I and sons-in-law of defendant No.l. The mother of the plaintiff died on 20.06.2000, as per her wishes and authorization, defendaat No.l executed the registered sale deeds in favour of the defendants No.2 & 3 by receiving balance sale consideration.

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They further stated that if, the Court comes to the conclusion regarding genuinity of the Will, the defendants are

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entitled for Specific Performance of Agreement of Sale dated 1 i.06.2000 and the plaintifl is directed to execute the registered sale deeds in lavour of father of the det'endants No.2 & 3 or their nominees b1. receiving balance sale consideration as per the Agreement of Sale dated 1 1.06.2000 and thus they^ltled Counter claim. They further stated that the Suit filed by^{the plaintiffis} barred by iirnitation. They requested the Court to^direct defendant No. L to^pay the^{saleconsiderationof Rs.2,00,000/-} and also the arnount for Registration and^{Stamp expensesto the} plaintiff for exccution of the sale deeds in their;[avour. t

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7 . In the additional Written Statement^hled by^the defendants No.2 & 3, they stated that^{Balammaha$ not} disclosed abottt the Witl deecl said^{to have been executed by her} in the sale decd. Though,^{the sale took place in the year 2000,} plaintiff has not questioned the sale deed till 2006. The said Balamma was in possession of the^property till^{her death. Her} husband sold the property In pursuance of the^{authorization} given by her. Even in the Agreement of Sale, she stated that there is no obligation l.owards hcr daughters,^{therefore the sale} deeds executeri in favour of defendants No.2 & 3 were valid and binding on the plaintiff. The Will was fabricated by the plaintiff and her husband. When the daughters of Balamma filed

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O.S.No.9 of 1987 against the plaintiff and her husband, Balamma was suffering from Cancer and was admitted in the hospital, as the plaintiff and other daughters of Balamma failed to Iook after her, she and her husband were in dire need of medical expenses and thus she agreed to sell the suit schedule property in favour of fathers of defendants No.2 & 3 and also authorized defendant No.l to execute the sale deed. As the Ba-lamma has no male issues, her husband was only the legal heir and the daughters were married and living with their families. The other four daughters except the plaintiff and her sister who married Eswar Reddy attested the sale deeds.

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The plaintiff filed the Suit at the instance of her husband who was trying to grab the land from Balamma from the beginning. The alleged Will was impliedly revoked by Balamma as she executed the Agreement of Sale authorizing her husband to sell the property. Plaintiff was never in possession of the property. After purchasing the property in the year 2000, the defendants No.2 & 3 were in possession and enjoyment of the said property. The Patta pass book and title deeds were issued in favour of the defendants No.2 & 3 b,y the Mandal Revenue Officer, Jinnaram and their names were also mutated in the revenue records. They are cultivating the land and paying

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'-)

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revenue to the^{Governmenl. When the authorities called for} objections frorn^{the pubhc.no objection was raised by the} plaintiff before the^{revenue authorities.The defendants No'2 & 3} hled various^{applications before theHyderabadUrban} Development^{Authoritl'for changing of the suit landusage from} agriculture^{to residential. Even then, the plaintiff did not file} any objections,^{as she was not in possessionof the property'} The trial Court^{framed as many as six issues and dealt with} each issue^{in rletail.}

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g. Now, it is^{for this Court to decide whether the Judgment} of the trial^{Court is on proper appreciationof the facts or not} and is liable^{to be set aside'}

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The^{Balamma and Narayan Reddy are blessed with six} daughters namely^{Katnsamma,Amramma'Buchamma'} Jayamma,^{Satyammaand Shankaramma' The Easwar Reddy} married Satytrmma^{and ShankarammaO'S'No9 of 1987 was} Iiled by the lwo^{daughters of Balamma i'e', Kamsammaand} Amramma against^{the fathcrof Balammai'e, Maila Reddy and} other daughtt:rs of Balamma^{and Eswar Reddyfor partitionof} the properties @ 118,t, to each of them. In the said Suit, it^was held that Malta Reddl,has no male issues, as such he kept his

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daughter Balamma in his house and transferred all the A- Schedule properties in her name. The family pedigree of Balamma was given in the said suit and it was also stated that Balamma was giving equal amount to all the daughters every year towards their share. When they requested her to partition the suit schedule property on O5.01.1987, she refused for partition and also stated that in the first week of the January, 1987 Eswar Reddy refused to make partition and thus they hled the Suit for partition. In the said Suit, they stated that Eswar Reddy married Satyamma and Shankaramma and claiming entire suit schedule property depriving the lawful rights of the defendants and other daughters of Balamma and also trying to alienate the suit schedule property. His name was incorporated as cultivator in the Patta Passbook and they filed the Certihed Copy of the Pattadar Passbook for the year 19g5-g6 to substantiate their version and added him as defendant in Suit.

