IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO APPEAL SUIT No.169 of 2014 o Appeal under Section 96 of CPC, against the Judgment and Decree made in O.S.No. 18 of 2002 dated 23.12.2013 on the file of the Additional Senior Civil Judge, Chittoor. Between: 1. R. Narayanaswamy Naidu, S/o. C.R. Ramachandra Naidu Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 2. R. Chandrasekhar Naidu, S/o. R. Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 3. N. Kothandarama Naidu, S/o. R. Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 4. Smt. N. Rajalakshmi, W/o. Ravindran, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 5. Kum. N. Sujatha, D/o. R.Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. ...Appellants/Plaintiffs AND 1. Smt. K. Jagadamba, (Died as per LRs 10 to 12) B.S. Balakrishnama Naidu, (Died as per LRs 13 to 15) 3. A. Mohan Reddy, S/o. Agaram Raghunadha Reddy, Hindu, Business, R/o. Agarampalli Village, Kanipalam Post, Irala Mandal, Chittoor District. 4. M. Prabhakar Reddy, S/o. M. Balakrishna Reddy, Hindu, Business, R/o. D.No. 10-115, Gandhi Road, Chittoor Town and District. 5. G. Lokanadha Reddy, S/o. Muni Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 6. Janakirama Reddy, S/o. G. Lokanadha Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 7. G. Bhanuprasad Reddy, S/o. G. Lokanadha Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 8. B. Krishna Reddy, S/o. Munaswamy Reddy, Hindu, Cultivation, R/o. Eguva Kaluva Village, H/o. Patnam, Thavanampalle Mandal, Chittoor District. 9. P. Nagaraja Reddy, S/o. Late P. Sidda Reddy, Hindu, Cultivation, Residing at Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 10.Smt. L. Anasuya, W/o. L. Ethirajulu Naidu, Mutharapalli Village, Thavanampalli Mandalam, Chittoor District.(A.P). 11.Smt. B. Kasthuri, W/o. B. Balakrishnam Naidu Bangarupalyam Mandal, Chittoor District (A.P). 12.Smt. V. Nagabhushanam, W/o. V. Chandra Sekhara Naidu, No.9, 12‘'' Main, Revenue Lay-out, Padmanabha Nagar, Bangalore, Karnataka, Setter! Village, ...Respondents (Respondents 10 to 12 are the Legal Representatives of deceased 1 respondent) 13.B Santhosh, S/o. Late B.S. Balakrishnama Naidu, Settrai Village, Thumbakuppam Post, Bangarupalem Mandal, Chittoor District. 14. B. Sandeep, S/o. Late B.S. Balakrishnama Naidu, Mutharapalli, Thavanampalli Mandal, Chittoor District. IS.Smt. B. Ramani, W/o. B.R.Mohan Kumar, 1754, Marvel Infinity, 33'^^ Cross, 14*^ Main, Banasankari 2""' Stage, Bangalore-70. (Respondents 13 to 15 are the Legal Representatives of deceased 2^^^ respondent) (Respondents 10 to 12 and 13 to 15 are brought on record as LR’s of deceased respondent Nos. 1 and 2 vide court order dated 07.10.2023 in I.A.Nos.3 of 2022 and 1 of 2023 in A.S.No. 169 of 2014) ...Respondents lA NO: 2 OF 2021 Petition under Order 39 Rule 1 & 2 R/w 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 grant ad-interim injunction by restraining the respondents herein from alienating/ altering the physical features of petition schedule properties of Schedule I and Schedule II properties in O.S. No. 18 of 2002, on the file of Additional Senior Civil Judge, Chittoor. lA NO: 1 OF 2021 Petition under 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 allow the petitioner to file additional Evidence i.e. three (3) copies of wedding invitation cards printed in Telugu, English and Tamil languages be produced as additional evidence in the appeal A.S.No. 169 of 2014 pending disposal of the AS and pass Counsel for the Appellants : Sri D Vijaya Chandra Reddy Counsel for Respondent Nos.3 to 9: Sri P. Rajasekhar, representing Sri P Jagadish Chandra Prasad Counsel for Respondent No.10 Counsel for Respondent Nos.11,12,14 & 15 : Sri V Disha Chowdary Counsel for Respondent No.13 The Court made the following: : Sri Kanchumati Subba Rao : Sri C Narendra Babu 1 APHC010411522014 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3369] FRIDAY, THE TWENTY EIGHT DAY OF FEBRUARY TWO THOUSAND AND TWENTY-FIVE PRESENT THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO APPEAL SUIT NO: 169/2014 Between: R. Narayanaswamy Naidu and Others ...APPELLANT{S) AND Smt K Jagadamba and Others Counsel for the Appellant(S): 1. D VIJAYA CHANDRA REDDY ...RESPONDENT{S) Counsel for the Respondent(S): 1.CHILUKURI NARENDRA BABU 2.P JAGADISH CHANDRA PRASAD 3.VDISHACHOWDARY 4.kanchumati Subbarao The court made the following JUDGMENT: The appeal, under Section 96 of the Code of the Civil Procedure, 1908 (for short, 'C.P.C.'), is filed by the Appellants/Plaintiffs challenging the decree and judgment dated 23.12.2013 in O.S.No.18 of 2002 passed by the learned Additional Senior Civil Judge, Chittoor, (for short. Trial Court’). 1. 2. The Appellants are the Plaintiffs, who filed the suit in O.S.No.18 of 2002 against the Defendants seeking partition of plaint schedule properties into 2 two equal shares and to allot one such share to Plaintiffs by metes and bounds. 3. Referring to the parties as they are initially arrayed in the suit is reasonable to mitigate confusion and better comprehend the case. 4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated follows; as (i) Theppal Naidu and B. Srinivasulu Naidu are the sons, and Akkamma, Lakshmamma, Rangamma, Sundaramma, and Krishnamma are the daughters of Balia Ragama Naidu. Rangamma and Sundaramma were married to M. Narasimhulu Naidu, the nephew of Balia Ragama Naidu. Rangamma had one daughter, Lakshmamma, while Sundaramma had no children. Theppal Naidu and B. Srinivasulu Naidu were members of a Joint Hindu Family, with Theppal Naidu as the Manager. Balia Ragama Naidu was close to his son-in-law, M. Narasimhulu Naidu, and both he and Theppal Naidu supported M. Narasimhulu Naidu's family in developing his property. Lakshmamma is the M. Narasimhulu Naidu's only child, (ii) Theppal Naidu’s sisters Akkamma and Lakshmamma married Peddanna and K. Venkataswamy Naidu, respectively, who were Theppal Naidu’s maternal uncles. Theppal Naidu married Akkamma's daughter, Parvathamma, and Lakshmamma's daughter, Alimelu. K. Venkataswamy Naidu executed a will in favour of Theppal Naidu in 1963, granting him property in Mutharapalle village. M. Narasimhulu Naidu, brother-in-law of B. Theppal Naidu and B. Srinivasulu Naidu, served as Village Munsif of Thoompayanapal le and passed away around 1940, leaving behind his only daughter, Lakshmamma. Subsequently, Lakshmamma married B. Srinivasulu Naidu in 1942, who moved to Setteri as an illatom son-in-law. (iii) 3 B.Srinivasulu Naidu succeeded his father-in-iaw as Village Munsif for Thoompayanipalli. A family arrangement was made, where B. Theppal Naidu would retain the properties at Patnam Village, while B. Srinivasulu Naidu would settle in Setteri and manage his in-laws' property. B.Theppal Naidu died intestate in 1978, leaving his son B. Raghava Naidu and two daughters, Jagadamba and Murali, as his heirs. Both B. Theppal Naidu and B. Raghava Naidu declared their land holdings before the Land Reforms Tribunal, Chittoor, in C.C.306/BPM/75 dated 24.04.1976. B.Srinivasulu Naidu, however, never held property at Patnam. (iv) B. Raghava Naidu, being unmarried, and his sisters, Jagadamba and B. Murali, had been jointly enjoying the properties of B.Theppal Naidu after his death. Following Smt. Murali's intestate death in 1990, her heirs, including the 1®‘ Plaintiff and his children (Plaintiffs 2- 5), succeeded to her estate. B. Raghava Naidu, who assisted the Plaintiffs, continued to help the family until he died in 2001. B. Srinivasulu Naidu, the younger brother of B. Theppal Naidu, died intestate in 1946, leaving behind his only son, B. S. Balakrishnan Naidu (2"^^ Defendant). B. Theppal Naidu supported this family, particularly in agricultural operations, and assisted in the education of B. S. Balakrishnan Naidu, who later married Jagadhamba's 2"'^ daughter, (vi) After the death of B. Raghava Naidu on 31.01.2001, his estate was divided, with the 1®^ Defendant (Jagadhamba) inheriting half of the ancestral property and the Plaintiffs (as legal heirs of B. Raghava Naidu's sisters) inheriting the other half, (vii) During B. Raghava Naidu's lifetime, he executed a will bequeathing his self-acquired properties to Chengama Naidu. They assert joint rights with the 1®‘ Defendant over the family properties, including those of B. Raghava Naidu. After his death. Plaintiffs 1 and 3 managed Ac. 10.00 cents of papaya garden while other properties remained fallow. Upon his intestate death, the Plaintiffs and the 1 (V) St 4 Defendant, as legal heirs, inherited the estate, each entitled to half. However, the Defendant proposed payment to the Plaintiffs for their share in exchange for a relinquishment deed, which the Plaintiffs refused, leading to a dispute (viii) The 1 Defendant, in collusion with her son-in-law (the 2 Defendant), has been attempting to conceal the joint family assets and create fraudulent documents to transfer them to third parties. The Plaintiffs sent a legal notice to the Defendants on 14.07.2001,which the nd Defendants acknowledged but responded with false allegations. (ix) Smt. B. Murali, wife of the 1"‘ Plaintiff and mother of the other Plaintiffs. Her maternal grandfather, K. Venkataswamy Naidu, had gifted land to his son-in-law, B. Theppal Naidu, under a registered will dated 07.03.1968. B. Theppal Naidu enjoyed these properties, and several ancestral properties were sold or exchanged for development. (x) After issuing a legal notice, they learnt that Defendants 1 and 2 attempted to create fraudulent documents to deprive them of their legitimate rights to the joint properties. On 23.07.2001, the 1®* Plaintiff learned that the Defendants attempted to execute such documents at the Sub-Registrar's office in Chittoor. The 1 Plaintiff raised objections, submitting a letter to the Registering Authority to prevent the registration of these documents. Despite this, the Defendants proceeded with executing sale deeds, transferring property to Defendants 3 to 9, aiming to conceal and dispossess the Plaintiffs of their rightful share. The sale deeds executed by Defendants 1 and 2 are invalid and cannot bind them, as they lack the authority to sell the properties. These properties under joint possession, and the Plaintiffs assert that the 2"^^ Defendant and other buyers were fully aware of the Plaintiffs' rights. Consequently, the Plaintiffs seek a partition of the joint properties and have added Defendants 2 to 9 for proper adjudication. remain 5 The 1®' Defendant denied the allegations in the plaint and adopted the 2""' Defendant's written statement. In the written statement, the 2^"^ Defendant asserted as follows: 5. (i) B. Theppal Naidu and his brother B. Srinivasulu Naidu formed a Hindu Undivided Family. B. Theppal Naidu had one son, B. Raghava Naidu and one daughter, the Defendant. The 2 nd Defendant, the only son of Srinivasulu Naidu's younger brother, inherited his father’s share in the joint family properties after his father's death. B. Theppal Naidu, as the senior member, managed the properties until he died in 1978, leaving his share to Raghava Naidu and the 1 St Defendant. Raghava Naidu, suffering from psoriasis for 30 years, did not acquire any independent property and was cared for by the 2"^^ Defendant. The family continued to enjoy the joint family properties. Raghava Naidu died intestate on 31.01.2001, leaving his half share to the 1®‘ Defendant. The 2'^^ Defendant never lived in Setteri as an illatom son-in-law, instead residing in Mutharapalle Village, where he continued to live after Raghava Naidu's death. The 2"'"' Defendant and his cousin, Raghava Naidu, jointly enjoyed the family properties. The Mandal Revenue Officer of Thavanampalle issued a ration card listing the 2"^ Defendant as a Raghava Naidu family member. The 2"'^ Defendant states that he and the 1®* Defendant sold portions of the plaint schedule properties to Defendants 3 and 