APHC010251912010 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3365] THURSDAY ,THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR APPEAL SUIT NO: 156/2010 Between: Jalli Venkata Seshaiah and Others ...APPELLANT(S) AND Papineni Pramila Kumari and Others ...RESPONDENT(S) Counsel for the Appellant(S): 1. T D PANI KUMAR 2. . 3. Y L SIVA KALPANA REDDY Counsel for the Respondent(S): 1. 2. M P CHANDRAMOULI 3. RAMA CHANDRA RAO GURRAM 4. T V S PRABHAKARA RAO 5. MUNNANGI THANMAI KRISHNA 6. S LAKSHMINARAYANA REDDY 2 Dr.VRKS,J AS.No.156 of 2010&Batch 7. M VENKATA NARAYANA CIVIL REVISION PETITION NO: 3256/2019 Between: Papineni Prameela Kumari and Others ...PETITIONER(S) AND Jalli Venkata Seshaiah and Others ...RESPONDENT(S) Counsel for the Petitioner(S): 1. M P CHANDRAMOULI 2. RAMA CHANDRA RAO GURRAM Counsel for the Respondent(S): 1. T D PANI KUMAR CIVIL REVISION PETITION NO: 3267/2019 Between: Papineni Pramella Kumari Died and Others ...PETITIONER(S) AND Jalli Venkata Seshaiah and Others ...RESPONDENT(S) Counsel for the Petitioner(S): 1. M P CHANDRAMOULI 2. RAMA CHANDRA RAO GURRAM Counsel for the Respondent(S): 1. T D PANI KUMAR The Court made the following: 3 Dr.VRKS,J AS.No.156 of 2010&Batch THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR APPEAL SUIT No. 156 of 2010 and CIVIL REVISION PETITION Nos.3256 and 3267 of 2019 COMMON JUDGMENT: 1. In Rammurthy Nagar, Nellore, there is a house and a vacant site describing them as plaint-A schedule and plaint-B schedule, O.S.No.34 of 2001 was filed before learned III Additional District Judge (Fast Track Court), Nellore. Prayer in the suit was to declare the plaintiffs as the absolute owners of the plaint schedule properties and for a direction to the defendants therein to deliver possession of the said properties and for further direction to the defendants to pay to the plaintiffs damages at the rate of Rs.2,000/- per month as the defendants have been in illegal possession and occupation of the plaint schedule properties. Defendants filed their written statement disputing the ownership claimed by the plaintiffs. Defendants asserted and admitted that they have been in possession of the said schedule properties. They claimed ownership over these properties under a registered will dated 04.11.2000 and prayed for dismissal of the suit. 4 Dr.VRKS,J AS.No.156 of 2010&Batch 2. Learned trial court settled following issues for trial. 1. Whether the plaint A and B schedule properties are the ancestral properties of the deceased K. Parankusa Rao as contended by the plaintiffs? 2. Whether the plaint A and B schedule properties are the self acquired properties of the deceased K. Parankusa Rao as contended by the defendants? 3. Whether the deceased K. Parankusa Rao executed his last Will and testament dt.04.11.2000 bequeathing the properties stated therein in favour of the defendants as contended by the defendants? 4. Whether the plaintiffs are entitled for declaration and delivery of possession as prayed for? 5. Whether the plaintiffs are entitled for damages at Rs.2000/- pm from the defendants as prayed for by the plaintiffs? 6. To what relief? 3. During trial, the evidence of PWs.1 to 8 and Ex. A1 to A21 and the evidence of DWs.1 and 2 and Ex. B1 to B13 were placed before the trial court. After analysis of the evidence and the contentions raised on both sides, the trial court recorded its findings stating that as per the contentions on both sides, the 5 Dr.VRKS,J AS.No.156 of 2010&Batch properties originally belonged to Sri K. Parankusa Rao. It held that Sri K. Parankusa Rao had earlier sold out properties he got from his ancestors under a partition deed and utilising part of those funds and utilising his own self-acquired money he purchased the plaint schedule properties. It further recorded that the first plaintiff in the suit is wife of Sri K. Parankusa Rao and the second plaintiff in the suit is their daughter. According to the trial court, succession operated, and they were entitled to be declared as owners of the plaint schedule properties. It disbelieved the will said to have been executed by Sri K. Parankusa Rao and stated that defendants failed to show their right to continue in possession. With reference to damages, it had recorded its reasons and refused to grant any damages to the plaintiffs. It passed the judgement in favour of the plaintiffs and against the defendants in the following terms. “In the result, the suit is partly decreed with proportionate costs declaring that the plaintiffs 1 and 2 are the absolute owners of the plaint 'A' and 'B' schedule properties and the defendants 1 and 2 are directed to deliver vacant possession of the said properties to the plaintiffs 1 and 2 within one month from the date of decree. The claim of plaintiffs for grant of damages at the rate of Rs.2,000/- per month is dismissed.” 