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The Written Statement was hled in O.S.No. 9 of 1987 on 25.08.1987, by Balamma, ,Sat5ramma, Shankaramma and Eswar Reddy, in which it was held that Balamma is the absolute owner of the suit schedule property: In the said suit it was mentioned that defendant No.2 sold the land bearing Sy.No. 105, 14O laa and 742. It was also mentioned that

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Satyamma and Shankaramma are looking after the Balamma, her husband and her father and opposed the partition as claimed by the plaintiffs. ln the said suit Acs.8 - 12 gts was shown as the suit scbeclule property and all the Survey numbers werc mentioned ir-r dctail, but the suit was dismissed for default, in which it was mentioned that plaintiff^was not ready inspite of the conrliLional Order, even the^advocateof defendants No.2, 3, 5 and^{7 r ias presentand defendants No. 1, 4} and 7 remair-rt:d exparte on^03.08.1993.

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It seems that during^{the pendencyof the Suit, Balamma} executed the Will deed vide document^{No.lO of 1987 which is} filed under Ex.A3 and^got it^{registered. Even in the Will deed it} was mentioned that she ,r'as blessed^witJl 6^{daughters. All of} them married and^g,ell sr:ttlcd.^{Her husband, herselfand her} father Malla Reddy are looked after by Satyamma^{w/o. Eswar} Reddy from Lhe past B 1'ears and her two^{daughters frled} O.S.No.9 of 1987, as such she^{intended to execute the Will in} favour of plaintiff and the will shall come into^{effect on her} death and she reseraes her right to reooke the Wilt during

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her life time. She a,fhxed her thumb impression and also stated that last Will and testament ."." .*.".,,t.d with free will and in the presence of attesting r,,.,it,csses. The defendants in the suit

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mainly contended that Will was executed on 23.06.1987 i.e, two months prior to the Iiling of Written Statement in O.S.No.9 of 1987, but the Balamma has not stated anything regarding the execution of the said Will in O.S.No.9 of l9a7 for the reasons best known to her.

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The plaintiff got examined P.W.2, Advocate on her behalf who contested O.S.No.9 of 7982 on their behalf and he stated that as per the instructions of Balamma, he drafted the Will and also assisted her for registration. He clearly stated that when the suit for partition was filed by her daughters, she executed the Will and got it registered. He stated that Balamma was alive while preparing Written Statement in the said Suit arrd she gave instructions for preparing Written Statement. One Rami Reddy was the attester of the Will and he did not remember the name of other attester. He also stated that Balamma informed that the suit schedule property is the self-acquired property, as such he got executed the Will at her instance, but there was no recital in the WiIl that the property is the self-acquired property of the Balamma. He did not know whether Balamma revoked the Will subsequently, but in Ex.A3 she reserved her right to revoke the Will. He stated that Ex.A3 was drafted by him and he read. over

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the conten ts of the^{Will to Balamma, but his name was not} shown as scrille^{in Ex.AJ}

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The^{plarntifffiled surt- for Declarationbasing on the Will} executed lty^{her mothel on 23'06' 1987, but she has not} produced the original^{Will.She simply stated that the Will was} in a damage<l^{condition, as such they obtainedthe Certified} Copy of the^{Will and markedthe same' This Court finds it} reasonabletoextractthecvidenceofP'W'l,asshecouldnot produced the original^{Will It reads as follows:}

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"I liued tuith^{mg m.otherat Bollarumtill her death} from^{the time of my ntariage' My mother exeo)tedthe} Witl in June^{1987.ln my absence I came to knout about} execution of^{the Witt. Though I utas tltith mg mother'I} d.o not krtotu^{tt-then mg mother executed tLrc Will under} Ex A-3. Mg^{mother not signed Will in my presence'}

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I do not^{yn6v-1utho uere personsuho prepared} the Witl.^{After 5 years of execution of Will mg mother} informed me^{about the exeantion of Wilt bg her' The} original of^{Will utas rtot u-ttth me' I do not knotuuith} wiom the oiginol^{Wilt was kept' Afterdeathof mg} mother I houe^{not taken anA steps to mutate the} schedule^{propertAin my name} '^{Euen pior to the death} of mg mother^{in the} 11ear^{2000, I came to knotu about} tn WU.^{Before the cleath of mg mothershe informed} the Will u.tas^{damage.cl. Onlg} for^{the purpose of fiIing} the Suit, I^{haueobtahrcdcetlifiedcopy of the Willl'and} I haue seen ttrc^{originatWill os mg motherhad shoun} to me.