4 on 09.04.2001 to settle medical debts of the late Raghava Naidu, delivering possession. On 25.05.2001, the 1®‘ Defendant sold a 5/12‘^ share in the properties to the 2"^^ Defendant. Later, some of the items of schedule properties were sold to Defendants 5 to 9 on 23.07.2001, with possession delivered. Since then. Defendants 3 to 9 have had uninterrupted possession and enjoyment of their properties. The 2"'^ Defendant clarified that the properties at Setteri Village, unrelated to the joint family, belonged to his maternal grandfather and were inherited by him through his mother, the sole 6 nd legal heir. The 2 properties, about 20 km from Mutharapalle. Defendant has exclusive possession of these Setteri nd (iii) The 2 Defendant further claims that the Plaintiffs, who are unrelated to the family, fabricated a story to falsely claim they are successors of Raghava Naidu, exploiting the 2"'^ Defendant’s occasional visits to Setteri. They also created a false illatom narrative, attributing it to the 2"^^ Defendant’s father, Srinivasulu Naidu, to file this suit. The 2"'^ Defendant also alleges that the Plaintiffs, in collusion with Chengama Naidu, attempted to forge documents, including an alleged will of Raghava Naidu favouring Chengama Naidu, a stranger to both the 2 nd Defendant and Raghava Naidu's family. Raghava Naidu had no right to bequeath coparcenary property, and no such document was ever executed. Chengama Naidu is accused of instigating the Plaintiffs to claim the plaint schedule properties falsely. The 2'"'^ Defendant further asserts that he and the 1®* Defendant are the absolute owners of their respective property shares, except those sold to Defendants 3 to 9 in Mutharapalle and Patnam villages. They have enjoyed uninterrupted possession and management of these properties. Furthermore, the 2"^^ Defendant contends that the Plaintiffs have no merit in their claim and are not entitled to a half share in the plaint schedule properties. Therefore, the 2 Defendant requests that the suit be dismissed with costs. nd The 3'"' Defendant filed a written statement adopted by the 4**" written statement. In the written statement, the 3'^' Defendant asserts that Defendants 1 and 2 sold items 31 to 33 of the plaint schedule to him and the 4*^ Defendant through a Registered Sale Deed for valuable consideration, delivering possession as stated in paragraph 15 of the plaint. He denies the claim that the sale deed was executed to deceive or deprive the Plaintiffs of their alleged rights and maintains that it is valid and binding. The 3'"^ Defendant further asserts that he and the 4*^ Defendant are bona fide third-party purchasers. Upon inquiry in Mutharapalle village, they learned that the 1®‘ Defendant is the legal heir of the late Raghava Naidu, and the 2"^^ Defendant is a co-parcener 6. 7 in items 31 to 33. The properties were sold by Defendants 1 and 2 to satisfy legal necessities and discharge debts. Since the purchase, the Defendants 3 and 4 have jointly possessed the properties. Additionally, the 3"'^ Defendant states that after purchasing the properties, he and the Defendant constructed three sheds, a residential building, and a storeroom for brick manufacturing. They began brick production in 2001 and stored mud on items 31 and 33. The 3''^ Defendant further asserts that the Plaintiffs have no rights over the properties and have filed a vexatious suit against him. Therefore, he requests the dismissal of the suit with costs. The 5^*^ Defendant, in his written statement, asserts that the plaint schedule properties, along with other properties, were under the possession and management of Theppal Naidu^and his nephew, the Defendant. He states that Raghava Naidu, the son of Theppal Naidu, was not in good health during his lifetime, and the 2"'^ Defendant cared for him and managed the joint family properties after Theppal Naidu's death. The 2"^^ Defendant held a half share as a co-parcener in these properties. The Defendant further submits that he and Defendants 6 to 9 were landless and cultivated the plaint schedule land in Patnam Village on a yearly rental basis, providing a portion of the produce as per the agreed terms for several years. He claims the Plaintiffs are unrelated to Theppal Naidu or the 2"*^ Defendant and have no rights over the plaint schedule properties. After Raghava Naidu’s death, the 1®‘ Defendant inherited his share of the joint family properties. Subsequently, the 1®‘ Defendant sold 5/12*^ of the share in the joint family properties to the 2 Defendant, making him the absolute owner of the plaint schedule properties in Patnam Village and Mutharapalle Village. Additionally, the S**" Defendant states that he purchased item 34 of the plaint schedule property (Ac.0.70 cents) from the Defendant and his sons under a Registered Sale Deed dated 23.07.2001 for valuable consideration. He took physical possession of the property and has been in uninterrupted possession since then. The 5**^ 7. nd 8 Defendant concludes that item 34 was sold to meet the family needs of the Defendants 1 and 2 and requests the dismissal of the suit with costs. Defendants 6 to 9 have filed separate written statements, each supporting the version put forth by the 5*^ Defendant. 8. 9. Based on the pleadings, the Trial Court framed the following i (1) Whether the Pleintiffs ere entitled for pertition of the schedule property into two equal shares and to allot one such share as prayed for? (2) To what relief? issues: During the trial, on behalf of the Plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A.1 to A.20 and Exs.B1(A), B2(A) and B3(A). DWs.1 to 6 were examined and marked Exs.B.1 to B.8 documents on behalf of Defendants. 10. After completing the trial and hearing the arguments of both sides, the Trial Court dismissed the suit without costs. During the pendency of the Appeal, Respondents 1 and 2 passed away. According to the orders in I.As.No.3 and 1 of 2023 in A.S.No.169 of 2014, Respondents 10 to 12 and 13 to 15 were brought on record as the legal heirs of the deceased Respondents 1 and 2. Sri D Vijaya Chandra Reddy, learned counsel for the Appellants, argued that the Trial Court erred in framing the issues and failed to address the core issues of the suit. It incorrectly ruled that the deceased Smt. B. Murali was not the daughter of B. Theppal Naidu by his second wife, Alimelu. The issue should have been whether Alimelu was B. Theppal Naidu’s second wife. The Trial Court overlooked crucial evidence regarding their relationship, including the Regd. Will dated 07.03.1968, executed by Venkataswamy Naidu, father-in-law of B. Theppal Naidu, bequeathing his properties to his son-in- law. The will explicitly states that Alimelu was the daughter of Venkataswamy Naidu and married B. Theppal Naidu. This important evidence, marked 11. 12. 13. proper as Ex.A.16, was ignored. The Trial Court wrongly insisted that Ex.A.16 should proven through the testimony of an attester or scribe under Section 68 of the Indian Evidence Act, failing to recognise that proof is unnecessary for documents over 30 years old. It also disregarded the admissibility of the under Section 32(5) of the Evidence Act. Furthermore, the Trial Court failed properly consider the documents Ex.A.1 to A.3, A.8 to A. 10, and A. 16 to A.20, which firmly establish that Smt. Murali was indeed the daughter of B. Theppal Naidu and Alimelu. The authenticity of Ex.A.3 Sherman Memorial Girls High School, was also not correctly assessed despite being issued from the school's official register. Similarly, Ex.A.8 confirming Murali as B. Theppal Naidu’s daughter, and Ex.A.9 which show she was married to the r' Plaintiff, were not given due weight by the Trial Court. be Will to a study certificate from a letter and A.10, Per contra, Sri P. Raja Sekhar, learned counsel representing Sri P. Jagadish Chandra Prasad, learned counsel for the Respondents 3 to 9, Sri K. Subba Rao, learned counsel for the 10*^ Respondent, Sri V. Disha Chowdary, learned counsel for the Respondents 11, 12, 14 and 15 and Sri C. Narendra Babu, learned counsel for the respondent, contend that the Trial Court correctly appreciated the case facts and reached a correct conclusion. The given by the Trial Court do not require any interference. Concerning the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this court, the following points would arise for determination; 14. reasons 15. 1) Whether the Trial Court erred in concluding that the Plaintiffs failed to establish that the deceased, Smt Murali was the daughter of Theppal Naidu by his second wife, Alimelu. 2) Are the Plaintiffs entitled to a partition of the plaint schedule properties into two equal shares, with share being allocated to the Plaintiffs, as requested? one 10 3) Does the Trial Court’s judgment interference? need any POINT N0.1: Th© First Appellate Court, being the final court of fact, has jurisdiction to or affirm the Trial Court's findings. Considering the nature and 16. reverse scope of the First Appellate Court in Vinod Kumar V. Gangadhar\ the Hon’ble Supreme Court held that: 15. Again, in B.V. Nagesh v. H.V. Sreenivasa Murthy^, this court, taking note of all the earlierjudgments of this court, reiterated the principle as mentioned above with these words: 3. How the regular first appeal is to be disposed of by the appellate Court/High Court has been considered by this court various decisions. Order 41 Code of Civil Procedure deals with appeals from original decrees. Among the various rules. Rule 31 mandates that the Judgment of the appellate Court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate Court has jurisdiction to reverse or affirm the Trial Court's findings. The first appeal is a valuable right of the parties, and unless restricted by law, the whole case Is open to rehearing both questions of fact and law. The Judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for the decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeai is a valuable right, and the parties have a right to be heard on questions of law and facts. The judgment in the first appeal must address all the issues of law and fact and decide it by giving reasons supporting the findings. (Vide Santosh Hazari V. Purushottam Tiwari (Deceased) By LRs. MANU/SC/0091/2001 in ' MANU/SC/0946/2014 ^ MANU/SC/0768/2010 11 and Madhukar and ORs. V. Sangram and ORs. MANU/SC/0302/2001 The Court of First Appeal has jurisdiction to reverse or affirm the findings of the Trial Court. When the Court of First Appeal takes a different view, the Judgment of the first appellate Court must show the application of mind and record its findings based on the evidence adduced by the parties. The judgment must record the reasons as to why the first appellate court differs from the Judgment of the Trial Court. conscious Normally, appreciation of the evidence by the Trial Court is only interfered with by the Appellate Court if such appreciation of evidence appears to be absurd or there has been a serious challenge to such exercise. This proposition of taw has been so firmly settled that it does not require any reiteration by citing any authority. 17. Given the settled legal position outlined above, I now re-appreciate the evidence on record, taking into account the evidence adduced by both parties, to assess the correctness of the findings recorded by the Trial Court. 