6 Dr.VRKS,J AS.No.156 of 2010&Batch 4. Assailing the said judgement dated 05.02.2010 of the trial court, the defendants in the suit preferred A.S.No. 156 of 2010. The respondents in this appeal are the plaintiffs in the suit. 5. During pendency of the suit, the appellants/defendants prayed for certain interim measures and filed ASMP.No. 428 of 2010. A learned judge of this court while granting stay of execution of decree of the trial court directed the defendants/appellants to continue to deposit Rs.1,000/- per month, and if they failed to do it, the respondents/plaintiffs were permitted to proceed further with the execution of the impugned judgement and decree. Sometime later, when the respondents/plaintiffs prayed for vacating the stay, a learned Judge of this court modified the earlier order and revised the amount of deposit to be made by the appellants/defendants stating that from July 2010 onwards, the appellants/defendants were directed to deposit Rs.2,000/- per month. 6. Respondents/plaintiffs initially filed E.P.No. 21 of 2010 praying for execution of the decree. The learned executing court by virtue of orders of stay granted by this court did not proceed further with the execution. Thereafter, the plaintiffs/decree holders 7 Dr.VRKS,J AS.No.156 of 2010&Batch claimed that defendants/judgment debtors committed default in making remittances and thus violated the orders of this court, and that by virtue of the orders of this court stay stood vacated because of their default and prayed for delivery of decree mentioned properties. This prayer they made in E.A.No. 4 of 2014 in E.P.No. 21 of 2010. When notices were served on judgement debtors, they did not choose to appear and contest. The execution court, after conducting the necessary enquiry allowed the execution application and ordered delivery of possession of the decree mentioned properties. Court Ameen executed the delivery warrant and reported back to the execution court and delivery was recorded. 7. Questioning the assertion of decree holders, the defendants/judgement debtors moved the execution court and filed E.A.No.10 of 2014 and E.A.No.12 of 2014. By these applications, they prayed the execution court to set aside the order dated 17.07.2014 passed in E.A.No.4 of 2014 in E.P.No.21 of 2010 and further prayed the execution court to grant redelivery of possession of the property contending that there was no violations of orders of this court. After due enquiry of these two applications moved by the judgement debtors, the execution court 8 Dr.VRKS,J AS.No.156 of 2010&Batch by a common order dated 23.10.2019 allowed those applications of judgment debtors and set aside its order of delivery of possession granted to the decree holders and directed decree holders to redeliver the possession of the property to the judgement debtors. 8. This above-mentioned common order forced the decree holders to file the present two civil revision petitions under section 115 CPC. 9. As against order in E.A.No.10 of 2014, CRP.No.3267 of 2019 and as against orders in E.A.No.12 of 2014, CRP.No.3256 of 2019 are filed. In both the revisions, the decree holders prayed for setting aside of the impugned orders of the execution court. 10. Heard arguments of T.Phani Kumar, learned counsel for appellants and Sri Rama Chandra Rao Gurram, learned counsel for respondents. 11. Learned counsel on both sides have stated that a decision in the appeal automatically governs these two revisions also. 12. To appreciate the contentions raised in the appeal and the revisions, the following aspects are required to be noticed: - 9 Dr.VRKS,J AS.No.156 of 2010&Batch Sri K.Parankusa Rao was DySP in the police department. He married Pramila Kumari on 28.05.1948. The said woman was a teacher by occupation. During their wedlock, they were blessed with a daughter by the name Revathi Devi. Her marriage was solemnized with Sri P.Srinivasa Rao on 14.12.1969. The suit was initially filed by the above-mentioned wife and daughter of Sri K.Parankusa Rao. Sri K.Parankusa Rao died on 30.10.2001. According to the plaintiffs, he died intestate, and the property devolved on his widow and daughter. 13. The averments in the plaint referred to certain facts stating that a woman by name J.Seshachalamma did not belong to their caste, and she never married Sri K.Parankusa Rao and there was some sort of relationship between them and Sri K.Parankusa Rao had executed a registered will dated 29.07.1995 in favour of the said woman/ J.Seshachalamma. It is also stated that Sri J.Seshachalamma predeceased the testator/ Sri K.Parankusa Rao and therefore, the registered will dated 29.07.1995 had legally become void. 14. The further averments in the plaint are that the defendants in the suit were neither related to Sri K.Parankusa Rao nor to the 10 Dr.VRKS,J AS.No.156 of 2010&Batch plaintiffs nor to J.Seshachalamma and they illegally occupied the properties, and they started claiming that Sri K.Parankusa Rao executed a registered will dated 04.11.2000 in their favour. It is in the context of the above circumstances and facts, the plaintiffs had to sue for declaration of title and recovery of possession. 