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As per the Will I haue to inheit^{the propertgafier} death of mg mother. I Lods not present at time of

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registration of Will. I do not knout who were the persons with mg mother by the time of regi-stration of WiU. Mg mother had shoun damaged Will to me, fiue gears prior her death After death of my motLer, I Lwue not seen the damoged WiII. I haue not enqtired about the damaged Will and uith whom it tuas kept.

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It is not tnte to saA that mgself and mg husband created oiginal of Ex. A-3 to grab the propertg.

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I came to know in tLrc year 2OO3 names of Def no.2 & 3 in the column of pattedar and enjoger. I fi.led Suit directlg ttithout making ang application to the MRO."

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As per the citation reported in (2O14) 2 SCC 269 between

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Union oJ Indla and others Vs. Vasaul Cooperatiue Houslng Socletg and others in which it was held as follows:

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In a suit for declaration of title, tLe burden alutays lies on tLre plaintiff to make out and establish a clear case for granting such a declaration and tLe weakness, if ang, of the case set up bA the defendants utould not be a ground to grant relief to the plaintiff. The legal position, tlerefore, is clear that tlte plaintiff in a suit for declaration of title and_ possession could succeed only on the strength of its own title and that could be done only bg adducing sufficient eui.d.ence to discharge the onus on it.

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The case of the plaintiff is that Balamma executed the Will in her favour as she looked after her mother Balamma, father Narayan Reddy ald Grand-father Malla Reddy from past 8 years prior to the execution of the Will in tl-re year 1987, but her evidence shows that Will was not executed in her presence and she did not know about the execution of the Will. Only after five

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years i.e, in the year 199 1, her mother informed her about the execution of the Will, but she has not handed over^the original Witl to the plaintiff and not even informed with^whomshe kept the original Will. She stated^{that beforethe death of her mother,} she informed that Will '"vas^{damaged. Her mother shownthe} damaged Will, but she^{hers not seen the damagedWill a'fter the} death of his mother.^{In the light of the evidenceof P.W.1, during} her Cross-examination shc^{did not state anything about} production of the original Will after the^{death of her motherand} she liled the Suit in thc^{year 2006. This Court findsthatthe} evidence of I'.W. I is to bc^{scrutinizedwith much care and} caution beforc arriving^{to thc conclusion.}

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The defendants in thc^{suit mainly contended that it is for} the plaintiff to produce thc^{originalWill and then request the} Court for filing the Certified Copy^{of the Will by duly following} the procedure laid down under^{Section 65 of the Indian} Evidence Act, but the plaintiff directly^{filed the Certihed Copy of} the Will and t|rus it cannot be looked^{into. Admittedly, the name} of Balamma was recorde<l in the^{copy of the Pahanies for the} years 1999 -'2O,2OOO -01,2O01 -02,2OO4 -05, 1999-2000, 1993 - 94, 1986 - 87, 1984 - 85, 1979 - 80. There is no dispute regarding the lact that Balamma was the absolute owner of the

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suit schedule property and her name was recorded in the Pattadar Passbook from the past 50 years. Balamma also executed Agreement of Sale in favour of defendants No.2 & 3 during her life time i.e, on 1I.06.2000, in which she stated that she intended to sell Acs.6 - O6 gts of land in favour of Veera Reddy and Prathap Reddy for an amount of Rs.42,000/_ per acre i.e., Rs.2,58,300/- and she received Rs.Sg,300/_ on the said date and instructed them to pay the balance on 30.0g.2000 and then she will register the sale deed on that day. She further stated that in view of her health condition, if she dies in the meanwhile her husband Narayan Reddy will register the sale deed in their favour and she can take care of his daughters and there will not be any probrem to the vendees. she executed the document with her own will and received the advance. The said document was attested by three daughters and three sons_in_ laws and also defendant No. 1.

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Now, it is for this Court to see whether tire execution of the sale deed by Balamma in favour of defendants No.2 & 3 amounts to revocation of the will or not?