18. Before addressing the rival contentions raised, I will first outline the facts about the relationship as asserted in the plaint, which remain uncontested by the Defendants in their written statement: 19. Theppal Naidu and B. Srinivasula Naidu are the sons of Balia Ragama Naidu, while Akkamma, Lakshmamma, Rangamma, Sundaramma, and Krishnamma are his daughters. M. Narasimhulu Naidu, the nephew of Balia Ragama Naidu, married both Rangamma and Sundaramma. Rangamma bore only one daughter, Lakshmamma, while Sundaramma had no children. M. Narasimhulu Naidu passed away around 1940, leaving behind his only daughter, Lakshmamma. She was married to B.Srinivasula Naidu in or about 1942. B. Srinivasula Naidu died intestate in or around 1946, leaving behind his only son, B.S.Baia Krishnama Naidu (2"'^ Defendant) and his widow as his legal heirs. B.S. Bala Krishnama Naidu was only one 12 year old at the time. B.S.Bala Krishna Naidu married the 2^^ daughter of Jagadhamba (1®* Defendant). Defendant had three daughters. Theppal Naidu's sisters, Ankamma and Lakshmamma, were married to brothers Peddanna and K. Venkataswamy Naidu, respectively, who are the maternal uncles of Theppal Naidu. Ankamma and Peddanna had one daughter, Parvathamma, while Lakshmamma and Venkataswamy Naidu had Alimelu. Theppal Naidu married Parvathamma, the daughter of Peddanna. Theppal Naidu had a son, Balia Raghava Naidu, and a daughter, Jagadhamba (the 1®* Defendant), with his wife, Parvathamma. It is admitted that Balia Raghava Naidu passed away unmarried at CMC Hospital in Bhagyam, Nellore, on 30*^ January 2001. The Plaintiffs contend that Theppal Naidu married Alimelu, the only daughter of Lakshmamma, as his second wife, a claim that the Defendants strongly dispute. The Plaintiffs further assert that Theppal Naidu had a daughter named Murali with his second wife, Alimelu. The Plaintiffs also claim that the 1®* Plaintiff is the husband of Murali, and Plaintiffs 2 to 5 are their children. 20. The suit was filed on the basis that Sri B. Raghava Naidu died intestate regarding the ancestral properties outlined in the plaint schedule. The 1 Defendant, his sister, inherited half of the share, while the Plaintiffs, as the legal heirs of Raghava Naidu's deceased sister, Murali, inherited the other half. The Trial Court examined whether the Plaintiffs proved that Smt. B.Murali was the daughter of B. Theppal Naidu by his second wife, Alimelu. Although the Defendants have contested the Plaintiffs' assertion that Murali is the daughter of Theppal Naidu, they have neither taken an alternative plea nor provided any testimony regarding the identity of Murali's father. 21. St Before the initiation of the suit, there was an exchange of legal notices between the parties. Ex.A.5 is the office copy of the legal notice dated 22. 13 14.07.2001, which the Plaintiffs issued to Defendants 1 and 2. Ex.A.6 is the reply notice sent on behalf of the Defendants in response to the notice Ex.A.5. The stands outlined in both notices are mainly identical. To substantiate their case, the Plaintiffs examined the 1®‘ Plaintiff PW.1 and PWs.2 and 3. In defence, the 1®‘ Defendant was examined DW.1, and witnesses, DWs.2 to 6, were also examined by the Defendants. 23. as as The Plaintiffs submitted oral and documentary evidence to establish that Smt. Murali was the daughter of Theppal Naidu. However, the Trial Court ultimately disbelieved the evidence the Plaintiffs adduced, finding it unconvincing. 24. The Plaintiffs have relied on Ex.A.3, a study certificate dated 09.11.2001, issued by the Head Mistress of Sherman Memorial Girls School, Chittoor, in favour of Smt. B. Murali. Ex.A.3 confirms that Kum. B. Murali, daughter of B.Theppal Naidu, was a student at Sherman Memorial Girls High School, Chittoor, from July 1962 to January 1963 and attended Class VI. According to the school records, her date of birth is 01.07.1951, and her admission number is 2097/1962. The Trial Court observed that the certificate lacked the initial of Theppal Naidu, the father of Murali. However, the certificate does not include a designated column for the father's initials. Since the Headmaster/Principal issues the document, it is unreasonable to expect the father's initials where no such provision exists. Thus, the Trial Court's finding to disregard Ex.A.3 on this basis was unjustified. 25. The Trial Court observed that the Defendants challenged the authenticity of Ex.A.3; the burden shifted to the Plaintiffs to summon the school authorities and provide records proving that Smt. B. Murali was a student at the school in 1962 and 1963; merely submitting the certificate was insufficient; the Plaintiffs were required to adduce evidence by examining the person who issued the certificate or the person in charge of the institution. Since the person responsible for the school was not examined, Ex.A.3 cannot 26. 14 be considered positive proof of Smt. B. Murali's study certificate. Ex.A.3 is not accepted by the Trial Court by citing the above reasons. The learned counsel for the Appellants asserts that Ex.A.3 is a public document, and the information it contains is essentially an abstract derived from public records maintained by an educational institution. The Defendants, while disputing the accuracy of the contents of Ex.A.3, have failed to produce any rebuttal evidence to challenge the assertion that Murali is the daughter of Theppal Naidu, as stated in the document. In support of his contention, learned counsel for the Appellants placed reliance on the following citations. 27. In Vasam Hari Babu V. Vasam Veeraraghavamma^, the composite High Court of Andhra Pradesh held that; (11) EVEN otherwise, as can be seen from clause (g) of Section 65, if a document is prepared drawing information from various other documents, maybe the public documents, which cannot conveniently be produced before the court, the information contained in such documents is nothing but an abstract of information gathered from various public documents to be maintained by the Educational Institutions. In such circumstances, although the information in the public document is gathered, they cannot be considered copies of public documents but an abstract of the and is, therefore, admissible under clause (g) of Section 65 28. same In Minor Thirukkumaran & Others V. Varadarajan & Others'^, the High Court of Madras held that: 29. 12 The learned counsel appearing for the appellant relying on the decision reported in C.V. Vijayarangam vs The State Bank of India, represented by the Chief General Manager, 1st Line Beach, Madras -1 and another(99 L.W.738) and contended that under Section 35 of the Evidence Act, the entries made in a public record or of official register about the age cannot be taken as conclusive proof It has been observed in the above said dictum that under Section 35 of Evidence Act, an entry in a public record of official register or record, though a relevant fact is not conclusive proof of what is entered there. It has been further decided that if there is a dispute arises over such entry, it has to be resolved in an ordinary civil Court, and no one can insist that the entry must be acted ^ 2001 2 ALD 481 2006 0 Supreme(Mad) 2649 15 upon as conclusive proof. However, in this case, the Plaintiff has filed an Ex A1 school transfer certificate to show his date of birth. Ex A1 issued by the Headmaster of the school in which the Plaintiff has studied X standard. The Plaintiff is the custodian of Ex A1. Now, the burden shifts on the Defendants to show that Ex A1 is not genuine but forged. To show that Ex A1 is a forged and concocted document created for the purpose of this case, the Defendants have not let in any evidence, except Ex B9, which does not contain the name of the Plaintiff. The burden is on the Defendants to show that Ex B9 relates to the Plaintiff, but there is no evidence on record to show that Ex B9 relates to the Plaintiff, xxxxxxx i/vas Learned counsel for the Respondents relied on the decision in C.Doddanarayana Reddy (dead) by Drs. and others V. C. Jayarama Reddy (dead) by Drs. and others^, wherein the Hon’ble Supreme Court held that: 30. 19. In a judgment reported as Ram Suresh Singh vs Prabhat Singh & Ann, (2009) 6 SCO 681, it has been held that entry in the School Register may not be a public document and, thus, must be proved in accordance with the law. The court held as under: "12. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in a school admission register is to be considered for the purpose of determining the relevance thereof But in this case, the said condition must be held to have been satisfied. An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in Birad Mai Singhvi but in this case the said entry has been proved." Learned counsel for the Respondents relied on the decision in Birad Mai Singhvi V. Anand Purohif, wherein the Hon’ble Supreme Court held that: 31. if an entry regarding date of birth in the scholars registers is made on the information given by parents or someone having special knowledge of the. fact, the same would have probative value. The testimony of Anantram Sharma and Kaiiash Chandra Taparia merely proved the documents, but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the 14 ^ 2020 2 Supreme 716 ® MANU/SC/0052/1988 16 date of birth is examined. The entry contained in the admission form or in the school register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but If it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such value an entry will have no evidentiary The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents, could be proved by admissible evidence, i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi. In the circumstances, the dates of birth mentioned in the aforesaid documents have no probative value, and the dates of birth mentioned therein could not be accepted. 15 To render a document admissible under Section 35, three conditions must be satisfied, firstly, an entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly. It must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age vi/as recorded. The Courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined, see Jagdamba Prasad v. Sri Jagannath Prasad and Ors. 42 ELR 465, K. Paramalali v. LM. Alangam and Anr. 31 ELR 401 and Krishna Rao Maharu Patil v. Onkar Narayan Wagh 14 ELR 386. This court is of the opinion that while Ex.A.3 is a relevant document, it cannot be regarded as conclusive proof of the facts it references. It is not the testimony of PW.1 that he has personal knowledge of the contents of the document. At the time of Murali's admission to the school, he was not acquainted with her. Furthermore, it is not his assertion that he had personal familiarity with the facts mentioned in Ex.A.3. The entries in Ex.A.3 32. any 17 would typically be expected to have been provided by the parents or by someone possessing special knowledge of the facts in question. The Plaintiffs were required to examine the school authorities who issued the Ex.A.3 certificate to establish the basis upon which the information contained in Ex.A.3 was prepared. As such, the Trial Court is justified in not considering the Ex.A.3 document. The Plaintiffs relied on Exs.A.8 to A.10, inland letters, to establish the relationship between B. Theppal Naidu, Alimelu, and Murali. Ex.A.8, dated 26.06.1968, is an inland letter from Theppal Naidu to Narayanaswamy Naidu (1®* Plaintiff), in which he refers to himself as "Mamagaru," inquires about Murali's health, and mentions plans to bring her to their place. He also stated that someone would visit Murali within four days and requested to provide an update on her condition. 33. The Trial Court declined to place reliance on the document Ex.A.8, reasoning that in the letter, B. Theppal Naidu referred to himself as "Maamagaru" without explicitly stating that Smt. B. Murali was his daughter. The absence of the term "daughter" in the letter, purportedly written by B. Theppal Naidu to his son-in-law, led the Trial Court to conclude that the Plaintiffs could not establish that B.Theppal Naidu was the father-in-law of the 1®‘ Plaintiff. Additionally, the Trial Court noted the absence of the initial "R" before the name "Narayanaswamy Naidu" in the sender's address, further casting doubt on the relationship between B. Theppal Naidu and Narayanaswamy Naidu. It further observed that based on the information provided in the letter, it was impossible to definitively assert whether the relationship was one of father-in-law and son-in-law. The Trial Court also observed that Smt. B. Murali had been the daughter of B. Theppal Naidu, and he would likely have mentioned the health of her daughter in the letter. The Trial Court further observed that the contents of Ex.A.8 failed to establish, beyond doubt, the relationship between B. Theppal Naidu and Smt. B. Murali. Furthermore, B. Theppal Naidu's address of Narayanaswamy Naidu as "son- 34. 