15. The defendants in the suit filed their written statement contending that J.Seshachalamma married Sri K.Parankusa Rao in the year 1956 and she died on 30.06.1997. That these defendants have been taking care of Sri K.Parankusa Rao since his first wife, P. Pramila Kumari deserted him decades ago. It is out of love and affection, Sri K.Parankusa Rao executed registered will dated 04.11.2000 in their favour, and by virtue of it, they have been in possession and enjoyment of the property, and they prayed for dismissal of the suit. 16. Ex. B1 is the original registered will dated 04.11.2000. It bears the alleged thumb impression of the testator. This Ex. B1/will bears signatures of Sri K. Sita Kumar and Sri Chandra Sekhar Rao as attesting witnesses. The learned trial court disbelieved this will on the following grounds. 11 Dr.VRKS,J AS.No.156 of 2010&Batch • That the defendants in the suit having propounded Ex. B1 will dated 04.11.2000 were obliged under section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872 to prove due execution of the will by examining at least one of the attestors but the defendants in the suit did not examine any of the attestors and therefore, the will was not proved • D1 in the suit Sri J.Venkata Seshaiah testified as DW.1 and in his evidence, he stated that Sri K.Parankusa Rao after the execution of Ex.B1 will had executed an agreement for sale dated 26.11.2001 in favour of a woman by name Smt.V.Vasantha Laxmi. That is a proof positive that the testator did not want the estate to be bequeathed as narrated under the will and therefore Ex. B1 will dated 04.11.2000 should be considered as a will that was cancelled by the testator himself. • That, D1 deposing as DW.1 during his evidence stated that Sri K.Parankusa Rao executed another will dated 05.03.2001 in his favour. That sworn evidence would indicate that Ex. B1 will dated 04.11.2000 was not the last 12 Dr.VRKS,J AS.No.156 of 2010&Batch will of the testator and therefore Ex.B1 will dated 04.11.2000 could not be given effect too. Further, the subsequent will which is stated to be dated 05.03.2001, which was asserted by DW.1 in his evidence, thus stated to be the last will of the testator was never placed for consideration before the trial court and no one connected to that will such as attestors, scribe was examined in proof of the said alleged will dated 05.03.2001. 17. It was in the above circumstances; it disbelieved the case of the defendants. It considered various documents filed in Ex. A series such as Ex. A1 which is a copy of registered sale deed dated 31.08.1974 and recorded that by those documents, Sri K.Parankusa Rao sold out certain properties which he got from his ancestors and utilising that money as well as his self earnings he acquired plaint schedule properties under Ex.A2 and therefore the suit schedule properties acquired the legal character of ancestral properties. Finding that the plaintiffs are the legitimate spouse and daughter of the deceased Sri K.Parankusa Rao, it granted decree as prayed for and declared the title of the plaintiffs and granted recovery of possession of the immovable properties. 13 Dr.VRKS,J AS.No.156 of 2010&Batch 18. In the memorandum of grounds of appeal, the appellants/defendants contended that the respondents/plaintiffs did not challenge the existence and validity of registered will dated 04.11.2000/Ex.B1. The trial court failed to consider the evidence of DW.2 and committed error in negativing the case of the defendants and prayed for setting aside the judgement of the trial court. 19. During the course of arguments, the contentions raised on behalf of the appellants by the learned counsel is that as the pleadings themselves would indicate that the plaintiffs had full knowledge of existence of Ex.B1 will, they ought to have sought for declaration challenging the validity of the will and since the plaintiffs did not in their suit seek declaration to nullify these documents, trial court should have dismissed the suit. 20. For appellants two rulings are cited. In Savithri Vs Karthyayani Amma1, the question before their Lordships was whether it amounted to suspicious circumstance when a testator executed a will favour of certain persons in exclusion of natural heirs? Their Lordships held that in 1 2007 (11) SCC 621 14 Dr.VRKS,J AS.No.156 of 2010&Batch the given facts and circumstances, the testator having lived for seven years subsequent to the execution of the will never chose to cancel it, thereby indicating his desire to bequeath properties in favour of those legatees and therefore upheld the will. 21. Their Lordships in the above ruling have enunciated the law that at least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time, he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that the testator has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine. The onus of proving the will is always on the propounder. 