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The WiU can be reuoked expresslg bg another WiIl or codic or by implied reuocation, bg some writing, bg buming or tearing

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or bA destroAing othenuise. The^{reuocationof the Will can be} presumed bg the conduct of the testator.^{For example, testator} may make bequest of^{propeftyin his Will to o person, but he mag} dispose of thc said^{propeftAduring his lde time This is called} implied reuocation i.e.,^{reuocationby conduct. If th-eWill u)asseen} u-tith the testator, but^{coulcl not be} found^{after the death of} testator, it tuilt be^{presumed.at the same has been reuokedby th'e} testator bg destroging^{the same.}

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Admittedly, Will^{was executed by Balamma in favour of} the plaintiff on^{23.06.1987and it was also registered' The trial} Court believed the^{Will on the groundthat if at al1 the Willwas} not executed, P.W.1^{cannot get the CertihedCopyof the same'} As she contended^{that Wjll was damaged,the Certilied Copy of} the Will can be^{received in cvidence and in view of the evidence} of P.W.3 son of the^{attester, and evidence of P'W 2, whoscribed} the Wi11, it can be^{relied upon. This court also hnds that thereis} no reason to disbelieve^{the execution of the Wil1, but as} Balamma also executed^{thc Agreementof Sale in favour of the} defendants No.2 & 3, it^{is for the Court to see whether she} revoked the Will during her life time or not.

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Admittedly, P.W.l has not filed the original Will before the Court and she mainly contended that her mother has shown the damaged Will prior to her death, but after her death she could not trace it out. The Balamma died 13 years after the execution of the Will i.e, in the year 2000 and prior to her death, she executed the Agreement of Sale just 9 days prior to her death and also authorized her husband to execute the registered sale deed, as she was not feeling well, in the sale deed it was mentioned that she can take care of her six daughters and vendees need not face any problem. Even in the Will deed, she reserved her right to revoke the Will and execution of the Agreement of Sale just before her death clearly shows that she revoked the WiIl and sold the same property to the fathers of defendants No.2 & 3 by duly receiving the advance amount with a direction to pay the balance amount on 30.0g.2000 and accordingly, the said amount was paid arrd defendant No.1 also executed the registered sale deeds in their favour. Immediately, they obtained Pattadar Passbook and title deeds and got mutated their names in the revenue records and also filed various applications before the authorities of Hyderabad Urban Development Authority and also gave representation when their land was acquired by the Government. Even in the Notification given by the Government, the names of the defendants No.2 & 3

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were reflecte(l as owners ol the^{property immediately afterthe} execution of the sale deeds^and thus^{they are in possession of} the suit scherlule properE,^{from then onwards.}

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Though, the^{plaintifistated that she was in continuous} possession of the propertv.^{her motherwas in possession of the} property till 2OO0 and from^{then onwards it is in the possession} of the defendants^{No.2 & 3 and thus she was never in} possession of the property.^{She also stated that inher} Cross-examin ation^{thatI n the year2OO3 she came to know} about the mutation^{of r he land in the name of defendants} No.2 & 3, bul she^{hled the Suit on 20.04.2006' The contention} of the defendants is^{that lhe Suit is hled beyond the periodof} limitation ancl is^{not maintainable. If at all, the plaintiffreally} taken care of her^{mother tillher death, the question of} execution of the^{sale decds by her mother infavourof} defendants^{N, r.2 & 3 does rrol arise.}

¶95

The learned Counscl^{for the plaintiff contended that there} is no endorsement on^{Ex.B21that itwas read over and} explained to her, but the document^{was written in Teiugu in the} presence of her husband and other daughters and sons-in-law and they signed on the saicl document. Therefore, the minor

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discrepancies regarding the differencesⁱⁿ Ink^{and alterationsin} the document which are pointed out by^{the plaintiffcannot be} accepted. When it is the case of the^plaintiff that^{her mother} executed the Will deed in her favour in the^{year 1987 itself, why} it was not acted upon and why her name was not mutatedⁱⁿ the revenue records either during her life time or after her death immediately was not explained by her at any point of time.