18 in-law" was insufficient to establish a natural father-in-law and son-in-law relationship, as it is not uncommon for distant relatives to address one another by courtesy titles. It may be hard to believe to address a letter to someone using the term "MAMA GARU." Such an address is typically used when referring to a son-in-law or daughter-in-law. The Trial Court failed to consider the contents of the letter properly. B. Theppal Naidu signed the letter using his full name, and his address was clearly stated as B. Theppal Naidu in the sender's details. The letter also contained inquiries about Murali's health, which the Trial Court overlooked when it claimed no such inquiries made. The Trial Court further disbelieved the letter due to the absence of the initial "R" before Narayanaswamy’s name. As the said letter was sent to Narayana Swamy and he placed the letter, it is unclear why the Trial Court found fault with the omission of the initial "R," primarily when his full name was referred to in the letter, and it was reached to him. were Based on the above observations, this court believes that the Trial Court should not have assumed that a father-in-law must refer to his daughter solely as "his daughter" and cannot mention her by name when writing a letter to his son-in-law. The Trial Court should not have expected a letter to convey the parties' relationship explicitly. The failure of the father to refer to Murali as his daughter does not undermine the authenticity of the letter. A father may refer to his daughter in various ways, depending on personal or customary expressions. It is not for the Trial Court to impose its expectations on how the letter should have been written. The letter was addressed to the Plaintiff, with the address specified as Sri Narayanaswami Naidu, Tharvai Village, Ambur P.0, North Arcot District, and the sender’s address as B. Theppal Naidu, Mutharapalli, Patnam P.O., Chittoor District (A.P). The Defendants have not contested the accuracy of these addresses. It is also not the case of the Defendants that the "Murali" mentioned in the letter refers to else. If that were the case, there would be no reason for Theppal Naidu to inquire about her health. Furthermore, the Defendants have not clarified the 35. someone 19 nature of the relationship between Theppal Naidu and Murali, regarding whom he made inquiries in the letter. The Plaintiffs assert that Murali is the mother of the 1"‘ Plaintiffs four children. However, the Defendants have not disclosed the name of the 1 Plaintiffs wife or the mother of the other Plaintiffs. It seems that the Defendants have outright denied the relationship between the Plaintiffs and Murali. They have not suggested that Murali, as referenced in the study certificate or the inland letter, is a non-existent individual. 36. St The Trial Court considered Ex.A.9, an inland letter written in English, which was written by B. Theppal Naidu on 15.10.1970. In this letter, he addresses Narayanaswamy Naidu/1®‘ Plaintiff as his son-in-law. However, there is no mention of Smt. B. Murali in the said letter. The letter reflects the same address as seen in Ex.A-8. Ex.A.9 establishes the relationship between B. Theppal Naidu and the 1®‘ Plaintiff, where the latter is referred to as his son-in-law. The content of the letter primarily discusses village politics. The Trial Court disregarded this letter due to the absence of any mention of Murali. If these letters were fabricated only for the suit, the Plaintiffs would have likely crafted its contents in a way that would support and strengthen their case. The contents of the letters reflect the actual events and circumstances, indicating that it was not fabricated for this litigation. Had the letter been fabricated, it would have likely been written to align with the expectations of the Trial Court. 37. The Trial Court should not have imposed expectations regarding the content of the letters. It is not for the Trial Court to dictate or assume what should have been included in the letters. The addresses in the inland letters indicate that B. Theppal Naidu is writing to his son-in-law, and the inclusion of postal seals confirms the letter's posting and dispatch. Therefore, the Trial Court should not have rejected the letters solely because the content did not meet its expectations. Moreover, the Defendants have failed to provide any 38. 20 St evidence clarifying the relationship between B. Theppal Naidu and the 1 Plaintiff, which would explain why such letters were addressed in this manner. The Trial Court referred to Ex.A-10, a letter addressed by one Sundaramma to R. Narayanaswamy Naidu / Plaintiff, where she referred to herself as "<S94"- The Trial Court commented that the relationship between Sundaramma and Narayanaswamy Naidu was not explained, and there was no mention of Smt. B. Murali in the letter. The Trial Court rejected Ex.A-10, citing its reasons for doing so. A primary reason for rejecting the letter was the assumption that the recipient may not have known Telugu or English. During that period, communicationvia letters often assumed that the recipient would have someone read the letter on their behalf, and thus, letters were sometimes written in a language familiar to the sender. Given this context, the Trial Court should not have rejected Ex.A.8 to Ex.A. 10 documents, as these letters appeared to fulfill all the necessary criteria for valid correspondence, with postal seals supporting their authenticity. The Trial Court's doubts regarding the content and language of the letters do not appear well-founded, as the documents themselves seem legitimate and properly executed. 39. The Plaintiffs have relied on Ex.A.20, a document in which Kesavula Naidu, the husband of the 1®‘ Defendant, refers to Murali as his wife's sister and settled certain properties in her favour. As seen from the record, B.S. Bala Krishna Naidu, the son of Srinivasulu Naidu, is shown as the 2"^^ Defendant and was examined as DW.1. During his examination-in-chief, he reaffirmed all the pleas made in the written statement. However, in cross-examinati on, he denied the suggestion that Venkataswamy Naidu, by a Will dated 07.03.1968, bequeathed all his properties to Theppal Naidu, as his daughter was given marriage to him. He also refuted the suggestion that his father-in-law had gifted property in Uttarapalli village to Murali under a registered settlement deed dated 23.05.1979, attested by his co-brother, Yethirajula Naidu. However, the Trial Court disregarded this document as to why he had not settled the property with his wife. To substantiate this claim, the Plaintiffs examined PW.2. It is 40. 21 undisputed that PW.2, Yethirajula Naidu, is the son-in-law of the 1®* Defendant, having married her daughter in 1970, and the 2""^ Defendant is his co-brother. PW.2 supported the Plaintiffs version by testifying that after the marriage of the Plaintiff to Murali, he was married to the eldest daughter of the Defendant and, according to PW.2, his father-in-law, Kesavula Naidu, gifted a house site in Uttarapalli to his sister-in-law, Murali, through a registered gift deed dated 23.05.1979. PW.2 further testified that he was present at the time of the registratioh of the deed and attested to the document. On the same day, he also purchased property from Theppal Naidu. Additionally, PW.2 stated that the 1®‘ Plaintiff and Murali frequently visited Uttarapalli, and he occasionally visited the Plaintiffs house. It is admitted that the 2"^ Defendant is the co-brother of PW.2, and there appears to be a strained relationship between PW.2 and DW.1. Notably, PW.2 filed a suit, O.S.No.55 of 2002, before the Principal Senior Civil Judge, Chittoor, and the office copy of the plaint was marked as Ex.B.2. The suit was decreed, and the copy of the judgment in O.S.No.55 of 2002 is marked as Ex.A.18. Subsequently, PW.2 filed Execution Petition No. 168 of 2006. 41. Ex.A.20 document was executed 25 years before the institution of the suit, and it was Kesavula Naidu, the 1®* Defendant's husband, who executed it. The document was executed out of love and affection towards Smt. B. Murali. It is for the 1®^ Defendant and her son to explain why Kesavula Naidu chose to execute such a document. Upon careful review of the judgment, it becomes evident that the Trial Court has approached the evidence with undue suspicion, without justifiable reasoning. While the documents presented by the Plaintiffs clearly establish the relationship as claimed, the Trial Court failed to consider these documents in detail or provide reasons for its disregard of them. It is not the Defendants' case that they were unaware of the execution of Ex.A.20, the gift deed. Moreover, after becoming aware of its existence, they did not take any appropriate steps to challenge the gift transaction. 42. 22 Upon reviewing the cross-examination of PW.2, it is evident that there is no significant dispute regarding the execution of the gift deed by his father-in- law, Kesavula Naidu, in favour of Smt. Murali. As a co-brother of DW.1, PW.2 has no apparent reason to provide false testimony about the relationship. On the other hand, he has no apparent reason to depose against the interest of his wife and mother-in-law. Additionally, as the son-in-law of the 2"'' Defendant, PW.2 is expected to be familiar with the relationship between Theppal Naidu and Murali. Notably, during the cross-examination, it was not suggested to PW.2 that Smt. B. Murali was not the daughter of Theppal Naidu, and Kesavula Naidu had not executed any document in favour of Murali. 43. Furthermore, Kesavula Naidu had no apparent reason to describe Murali as the wife of Narayanaswami Naidu. In document Ex.A.20, Kesavula Naidu clearly states that Murali is his wife's sister. This document, proven by PW.2, was executed in 1977, at a time when there were no disputes between the parties. The absence of any dispute regarding the execution of Ex.A.20 cross-examination further supports its authenticity. The Defendants have provided no explanation as to why Kesavula Naidu would have referred to Murali as the sister of his wife, lending additional weight to the Plaintiffs' case regarding the relationship between Murali and Theppal Naidu. 44. in The Defendants have not claimed that the property covered under Ex.A.20 did not belong to their family, nor have they stated that the 1®* Defendant's husband did not settle it in favour of Murali. No such assertions were made, nor were any such suggestions put forth to PWs.1 and 2 during cross-examination. Kesavula Naidu had no apparent reason to include false statements in the document. It appears that, in an attempt to deprive Murali of her rights, the Defendants have gone so far as to dispute both the relationship between Murali and Theppal Naidu and between Murali and the Plaintiffs. 45. 