22. Learned counsel for appellants contended that the weakness of the defence cannot be a justification to decree the 15 Dr.VRKS,J AS.No.156 of 2010&Batch suit in favour of the plaintiffs and cited Smriti Debbarma Vs Sri Prabha Ranjan Debbarma2 23. As against the said submissions, the learned counsel for respondents/ plaintiffs argued that all that was pleaded by the plaintiffs was established by the plaintiffs before the court below through appropriate evidence and the trial court rightly accepted their version and recorded rightful conclusions. That the will propounded by the appellants/defendants was disbelieved for various factual and legal reasons and the judgement of the trial court is impeccable, and the appeal has no substance and therefore it shall be dismissed. 24. For respondents/plaintiffs, learned counsel cited Jagdish Chand Sharma Vs Narain Singh Saini3. In this ruling, their Lordships dealt with section 63 of the Indian Succession Act and sections 68 and 71 of Indian Evidence Act and held that failure to examine attesting witness should lead to the conclusion that the will is not proved. 2 2023 SCC Online SC 9 3 2015 (8) SCC 615 16 Dr.VRKS,J AS.No.156 of 2010&Batch 25. The following points fall for consideration in this appeal. 1. Whether the plaintiffs who by their pleadings disputed Ex.B1 will were under a legal obligation to seek declaration for avoidance of such will in addition to their prayer for declaration of their own title made in the suit? 2. Whether the judgment of the trial court was rendered based on failure of defendants to prove their case but not on the merits of the plaintiffs’ case and therefore the impugned judgement is liable to be set aside? Points 1 and 2: - 26. This court has considered the entire oral and documentary evidence led before the trial court and considered the judgement impugned in this appeal. 27. The plaint schedule properties belonged to Sri K.Parankusa Rao and the first plaintiff in the suit is his legally wedded wife and the second plaintiff is their legitimate daughter are all facts borne by the record and are not disputed in this appeal. Parties are Hindus and are governed by Hindu Succession Act. The wife and 17 Dr.VRKS,J AS.No.156 of 2010&Batch daughter of the deceased male Hindu are Class – I legal heirs and on the death of Sri K.Parankusa Rao in the year 2001 succession operated and the properties devolved on the first and second plaintiff. That was the position that was available by the time the suit was instituted in the year 2001. Then what prompted them to sue for declaration of title? The plaintiffs admitted that they have not been in possession and the defendants were in possession of the property. When they wanted their property back, they had come to know from the defendants through their paper publication that they were claiming property under Ex.B1 will. It is that rival claim of title raised by the defendants which forced the plaintiffs to sue for declaration of their title and recovery of possession. They claimed the title under succession. They averred in their pleadings that the will propounded by the defendants is incorrect, and that was not executed by Sri K.Parankusa Rao. Declaration of title based on succession is broader relief and the dispute raised in the plaint about the will is to the effect that the plaintiffs did not accept the execution of the will. The moment they noticed that the opponents have been canvassing a will, they were prudent enough to appreciate that their title was in dispute and therefore they prayed for declaration 18 Dr.VRKS,J AS.No.156 of 2010&Batch of their title. Now the question is whether such plaintiffs were also under a legal need to seek a further declaration to avoid the Ex.B1 will. Before the trial court, the defendants/appellants were the parties who propounded Ex. B1 will. The rulings referred above consistently laid down the principle that it was the burden of those who propounded the will to prove the due execution of the will. D1 testified as DW.1 and a third party testified as DW.2. Both were not attesters to the disputed will. Neither of them was a scribe of the will. Thus, there was no legal evidence placed before the trial court by the propounders in establishing their case of obtaining bequest under Ex.B1 will. Trial court at length considered the evidence of PWs.1 to 8 and found merit in the claim of the plaintiffs. Those findings could be found wrong only if the propounders of the will/defendants/appellants were able to establish due execution of Ex.B1 will. It is undisputed that Ex.B1 will was not proved in terms of law. Having lost the case, the novel approach adopted by the appellants /defendants is that plaintiffs were to seek declaration to avoid the will also. In other words, the claim of the appellants is that though they are the propounders of the will they should not have been asked to prove the will and those who disputed the will were obliged to seek 19 Dr.VRKS,J AS.No.156 of 2010&Batch avoidance of the will. This is a strange submission. Such