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The perusal of the record shows that the husband of the plaintiff intended to grab the property of Balamma. When the Suit was hled by her daughters for partition, he refused for partition and also got executed a Will deed through Balamma and also registered it and later six years after her death got filed the Suit through plaintiff by relying upon the said Will. In fact, P.W. I has no knowledge of the execution of the Will. The trial Court observed that defendants could not examine defendant No.l or the other daughters of Balamma to substantiate the Agreement of Sale under Ex.821 and dismissed their Counter claim. Defendants 2 & 3 stated that defendant No.1 is the father of the plaintiff. Though, he executed the sale deed in their favour, he remained exparte. It is for the plaintiff to examine her father, as he was present at the time of execution of Ex.B21. The defendant No. 1 was present not only at the time of

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execution of Ilx.B2l, but also executed^{registered sale} deedsⁱⁿ favour of defendants No.2 &' 3 after^{the death of his wifeas per} the authorization^given bv her by^{duly receiving the balance} amount. When he^{registcredthe document infavourof} defendants No.2 & 3 on^{30.08.200Oitself, it cannot be believed} that plaintiff has no^{knou'ledgeof the execution of the sale} deeds till 2003 or till^{2006 u,hen she f1led the Suit, as her father} was residing with her.^{Shc has not examined the defendant} No.1 for the reasons^{best known to her, though he is one ofthe} crucial witnesses^{for her. When she herselfcouldnot examine} her father and sisters,^{it is not practicable for the defendants} No.2 & 3 to get the^{family members of plaintiff as witnesses and} thus the trial Court^{erredir-r appreciating the facts properly'}

¶101

Though, P.W.1^{stateclthat the original Will wasdamaged,} it has never seen^{the light of the day and moreover Balamma} executed the Agreement^{of Sale during her iife time by duly} authorizing her husband^{to execute the saledeeds even in case} of her death and thus it^{can be safely presumedthat she} revoked the Wili executed^{b1'her way back in the year 1987by} implied rcvor:ation and it can also. be^presumed that the damaged Will was found s.hen testator was alive and it could not be found :rfter her death, and it was revoked by the testator

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by destroying the same. Therefore, the authenticity of the Ex.B21 cannot be doubted. The argument of the plaintiff Counsel that as on the date of her death, the earlier Will was neither revoked nor cancelled cannot be accepted. Though, the plaintiff stated that one month prior to the date of execution of the Ex.B21 i.e, 1 1.06.2000, her mother was not in sound state of mind and unconscious and died on 20.06.2000, with serious illness is not tenable, as she was not present on I 1.O6.2000 and not attested the Ex.B2l and not even opposed the execution of Ex.B27 on the ground that Balamma already executed Will in her favour. When Ex.B21 was produced before the Court, it was impounded and in pursuance of Ex.821, registered sale deeds were executed by defendant No. 1 0n 20.0g.2000. Therefore, there is no reason to disbelieve Ex.B21.

¶104

The plaintiffs, Counsel contended that only one appeal has been preferred against the Judgment and decree of the triar court and no appear is I ed against the dismissal of the Counter claim. Whereas, the defendants Counsel stated the trial Court decided all the issues between the parties in a single trial and passed one decree as the suit and counter claim are decided in one suit, it is not necessary to flle two appeals.

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t$ t"-

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The learned Counsel for the^respondent No.l/piaintiff argued that it was not mentioned in^Ex.B2 I^{that she sold the} property to meet out her ntcdical expenses.^{Though it wasnot} specificalll' mentioncd in it,^{she executed the same 9 daysprior} to her death and received^{advance amount of Rs.58,300/- with} a direction to^pay the^{balat'rceamountin August, 2000 and it} clearly shou's that^{she was in need of the moneyat the fag end} of her 1ife. If at all,^{any of the daughters or her husbandwas in} a position to support^{her linanciallythere is no requirementfor} her to execute the^{Agreement of Sale in favour of fathers of} defendantsNo.2&3on^{1 1.06 2000.}

¶108

27 . The learned^{Counscl for the respondentNo' l/plaintiff} further contended^{that dclendant No. 1 is not competentto} execute sale deeds.^{Admittedly, defendant No 1 executedsale} deeds as per the^{authorizationgivenby her wife Ba-1amma and} in pursuance of the^{sanlc, PattadarPassbook and title deed} were also issued under^{Ex.ll19& 820. Plaintiff neversought for} cancellation of the^{mutatiou in favour of defendantsNo 2 & 3} and thus the Pattadar^{Passbookand title deed issued by M'RO} under Section 6 of the Records of^{Rights Act by dulyfoilowing} the procedurc shall be prcsumed to be valid and the plaintiff cannot seek for cancellation of the sale deeds without seeking

i I i I I

for cancellation of the entries in the revenue records. The learned Counsel for the defendants contended that sale deeds were registered on 06.09.2000 and the registration of the sale deeds is a public notice and thus she has to file the Suit within 3 years from the date of registration as per Article 3g of the Limitation Act, but the Suit was filed beyond 3 years and it is barred by limitation. There is no mention regarding execution of the Will in Ex.A2 1 and thus the defendants have no knowledge and thus the defendants are the bonafide purchasers without the knowledge of the Will and moreover, they are in continuous possession from 2006 onwards. Therefore, this court finds that it is just and reasonable to set aside the Judgment of the trial Court.