23 To establish the relationship between Murali and Theppal Naidu, the Plaintiffs examined PW.3, Venkatapathi Naidu, son of late Chengaiah Naidu. PW.3 testified that he was married to the niece (the sister’s daughter) of B.Theppal Naidu, affirming his close familial ties with Theppal Naidu. PW.3 further elaborated that Theppal Naidu had a son, Raghava Naidu, and two daughters, K. Jagadhamba and Murali. According to PW.3, the 1®' Plaintiff is married to Murali, and he attended their wedding. He also confirmed that Murali had four children. During cross-examination, the defence primarily focused on matters concerning the partition of properties between the 2 Defendant, Balakrishna Naidu, and Theppal Naidu. However, despite this line of questioning, no substantial effort was made to undermine or discredit PW.3’s testimony regarding the relationship between Theppal Naidu and Murali, nor did the Defendants attempt to question the veracity of his statement about the Plaintiffs’ family ties. The absence of a focused challenge in cross-examination suggests that the Defendants did not seriously dispute his version of events. 46. nd Given the lack of any effective rebuttal or challenge to his testimony, I see no compelling reason to question the credibility of PW.3’s evidence. His deposition is detailed, and his statements align with the facts presented by the Plaintiffs. Notably, the Trial Court did not address or consider PW.3's testimony in its judgment and failed to provide any reasoning for disregarding his evidence. 47. PW.3, at the time of giving his testimony, was approximately 86 years old. His advanced age and long-standing relationship with Theppal Naidu lend considerable weight to his account. His familial connection to Theppal Naidu is undisputed, and his position as a close relative provides further credibility to his statement. Moreover, as someone who attended the marriage of Murali to the Plaintiff, his first-hand knowledge of the family affairs should have been given due regard. Given these circumstances, there is no apparent reason to 48. 24 doubt the truthfulness of his testimony or to question his assertion that Murali is the daughter of Theppal Naidu and Murali’s relationship with the Plaintiffs. To establish the relationship between Venkataswamy Naidu and B.Theppal Naidu, the Plaintiffs referred to Ex.A.16, a certified copy of the will dated 17.09.1968. The will contains a clear recital stating that Alimelu is the testator's daughter and that B. Theppal Naidu married her. The will further indicates that the testator bequeathed properties to him due to the absence of male heirs. As already noted, Venkataswamy Naidu married Lakshmamma, the sister of Theppal Naidu, and they were blessed with a daughter, Alimelu. However, the Trial Court did not take the contents of Ex.A.16 into account, citing Section 68 of the Evidence Act, which stipulates that the contents of a Will must be proven by examining at least one attestor, and in the event of non-availability of the attestor, someone familiar with the signatures of those persons should be examined; the Plaintiffs failed to substantiate the will's contents. The Trial Court concluded that Ex.A.16 was not sufficiently proven by giving the aforementioned reasons. 49. The Trial Court further questioned why, upon Theppal Naidu's marriage to Alimelu, the testator did not bequeath the property to her granddaughter, Smt. B. Murali. However, it is not within the purview of the Trial Court to determine to whom the properties of Venkataswamy Naidu should be bequeathed. More particularly, when granddaughter has not disputed it and her husband and children are relying on it to establish the relationship. The Will provides the rationale for the bequest, which is clearly outlined in its contents. It is not disputed by the Defendants that Theppal Naidu enjoyed the properties that were bequeathed to him. 50. The learned counsel for the Respondents supported the said findings of the Trial Court and relied on the following decisions to support their contentions. 51. 25 In Ramesh Verma (D) tr. LRs. V. Lajesh Saxena (D) by LRs. and OrsJ, the Hon’ble Supreme Court held that: 52. 13. A Will, like any other document, Is to be proved In terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act The propounder of the will Is called upon to show by satisfactory evidence that the testator signed the will, that the testator at the relevant time lA/as in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will. The document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act, and the position remains the same even in a case where the opposite party does not explicitly deny the execution of the document in the written statement. In Malliga V. P, Kumaran^, the High Court of Madras held that: 53. 25. The latest judgement on this issue from this court was decided in [P.Radha Vs. Irudayadoss and others] reported in 2022 SCO online Mad 886 and it has been held as follows:- 24. The Defendants have not examined any attestor of Exhibit A.4-Will In order to comply with the provisions of Section 68 of the Evidence Act. The Defendants have contended that when the Plaintiff himself has admitted the execution of the will, the question of invoking Section 68 of the Evidence Act with regard to formal proof of the document is not necessary. However, I am not in agreement with the said contention in view of the Judgments of the Hon'ble Supreme Court and our High Court. 25. The Hon'ble Supreme Court, in a judgment reported in (2017) 1 SCC 257 in para 13,ld as follows: “13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will Is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the " MANU/SC/1549/2016 2022 OSupreme(Macl) 1388 26 Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. ” 26. It is clear from the above judgement that the view expressed by the Hon'ble Supreme Court to the extent that Section 68 of the Evidence Act is Mandatory for proof of Will, has been reiterated and the same view has to be once again reiterated in this case also. The Appellants contend that the Trial Court erred in failing to consider the relevant recital in the will, which pertains to the relationship between the parties and is admissible under Section 32(5) of the Evidence Act. The Appellants' counsel relied on the following citations to support his contentions. 54. In Ram Naresh Singh V. Dy. Director Of Consolidation Varanasi and 8 Others^, the High Court of Allahabad held that: 10. The next point raised by the counsel for the petitioner is that the proof of the execution of a document cannot be taken as proof of the contents of a document and consolidation authorities have committed illegality in holding that Smt. Basanti was the daughter of Smt. Gujrati and Vijay Bahadur was her daughter's son, based on the will dated 10.09.1943. Section 61 of the Evidence Act of 1872 provides that the contents of documents may be proved either by primary or secondary evidence. In this case, the original will was filed, and as such, primary evidence was filed. Section 50 of the Evidence Act 1872 provides that when the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who as a member of family otherwise, has special means of knowledge on the subject is relevant. Statement made In the will that Smt. Basanti was a daughter of Smt. Gujrati and Vijay Bahadur her daughter's son are also admissible in evidence under Section 32 (5) of the Evidence Act, 1872. This court, in Hameed v. Kanhaiya, AIR 2004 All 405, held that a certified copy of the will is admissible in evidence and can be considered to prove the contents of the documents. The appellate court was justified in accepting the certified copy of the will and rightly considered the contents of the will to arrive at a finding that the Plaintiff was the son of Sita Ram. 55. or 2013 OSupreme(AII) 3010 27 In Bhrigurasan And Ors. V. D.D.C. And Ors^°, the High Court of Allahabad held that; 56. 26. Thus, even if the will dated 29.3.1946 is not enforceable for being void or may not be relevant under Section 32(6) of the Act, 1872 as a Wiil, it would still be admissible and relevant under Section 32(5) of the Act, 1872 because the relevant recital in the will is a statement in writing of the deceased and relates to the existence of a relationship by blood about which the testator had special means of knowledge as the husband of Shivraji. The statement is obviously ante litem mptam, i.e., made before any dispute regarding the succession to the estate of the testator started between the parties. Thus, the will dated 29.3.1946 was admissible in evidence and was relevant under Section 32(5) of the Act, 1872 to decide the pedigree of respondent No. 3 and had to be considered by the S.O.C. and the D.D.C. while assessing the different evidence filed by the parties to prove or disprove the pedigrees as pleaded by them. 27. A reading of the impugned orders passed by the appellate and the revislonal courts shows that the recital in the will has not been considered by the said courts. The recital was material evidence, the non-consideration of which vitiates the judgments of the appellate and the revisional courts. In Paramu Radhakrishnan V. Bharathan^\ the High Court of Kerala 57. held that: 10. As Ext. B1 will has been produced before the court by the Defendant to substantiate his contention that 3 cents of the property was bequeathed to him by his father Paramu and as it is for the specific purpose of establishing his right in the property that the will was produced before the court, it cannot be said that the mandate of Section 68 of the Evidence Act can be got over by maintaining that it can be used for the purpose of showing the filial relationship between Paramu and the Defendant. The production of the document (Ext.BI will) was for the purpose of establishing rights in the property and not a relationship between the Defendant and the testator. As the prime purpose in producing Ext. B1 will is to establish right in the property, strict compliance of Section 68 is mandatory and without adhering to the provision it cannot be used for any collateral purpose. In Kalidindi Venkata Subbaraju and Ors. V. Chintalapati Subbaraju and Ors.^^, the Hon’ble Supreme Court held that: 58. 10 2020 0 Supreme(AII) 638 MANU/KE/0030/1990 MANU/SC/0203/1967 12 28 11. The question canvassed both before the High Court and us w/as whether the statements made by Somaraju and Surayamma in the said will and in the said written statement, respectively, were admissible and could be used to establish that Somaraju was 19 years of age at the time when he executed the said will. Section 32(5) of the Evidence Act provides that- "When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge". 15. As regards the written statement of Surayamma the position of her declaration therein is somewhat different. Both sub-ss. 5 and 6 of s. 32, as aforesaid, declare that in order to be admissible the statement relied on must be made ante litem motam by persons who are dead, i.e. before the commencement of any controversy actual or legal upon the same point. The words "before the question in issue n/as raised" do not necessarily mean before It was raised in the particular litigation in which such a statement is sought to be adduced in evidence. The principle on which this restriction is based is succinctly stated in Halsbury's Laws of England, 3rd Ed. Vol. 15, p. 308, in these words : "To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations". In light of the observations made in the decision cited supra, this Court views that Ex.A.16 Will was produced solely for the purpose of establishing the relationship between Theppal Naidu and Alimelu, and not for the purpose of determining any rights in the property. The Trial Court should have considered Ex.A.16 document. The Plaintiffs have primarily relied Ex.A.16, the Will, to establish that Theppal Naidu was married to Alimelu, the daughter of Venkataswamy Naidu. Furthermore, the Plaintiffs contend that Venkataswamy Naidu bequeathed his properties to Theppal Naidu in recognition of this familial relationship. The content will effectively counter the Defendants' claim that Theppal Naidu did not marry Alimelu. Although the original will was not produced before the court, the Plaintiffs have submitted a certified copy of the document. The contents of this certified copy are deemed admissible and relevant under Section 32(5) of the Evidence Act of 1872. This 59. on 29 provision permits the inclusion of statements made by the deceased, particularly those concerning the existence of a relationship known personally to the testator. In this case, Venkataswamy Naidu, as the father of Alimelu, possessed special knowledge regarding the relationship. Had such a relationship not existed, there would have been no rational basis for the testator to bequeath his properties to Theppal Naidu. Furthermore, it is important to note that the Defendants have not disputed that the property in question was bequeathed to and enjoyed by Theppal Naidu during his lifetime. Given that the Defendants have now received the property from Theppal Naidu, it is unlikely that they can now challenge the legitimacy of their title or dispute the origin of the property. Thus, in light of the evidence and legal provisions, the Plaintiffs have successfully demonstrated the relationship between the parties as contended, though it was not for the purpose of establishing the rights in the properties, it establishes the Plaintiffs case that Theppal Naidu married Alimelu. 