submission has no legal force. Plaintiffs to succeed that they are the title holders placed more than enough evidence by virtue of which they proved their title and proved their entitlement for asking for recovery of possession of the property. In suits for declaration of title and recovery of possession, the defendants cannot be dispossessed unless the plaintiffs have established a better title and rights over the properties. A person in possession of immovable properties in the assumed character as the owners have a legal right against the entire world, except the rightful owners. The appellant/defendants are in no way related to the family of Sri K.Parankusa Rao. The only fact that was never in dispute is that they have been in possession of the property by the time the suit was instituted by the plaintiffs. When the plaintiffs were able to clearly establish their title over the immovable property, the natural consequence should follow, and the possession of the property should be directed to be given to the plaintiffs. Trial court did it. The failure of the defendants in not legally proving execution of the Ex. B1 will is a failure, and that cannot be considered as a weakness of the defendants leading to plaintiffs getting a decree in their favour. The law has been that 20 Dr.VRKS,J AS.No.156 of 2010&Batch the burden lies on the party, who asserts particular state of things on the basis of which the party claims relief (section 101 of the Indian Evidence Act). There is also section 102 of the Indian Evidence Act, the purport of which is that if both parties failed to adduce evidence, the suit must fail and by virtue of that principle, the burden has to be placed on the parties. In the case at hand, the title over the plaint schedule properties was in dispute. Plaintiffs claim title by virtue of succession. That was proved. Therefore, they were entitled for a decree. Defendants in the suit claimed title based on Ex.B1 will. They failed to prove due execution of Ex.B1 will. Therefore, defendants case failed. Coming to the plaintiffs, they never admitted due execution of Ex.B1 will by Sri K.Parankusa Rao. The defendants were entitled to protect their possession, only if they are able to show a better title. Their assertion of title is based on Ex.B1 will and there was their failure in proving due execution of Ex.B1 will. Thus, they failed to show any right whatsoever in them to hang on to the plaint schedule properties. The clear mandate of section 101 of the Indian Evidence Act is that burden of proving the fact rests with the party who substantially asserts in the affirmative and not on the party which is denying it. In the case at hand, plaintiffs 21 Dr.VRKS,J AS.No.156 of 2010&Batch have been denying due execution of Ex.B1 will. Therefore, there was no need for them to pray for declaration to avoid Ex.B1 will. If the argument of the appellants/defendants is accepted, it makes it legally obligatory on every title holder not only to prove their legitimate source of title but also to disprove all possible claims of defendants by praying reliefs of declaration as against every other document the opponent would propound or likely to propound. Such contention of defendants/appellants is without any merit at all. The judgment of the trial court shall be upheld in this appeal. 28. As a matter of fact, that part of the decree which directed the defendants to deliver possession of the property to the plaintiffs was fulfilled by the orders of the executing court. Whatever interim measures that were granted to the appellants/defendants are only interim measures and they do not confer any rights on the appellants/defendants to hold on to possession of the properties. Appellants have not shown any substantive right to restitution. In such circumstances, the two revisions filed by the decree holders/ plaintiffs are to be allowed. The orders impugned therein are set aside. Both the points are answered against the appellants. 22 Dr.VRKS,J AS.No.156 of 2010&Batch 29. In the result, 1. A.S.No.156 of 2010 is dismissed. Consequently, judgment dated 05.02.2010 in O.S.No.34 of 2001 of the learned III Additional District Judge (Fast Track Court), Nellore is confirmed. 2. C.R.P.No.3256 of 2019 is allowed. The impugned order is set aside. Consequently, the earlier orders of the executing court delivering possession in favour of the decree holders/plaintiffs is recorded as valid. 3. C.R.P.No.3267 of 2019 is allowed. The impugned order is set aside. Consequently, the earlier orders of the executing court delivering possession in favour of the decree holders/plaintiffs is recorded as valid. 4. As a sequel, miscellaneous applications, pending, if any, shall stand closed. ________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 17.04.2025 Dvs 23 Dr.VRKS,J AS.No.156 of 2010&Batch THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR 125 APPEAL SUIT No. 156 of 2010 and CIVIL REVISION PETITION Nos.3256 and 3267 of 2019 Date: 17.04.2025 Dvs