¶114

(

¶115

In the result, the appeal suit is allowed by setting aside the Judgment of the trial Court in O.S.No.26 of 2OO6 dated 02.O8.2O1O. The respondent No.1/ptaintiff is not declared as the absolute owner of the property and thus she is not entitled for declaration of sale deeds executed by respondent No.2/defendant No. l as null and void, as the respondent No.2 already executecl sale deeds in favour of fathers of the appellants/defendants No.2 & 3 after receiving balance sare consideration and they also got mutated their names in the

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revenue record.s^{and are in possession of the property from the} date of prtrchase Counter^{claim hled by} the appellants/^{rlefendantsNo.2 & 3 is also aliowed} No order as to

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costs

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Miscellaneous^{petitions pending, ifany' shall stand}

closed

sd/'K s[+xEt?s[tR

//TRUE^COPY//

tat

SECTION^OFFICER

One Fair^{Copy to the Hon'ble Smt JusticeP'Sree Sudha} ,rrs '^q'|r --(t'oi H"t Lordships kind perusal)

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to'1 . ,n"^{Senior Civil Judge' Medak District' at Medak' (with Record'if any)}

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1.,?#r1?i"i3""r"t"ry,^{Unio-nor tndia Ministry or law, Justice and} -' CorPunY Affairs' New Delhi

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The^{Secretary norl"tJ.n.sociation (TG) Library, High court} Ad^{vo cate} to^{P U cr} .'".i':'33ii^{5oi l1?'1f ,',' o *a9} 9ll : Rl \ l y f,' 4. one^{CC to SRI' rtit'!"r'r'FnnsAD'Advocate tOPUCI}

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Two^{CD CoPies}

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L.^{q. q';.} { a&d

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HIGH COURT DATED:1310412023

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JUDGMENT

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AS.No.726 of 2010

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1 i't r--
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1 2 illAY 2023 rl
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ALLOWING THE APPEAL SUIT

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IN THE HIGH COURT FOR THE^{STATEOF TELANGANA} AT HYDERABAD

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THURSDAY, THE THIRTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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APPEAL SUIT NO: 726 OF 2010

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Between:

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'l . Kothawalli Raji Reddy, S/o. Late Veera Reddy, Rl/o. H.No. Bollaram (V) Jinnaram Mandal, Medak District.

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Kothawalli Hari Krishn-a. nqO9y, S/o. Late Veera Reddy, R/o. H.No. Bollaram (V) Jinnaram Mandal, Medak District.

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AND⁾

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..AppellanUDefendants 2 and 3

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Mrs. Kanukala Sathemma, Wo. K. Easwar Reddy, Occ.Housewife, Rl/o. Bollaram of Jinnaram Mandal, Medak District.^''

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Bachupally Narayan Reddy, S/o. Late Shiva Reddv. Maior. R/o. H.No. 1-44,.Boilaam (V) Jinnaram.Mandal, Medak Distr6ict, 1bef. tto.t remained Exparte in the suit)

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...Respondent/Defendant No. 1

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Appeal Under Section 96 Read with order 41 Rure 1 of cpc against the Judgment and Decree dated.02.08.2010 passed in oS No. 26 of 2006 on the file of the Court of the Senior Civil Judge, Medak District, at Medak.

¶155

This appeal coming on for hearing and upon perusing the Memorandum of Appeal, the order of the Lower court and the material papers in the case, and upon hearing the arguments of sRl. NIMMANAGoI sRlNlvAS, Advocate, for the Appellants and Sri M. S. N. PRASAD, for the Respondents.

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This Court doth Judgment and Decree as follows:-

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'1 . That the Appeal Suit be and hereby is allowed^{by the setting asidethe} Judgment of the^{Senior Civil Judge, Medak District in O'S No' 26 of} 2006 dated 02.08.2010.

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That the Respondent^{No 1/plaintiff be and hereby is not declared as} the absolute owner^{of the property andthus sheis not entitled for} declarationofsaledeedsexecutedbyrespondentNo.2/defendantNo.l as null and void; and

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That the respondent^{No.2 has already executedsaledeedsin favour of} fathers of the appellants/defendants^{No.2& 3 after receiving balance} sale consideration^{andthey alsogot mutated their names in the} revenue records and^{are in possession of the property from the date of} purchase.

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