60. The submission made by the learned counsel for the Appellants, asserting that an adverse inference and presumption should be drawn against the Defendants due to the non-examination of the 1®* Defendant, carries significant weight. 61. 62. Furthermore, the 1®* Defendant, Theppal Naidu's daughter, failed to testify in support of the Defendants' stand. As the most credible witness to clarify the relationship between Theppal Naidu and Murali, her absence from the witness stand is particularly noteworthy. This omission remains unexplained, especially considering the execution of a settlement deed by her husband in favour of Murali, in which he refers to her as the Defendant's sister. The 1®* Defendant should have been in a position to explain the execution of this document, which involved the settlement of certain properties in favour of Murali. It is also not their stand that the properties covered under 30 St Defendant's husband and were not Ex.A.20 were not belonged to the 1 settled in favour of Murali. Section 114 of the Indian Evidence Act empowers the court to draw 63. certain kinds of presumptions based on certain facts. Section 114(g) says the that the evidence which could be and is not produced court may presume would if produced, be unfavourable to the person who withholds it. Under this adverse inference could be drawn against the Defendants for their part, to call the material witness, viz., the 1®‘ Defendant. provision, an failing, on Further, when a party fails to call as his witness, the principal person involved in the transaction, who is competent to give a firsthand account of the matters of controversy and throw light on them and who could rebut the allegations of the other side, it is legitimate on the part of the court to draw an adverse inference against the party, who failed to produce such principal witness or who failed himself/herself to be examined as a witness, when he is a party, as ruled by the Apex Court in V.K.Saklecha V. Jagjiwan. Lakshmamma V. Vennapuse Chinaa Malla Reddy^^ and in Vidhyadar V. Mankikrao^^. In the above third cited decision, their Lordships of the Supreme , Engu Court has held as follows: "Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between Defendant No. 2 and the Plaintiff was a bogus transaction". Defendant was unable or unwilling to explain the document and possibly did not want to deny the relationship between Murali and 64. Given that the 1 13 MANU/SC/0370/1972 MANU/SC/0271/1985 MANU/SC/0172/1999 31 her father, she has refrained from coming forward to testify. Her failure to provide evidence further strengthens the Plaintiffs' case. It should give rise to an adverse inference against her to contend against the recitals in Ex.A20. The documents relied on by the Plaintiffs were executed over twenty- five years before initiating this litigation. It is not the Plaintiffs' contention that these documents were created in anticipation of the present legal dispute. Nor do the Defendants claim that the properties were not transferred by virtue of these documents, nor have they taken any steps to challenge the authenticity of the transactions. The Trial Court, in its judgment, has made observations about how letters should be written, how properties should be bequeathed, and how settlement of properties should be held. However, it is not the role of the Trial Court to dictate how letters or documents are to be executed. Given that the Defendants have not contested the bequest outlined in Ex.A.16 or the property settlement executed under Ex.A.20 by the Defendant's husband, the Trial Court erred by disregarding the recitals in these documents. The court should have given due consideration to the content of these documents, as the Defendants did not challenge them at the appropriate time. 65. The Trial Court, in its judgment, failed to appreciate the evidence on record properly and concluded that Exs.A.3, A.8 to A.10, A.16, and A.20 did not conclusively establish the relationship between Theppal Naidu and Smt. B.Murali. Furthermore, without due consideration of the documents submitted, the Trial Court remarked that the Plaintiffs should have produced additional documents such as the ration card, voter lists, and pattadar passbook. A review of the judgment reveals that the Trial Court based its findings on suspicion, disregarding the explicit recitals contained in the registered documents. 66. In light of the foregoing discussion, this court is unequivocal of tbe opinion that the Plaintiffs/Appellants have satisfactorily established that Murali is the daughter of Theppal Naidu, the 1®* Plaintiff is Murali's husband. Plaintiffs 67. 32 2 to 5 are their children. In its judgment, the Trial Court failed to properly assess the evidence presented, leading to an erroneous decision on the matter. As such, this point is hereby answered. POINT N0.2: The Plaintiffs contend that, at the time of B. Srinivasulu Naidu's marriage, a family arrangement was made among the brothers whereby it was agreed that Theppal Naidu would own and enjoy all the family properties situated in Patnam village. In contrast, B. Srinivasulu Naidu would relocate to Setter!, where he would settle and enjoy the properties belonging to his in laws. This family arrangement was duly implemented and acted upon. 68. Another assertion made by the Plaintiffs is that, during the lifetime of Theppal Naidu, both he and his son, B. Raghava Naidu, submitted declarations before the Land Reforms Tribunal, Chittoor, concerning their respective land holdings in Mutharapalli village, which is under the jurisdiction of Patnam village. In the proceedings of the Land Reforms Tribunal, Chittoor, in C.C.NO.307/CTR/75, dated 24*^ April 1976, it was officially declared that B.Raghava Naidu held 0.4474 standard holdings of ancestral lands and 0.4195 standard holdings of self-acquired lands. 69. 70. In support of their case. Plaintiffs relied upon Ex.A.1, the proceedings of the Land Reforms Tribunal, Chittoor, dated 24*^ April 1976 in C.C.NO.306/BPM/75, and Ex.A.2, the proceedings of the Land Reforms Tribunal, Chittoor, in C.C.No.307/CTR/75. During cross-examinati on, it was suggested to PW.1 that Theppal Naidu and Srinivasulu Naidu each held a half share in the property shown in the plaint schedule. DW.1 also admitted that PW.2 filed a suit in O.S.No.55 of 2002 against him, which was decreed. Furthermore, he admitted that after his father's death, his senior paternal uncle, Theppal Naidu, looked after their family affairs. In the cross-examination, he testified that Raghava Naidu had not 71. 33 executed any documents in favour of any individual, asserting that the family possessed only ancestral properties. Based on DW.I's testimony, it is evident that the Plaintiffs case that the schedule properties are ancestral, has not been disputed. The Plaintiffs relied on Exs.A.1 and A.2 declarations to assert that Defendants 1 and 2 are entitled to a half share of the suit properties. However, the Defendants did not provide landholding declarations from the 2 Defendant or his father, Srinivasulu Naidu. The Plaintiffs argue that the properties owned by Theppala Naidu and Raghava Naidu are their exclusive assets. Evidence reveals that both individuals held transactions, alienating properties to third parties. For instance, Theppala Naidu executed Ex.A.11 (a sale deed to Smt. Sakunthalamma on 25.06.1968) concerning Patnam Revenue village properties, without any involvement from Defendants 1 or 2. Similarly, Ex.A.12 (a sale deed from Theppala Naidu to Kesavula Naidu on 14.08.1970) and Ex.A.13 (a sale deed from Theppala Naidu to PW.2 on 23.05.1977) further confirm that Defendants 1 and 2 were not involved in these transactions. The Defendants have not contested the transactions outlined in Exs.A.11 to A. 13 by filing any suits, nor have they provided any explanation regarding when Defendants 1 and 2 acquired rights over the property, despite the sale transactions conducted by Theppala Naidu. Ex.A.13, a transaction in favour of PW.2, the 2"^^ Defendant's co-brother and the 1®* Defendant's soh-in-iaw, would likely have been within the Defendants' knowledge. 72. nd The Plaintiffs have also highlighted transactions involving the Defendants' family members. They relied on Ex.A.15, dated 14.12.2000, executed by the 2"^^ Defendant and his sons in favour of Jeevarathnam Naidu of Setteri village. The property in Ex.A.15 is located in Setteri village, and the document confirms that the 2 73. nd Defendant and his sons are permanent residents there. Additionally, Ex.A.4, the 1986 voter list, also records them as 34 residents of Setter! village. Furthermore, Ex.A.19, the Khararunama, indicates that B. Srinivasulu Naidu was a resident of Setteri village. Through Ex.A.7, dated 23.07.2001, the 1®' Plaintiff requested the Sub- Registrar not to register any document pertaining to the suit schedule property. It is undisputed that Defendants 1 and 2 executed sale deeds, marked as Exs.B.3 to B.8, in favour of Defendants 3 to 9. However, the Plaintiffs contend that these sale deeds were executed to defeat their rights to the schedule properties. Additionally, the Plaintiffs assert that no valid consideration was exchanged in these transactions. The 4*^ Defendant, Prabhakar Reddy, was examined as DW.2. His testimony indicates that he and the 3^^^ Defendant purchased items 31 to 33 of the plaint schedule properties through the registered sale deed dated 09.04.2001, as per Ex.B.3. He further stated that they have been in possession of the properties since their purchase. In his cross-examination, he admitted that he did not know how many wives or children Theppal Naidu had. He also confirmed that he did not verify the documents submitted by the Plaintiffs in court, nor did he know the actual market value of the properties at the time of their purchase. 74. The Defendant, B. Krishna Reddy, was examined as DW.3. He testified that he purchased items No.35, 44, and 45 from their respective owners under the registered sale deed dated 23.07.2001, as evidenced by Ex.B.4. During cross-examination, he stated that he was unaware of whether Theppal Naidu was married to Murali or whether Murali was the daughter of Venkataswamy Naidu. Furthermore, he admitted that he did not know who had filed the suit or the specific relief sought in the suit. He also stated that he was unfamiliar with the contents of his written statement and did not know the attestors of the Ex.B.4 sale deed. Apart from Ex.B.4, he had no other document to substantiate his claim over the schedule properties concerning items No.35, 44, and 45. 75. 35 The 5‘^ Defendant, DW.4, testified that the 2""^ Defendant and his sons sold item No.36 of the plaint schedule property, comprising an extent of Ac.0.70 cents, under a registered sale deed dated 23.07.2001. Furthermore, they sold item No.34 of the plaint schedule property, covering an area of Ac.2.12 cents, to Defendants 6 and 7, with each receiving an extent of Ac. 1.06 cents, for valid consideration. To support his testimony, he referred to documents Exs.B.5 to B.7. He also stated that he is unaware of the existence of a sister named Murali of the 1®‘ Defendant and could not confirm whether the Plaintiffs are the legal heirs of Murali. 76. The Defendant, P. Nagaraja Reddy, was examined as DW.5. His testimony reveals that the 2'"" Defendant and his sons sold items No.37 to 42 of the plaint schedule properties for consideration, under Ex.B.8, registered sale deed dated 27.07.2001. During cross-examination, he admitted that, apart from Ex.B.8, he possesses no other documentation to demonstrate that he possesses and enjoys the properties. 77. In his testimony, DW.6, V. Subramanya Reddy, stated that Defendants 3 to 9 are bona fide purchasers of the schedule properties, having acquired them for valid consideration through various sale deeds. He further testified that he is not acquainted with the details of the brothers-in-law or sisters-in- law of Theppal Naidu. Additionally, he does not know whether Theppal Naidu was married to Alimelu and confirmed that he was unaware of the particulars concerning the family members of Theppal Naidu. 78. nd DWs 2 to 5 were examined to prove the sale transactions held by 2 Defendant and his sons in their favour concerning the properties outlined in the plaint schedule during the year 2001. Upon reviewing the evidence presented, it becomes evident that by the time these sale transactions took place, a significant dispute had already arisen between the Plaintiffs and Defendants 1 and 2 concerning the subject properties. The Plaintiffs had 79. 36 issued a legal notice to Defendants 1 and 2 on 14.07.2001, which undeniably signaled the onset of the dispute. Notably, most of the sale transactions occurred after the exchange of legal notices between the parties. Had Defendants 3 to 9 exercised due diligence and conducted a proper inquiry, they would have become aware of the ongoing disputes between the Plaintiffs and the Defendants regarding the suit schedule properties. The evidence suggests that despite being aware of the litigation, these Defendants proceeded with purchasing the properties, indicating that they knew of the pending legal disputes. Similarly, Defendant No.2 and his sons appear to have sold the properties with the anticipation of legal action being taken by the Plaintiffs concerning the suit schedule properties. 80. Given the circumstances and the material evidence adduced on behalf of the Defendants, it becomes difficult to accept that Defendants 3 to 9 can be regarded as bona fide purchasers of the plaint schedule properties. They purchased the properties fully aware of the ongoing dispute between the Plaintiffs and Defendants 1 and 2. Moreover, it is not the Defendants' contention that they were not informed by Defendants 1 and 2 about the exchange of notices or the disputes between the Plaintiffs and the latter. In light of this, it is reasonable to assume that Defendants 3 to 9 must have been 81. cognizant of the likelihood of a suit being filed concerning these properties, thereby undermining their claim to have acted in good faith. The 2 Defendant asserts that the 1®‘ Defendant sold a 5/12*^ share of the plaint nd schedule properties to the 2"^^ Defendant. Subsequently, certain portions of the schedule properties were sold to Defendants 5 to 9. Furthermore, the stand of the 3 rd Defendant, in conjunction with Ex.A.7, indicates that Defendants 1 and 2 transferred some of the plaint schedule properties to him. It is evident that Defendants 3 to 9 have purchased certain plaint schedule properties from the Defendants 1 and 2 and 2"^ Defendant’s sons as 37 St contended by them, and the 1 transactions. Defendant has not disputed these The Plaintiffs assert that, in the absence of any testamentary disposition by B. Raghava Naidu concerning his ancestral properties, as shown in the plaint schedule, both the Plaintiffs and Defendants are entitled to an equal share of these properties. The Plaintiffs assert that, during the lifetime of B.Raghava Naidu, he executed a Will in favour of Chengama Naidu concerning his self-acquired properties upon the demise of B. Raghava Naidu, the Defendant and the legal heirs of his other sister, Smt. B. Murali succeeded in the estate, excluding the self-acquired properties of the deceased. The Plaintiffs, as the legal heirs of the deceased sister of B. Raghava Naidu, succeeded to the remaining half share of the ancestral properties. As previously noted, the 2'^'^ Defendant maintains in paragraph 9 of the written statement that Raghava Naidu did not execute any documents in favour of any individual. Furthermore, the 2"^* Defendant asserts that Raghava Naidu did not acquire any land during his lifetime due to his ill health and that all properties listed in the plaint schedule and other properties are joint family assets. 82. As per Ex.A.18 - certified copy of judgment in O.S.No.55 of 2002 on the file of Principal Senior Civil Judge, Chittoor, it can be seen that Balakrishna Naidu (the 2^^^ Defendant herein) is shown as the 3^^ Defendant in O.S.No,55 of 2002, while the 1®* Defendant herein is shown as the 1®* Defendant in the said suit and the Plaintiff is shown as the 2"*^ Defendant in the said suit. 83. In the written statement filed by the 3'^'^ Defendant, which was adopted by the 1®* Defendant in O.S.No.55 of 2002 (as seen from Ex.A.18), it is stated that the 3'^ Defendant is the cousin brother of Raghava Naidu and holds a half share in the joint family properties as a co-parcener. As noted earlier. Defendants 1 and 2 in the present suit have also claimed that the properties 84. 38 ^ are joint family properties, while the 3^^ Defendant asserts his right as a co parcener. Upon reviewing the material placed on record, it is not seriously disputed that Raghava Naidu and his father gave declarations through Exs.A.1 and A.2 proceedings. Both parties state that the properties in Raghava Naidu's name are ancestral. Although Raghava Naidu declared that the properties belonged to him, the Defendants argue that he had no independent source of income. It is not specifically pleaded that the properties were partitioned between Theppal Naidu and his son. Separate declarations were made primarily to safeguard interests and ensure the properties remained within land ceiling limits. Since it is not disputed that the properties in Raghava Naidu's name are ancestral, it is not claimed that they were explicitly allotted to him in a partition. 85. In K. Bhaskara Rao V. K.V. Rama Rao^^, the composite High Court of Andhra Pradesh held that: 86. “It is well settled that when parties make statement for the purpose of escaping rigors of Ceiling laws or tax laws that by itself is not decisive and such statements cannot be equated to admissions so as to form basis of a status of a thing”. Upon careful consideration of the evidence on record, this court is of the opinion that the statements made by Theppal Naidu and his son before the Land Reform Authorities concerning the declarations made were intended to circumvent and evade the provisions of the Land Reform Act. The assertion that Raghava Naidu possessed self-acquired properties is demonstrably false, as evidenced by the facts outlined above. Furthermore, it is not the case of either party that a partition occurred between Theppal Naidu and his son. Rather, the properties have remained joint throughout, a fact that both parties have expressly admitted, as referenced above. 87. 2010(6) ALT 109 39 A three-judge bench of the Hon’ble Supreme Court doubted the correctness of the dictum as laid out in Prakash and Ors. V. Phulavati and Ors. 88. 17 There was an apparent conflict between the dictum as laid in Prakash’s case cited supra and Danamma alias Suman Surpur and Anr. V. Amar and Ors.^^, the question concerning the interpretation of Section 6 of the Act 1956 was referred to a larger Bench. The larger Bench settled the position of law in Vineeta Sharma V. Rakesh Sharma and Ors.^^, by answering the reference in paras 137.1 to 137.5 as under: 89. 137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of co-parcener on the daughter born before or after the amendment in the same manner as a son with the same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that the father co-parcener should be living as of 9-9-2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956, as originally enacted, did not bring about the actual partition or disruption of the coparcenary. The fiction was only for the purpose of ascertaining the share of the deceased co parcener when he was survived by a female heir of Class I as specified in the Schedule to the 1956 Act or a male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where a plea of oral 17 MANU/SC/1241/2015 MANU/SC/0064/2018 MANU/SC/0582/2020 18 19 40 4 partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. The evidence on record does not disclose a property partition between Theppal Naidu and Raghava Naidu. It is the Plaintiffs’ case that Raghava Naidu executed a will in respect of his self-acquired properties, whereas the Defendants stand that he has not acquired any properties because of disease and the schedule properties are ancestral properties. It is not the case of both parties that the schedule properties were partitioned after the death of Theppal Naidu and his son, Raghava Naidu. This court has no hesitation in concluding that the plaint schedule properties are the ancestral properties of Theppal Naidu, Raghava Naidu, 1"* Defendant and Murali. 90. In light of the foregoing discussion, the daughters of Theppal Naidu, namely Murali and the 1®' Defendant, are entitled to an equal share following the death of Raghava Naidu. Consequently, the Plaintiffs 1 to 5 are entitled to an equal share, on par with the 1"' Defendant. Therefore, the suit schedule properties have to be divided into two equal shares, with one share allotted to the Plaintiffs and the remaining share to the 1"* Defendant. Defendants 1 and 2, along with the 2"^^ Defendant’s sons, alienated certain items of the plaint schedule properties to Defendants 3 to 9, which the Defendant does not dispute. The Trial Court may consider the feasibility of allocating the Defendant’s share to them based on their purchases. Accordingly, the point is answered. 91. POINT N0.3: Given the preceding discussion, the findings and conclusions recorded by the Trial Court are based on something other than proper appreciation of the evidence on record. The Trial Court Judgment is erroneous, cannot be sustained, and is liable to be set aside, and the appeal deserves to be allowed without costs. Accordingly, the point is answered. 92. 41 In view of the findings in Points No.1 and 2, this appeal is allowed.The judgment and decree, dated 23.12.2013 in O.S.No.18 of 2002 on the file of Additional Senior Civil Judge Chittoor, is set aside. A preliminary decree is passed in favour of the Plaintiffs, directing the partition of plaint schedule properties into two equal shares and allotting one such divided share to them. While working out the equities, the Trial Court may consider the feasibility of allocating the 1®‘ Defendant’s share to Defendants 3 to 9 based on their sale transactions. Without the prayer in the plaint, the Plaintiffs are not entitled to past profits. However, they are entitled to future mesne profits. Both parties are directed to bear their own costs. 93. Miscellaneous applications pending, if any, shall stand closed. Sd/- S.V.S.R.MURTHY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER The Additional Civil Judge (Senior Division), Chittoor, Chittoor District, (with records) One CC to Sri D Vijaya Chandra Reddy, Advocate [OPUC] One CC to Sri P Jagadish Chandra Prasad, Advocate [OPUC] One CC to Sri Kanchumati Subba Rao, Advocate [OPUC] One CC to Sri V Disha Chowdary, Advocate [OPUC] One CC to Sri C Narendra Babu, Advocate [OPUC] The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. (to dispatch the trial court records) Three CD Copies To 1. 2. 3. 4. 5. 6. 7. 8. TK sree HIGH COURT DATED;28/02/2025 JUDGMENT + DECREE AS.No.169 of 2014 cP 17 MAR 2C25 Ctirrsrst Sectior , r- ALLOWING THE APPEAL SUIT IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO I.A.No.l of 2021 IN APPEAL SUIT No.169 of 2014 Between: 1. R. Narayanaswamy Naidu, S/o. C.R. Ramachandra Naidu Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 2. R. Chandrasekhar Naidu, S/o. R. Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 3. N. Kothandarama Naidu, S/o. R. Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 4. Smt. N. Rajalakshmi, W/o. Ravindran, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 5. Kum. N. Sujatha, D/o. R.Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. ...Petitioners/Appellants AND 1. Smt. K. Jagadamba, (Died as per LRs 10 to 12) 2* B.S. Balakrishnama Naidu, (Died as per LRs 13 to 15) • '1 I h. j %)han Reddy, S/o. Agaram Raghunadha Reddy, Hindu, Business, R/of., Agarampalli Village, Kanipalam Post, Irala Mandal, Chittoor idi^rict. .3" T- 4. M. Prabhakar Reddy, S/o. M. Balakrishna Reddy, Hindu, Business, R/o. D.No. 10-115, Gandhi Road, Chittoor Town and District. 5. G. Lokanadha Reddy, S/o. Muni Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 6. Janakirama Reddy, S/o. G. Lokanadha Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 7. G. Bhanuprasad Reddy, S/o. G. Lokanadha Reddy, Hindu, Cultivation R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 8. B. Krishna Reddy, S/o. Munaswamy Reddy, Hindu, Cultivation, R/o. Eguva Kaluva Village, H/o. Patnam, Thavanampalle Mandal, Chittoor District. 9. P. Nagaraja Reddy, S/o. Late P. Sidda Reddy, Hindu, Cultivation, Residing at Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 10.Smt. L. Anasuya, W/o. L. Ethirajulu Naidu, Mutharapalli Village Thavanampalli Mandalam, Chittoor District.(A.P). 11.Smt. B. Kasthuri, W/o. B. Balakrishnam Naidu, Setter! Village Bangarupalyam Mandal, Chittoor District (A.P). th 12.Smt. V. Nagabhushanam, W/o. V. Chandra Sekhara Naidu, No.9, 12 Main, Revenue Lay-out, Padmanabha Nagar, Bangalore, Karnataka, ...Respondents (Respondents 10 to 12 are the Legal Representatives of deceased 1 respondent) St 13.B Santhosh, S/o. Late B.S. Balakrishnama Naidu, Settrari Village, Thumbakuppan Post, Bangarupalem Mandal, Chittoor District. 14.B. Sandeep, S/o. Late B.S. Balakrishnama Naidu, Mutharapalli, Thavanampalli Mandal, Chittoor District. IS.Smt. B. Ramani, W/o. B.R.Mohan Kumar, 1754, Marvel Infinity, 33 Cross, 14^^ Main, Banasankari 2’^^ Stage, Bangalore-70. rd (Respondents 13 to 15 are the Legal Representatives of deceased 2'^'^ respondent) (Respondents 10 to 12 and 13 to 15 are brought on record as LR’s of deceased respondent Nos. 1 and 2 vide court order dated 07.10.2023 in I.A.Nos.3 of 2022 and 1 of 2023 in A.S.No. 169 of 2014) ...Respondents/ Respondents Petition under Order 41 Rule 27(aa) of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to allow the petitioner to file additional Evidence i.e. three (3) copies of wedding invitation cards printed in Telugu, English and Tamil languages be produced as additional evidence in the appeal A.S.No.169 of 2014 pending disposal of the AS. Counsel for the Appellants Counsel for Respondent Nos.3 to 9: Sri P. Rajsekhar, representing Sri P Jagadish Chandra Prasad : Sri D Vijaya Chandra Reddy Counsel for Respondent No.10 Counsel for Respondent Nos.11,12,14 & 15 : Sri V Disha Chowdary Counsel for Respondent No.13 : Sri Kanchumati Subba Rao : Sri C Narendra Babu The Court made the following: This Interlocutory Application, Under Order 41 Rule 27 (aa) of Civil Procedure Code, 1908 (for short, ‘C.P.C.,’), is filed by the Petitioners/Appellants seeking permission from this Court to submit three copies of wedding invitation cards printed in Telugu, English and Tamil languages as additional evidence in the Appeal in A.S.No.169 of 2014, in the interest of justice. The brief averments of the Petition enclosed to the 1®' Petitioner’s affidavit as follows; The Petitioners, the Appellants, filed O.S.No.18 of 2002 before the Additional Senior Civil Judge, Chittoor, seeking partition and separate possession of the suit properties. The Petitioners claim that these properties are ancestral joint family properties of B. Theppal Naidu, who had two wives: Parvathamma and Alimelu. The 1®‘ Defendant and her late brother, B. Raghava Naidu, were born to Parvathamma, while Smt. Muraii, born to Alimelu, passed away in 1990, leaving behind her husband and children (the Petitioners). The Petitioners assert that both they and the 1®* Defendant are entitled to equal shares of the properties. The 1®* Defendant denies the second marriage of B. Theppal Naidu to Alimelu and disputes that Smt. Muraii is his daughter. To substantiate their claim, the Petitioners submitted documentary evidence (Exs.A.1 to A.20), including Smt. Murali's study certificate, which the Trial Court rejected as unproven. Subsequently, upon further enquiry, some family friends and distant relatives gave wedding invitation cards printed on the occasion of marriage between Smt. Muraii and 1®* Appellant, dated 31- 08-1967, bearing the name of B. Theppala Naidu as the father of Smt. Muraii. These invitation cards, not previously available to the Petitioners, are critical to the case and were not produced at trial despite due diligence. Therefore, the Petitioners request that the petition be allowed, as the non-production of the documents was not deliberate but due to their unavailability at the time of the trial. 1. 2. The Respondent filed counter-affidavit on his behalf and also on behalf of Respondents 11, 12 and 15. He denied the petition averments and contended that after conclusion of the trial, the Trial Court concluded that they failed to establish the relationship between B. Theppal Naidu and Smt. Murali, and thus lacked standing to seek partition or challenge the alienations. Consequently, the suit was dismissed on 23.12.2023. Dissatisfied with the same, the Petitioners filed an appeal on 03.03.2014. However, after years, they filed the present application with baseless claims. This application fails to meet the requirements of Order 41 Rule 27(1 )(aa) of the C.P.C., and lacks justifiable reasons for producing additional evidence. During the trial and appeal, no efforts were made to present this evidence. Furthermore, the Petitioners never mentioned the alleged marriage of Smt. Murali and the 1®‘ petitioner in their pleadings. The 1®* Petitioner’s claim of receiving a wedding card from 1967, after 54 years, is highly implausible and lacks credible proof. The absence of any details about those who allegedly kept the card raises serious doubts. The application appears to be a deliberate attempt to fill gaps in their case and delay the proceedings. Allowing it would cause significant prejudice to the respondents. Therefore, the application should be dismissed outright. 3. seven Heard both sides. Perused the record. It is trite to observe that under Order 41, Rule 27 of C.P.C., additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced to fill in the lacunae or to patch up the weak points in the case. The Petitioners have submitted documents to be considered as additional evidence. However, this Court observes that these documents. 4. 5. 6. dated 1967, were not filed during the proceedings before the trial Court. The reasons for the Petitioners failure to file these documents at the appropriate stage are not found to be satisfactory or convincing. In light of this finding, allowing the introduction of the said evidence would serve no substantial purpose, and consequently, permitting the parties to present further evidence would be deemed unnecessary and the Petitioners have not provided any explanation for their failure to do so. In this context, the Court finds that it is unnecessary to admit these documents. As a result, the Interlocutory Application is dismissed without costs. Sd/- S.V.S.R.MURTHY JOINT REGISTRAR 7. 8. fr 9r ' SECTION OFFICER //TRUE COPY// To The Additional Civil Judge (Senior Division), Chittoor, Chittoor District. One CC to Sri D Vijaya Chandra Reddy, Advocate [OPUC] One CC to Sri P Jagadish Chandra Prasad, Advocate [OPUC] One CC to Sri Kanchumati Subba Rao, Advocate [OPUC] One CC to Sri V Disha Chowdary, Advocate [OPUC] One CC to Sri C Narendra Babu, Advocate [OPUC] Three CD Copies 1. 2. 3. 4. 5. 6. 7. TK sree HIGH COURT DATED:28/02/2025 ORDER I.A.No.1 of 2021 in AS.No.169 of 2014 ANDH^ = 17 MAR .2025 cn C9 . Current Section ^ DISMISSING THE APPLICATION WITHOUT COSTS IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATt FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT j HONOURABLE SRI JUSTICE T MALLIKARJUNA RAoV APPEAL SUIT No.169 of 2014 Between: 1. R. Narayanaswamy Naidu, S/o. C.R. Ramachandra Naidu Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 2. R. Chandrasekhar Naidu, S/o. R. Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 3. N. Kothandarama Naidu, S/o. R. Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. $ 4. Smt. N. Rajalakshmi, W/o. Ravindran, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. 5. Kum. N. Sujatha, D/o. R.Narayanaswamy Naidu, Hindu, Cultivation, R/o. No.8, Tharavalli, Gangapuram Post, Ambur Town, Vellore District, Tamilnadu State. ...Appeliants/Plaintiffs AND 1. Smt. K. Jagadamba, (Died as per LRs 10 to 12) 2. B.S. Balakrishnama Naidu, (Died as per LRs 13 to 15) 3. A. Mohan Reddy, S/o. Agaram Raghunadha Reddy, Hindu, Business, R/o. Agarampalli Village, Kanipalam Post, Irala Mandal, Chittoor District. ■-'a: * /■ 4. M. Prabhakar Reddy, S/o. M. Balakrishna Reddy, Hindu, Business, R/o. D.No. 10-115, Gandhi Road, Chittoor Town and District. 5. G. Lokanadha Reddy, S/o. Muni Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 6. Janakirama Reddy, S/o. G. Lokanadha Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 7. G. Bhanuprasad Reddy, S/o. G. Lokanadha Reddy, Hindu, Cultivation, R/o. Patnam Village and Post, Thavanampalle Mandal, Chittoor District. 8. B. Krishna Reddy, S/o. Munaswamy Reddy, Hindu, Cultivation, R/o. Eguva Kaluva Village, H/o. Patnam, Thavanampalle Mandal, Chittoor District. 9. P. Nagaraja Reddy, S/o. Late P. Sidda Reddy, Hindu, Cultivation, Residing at Patnam Village and Post, Thavanampalle Mandal, Chittoor District. lO.Smt. L. Anasuya, W/o. L. Ethirajulu Naidu, Mutharapalli Village Thavanampalli Mandalam, Chittoor District.(A.P). ll.Smt. B. Kasthuri, W/o. B. Balakrishnam Naidu, Bangarupalyam Mandal, Chittoor District (A.P). 12.Smt. V. Nagabhushanam, W/o. V. Chandra Sekhara Naidu, No.9, 12“" Main, Revenue Lay-out, Padmanabha Nagar, Bangalore, Karnataka, Setter! Village, ...Respondents (Respondents 10 to 12 are the Legal Representatives of deceased 1 respondent) St 13.B Santhosh, S/o. Late B.S. Balakrishnama Naidu, Settrai Viltage Thumbakuppam Post, Bangarupalem Mandal, Chittoor District. 14.B. Sandeep, S/o. Late B.S. Balakrishnama Naidu, Mutharapalli, Thavanampalli Mandal, Chittoor District. rd 15.Smt. B. Ramani, W/o. B.R.Mohan Kumar, 1754, Marvel Infinity, 33 Cross, 14*^ Main, Banasankari 2'^'^ Stage, Bangalore-70. nd (Respondents 13 to 15 are the Legal Representatives of deceased 2 respondent) (Respondents 10 to 12 and 13 to 15 are brought on record as LR’s of deceased respondent Nos. 1 and 2 vide court order dated 07.10.2023 in t.A.Nos.3of2022 and 1 of 2023 inA.S.No. 169 of 2014) ...Respondents Appeal filed under Section 96 of CPC, against the Judgment and Decree made in O.S.No. 18 of 2002 dated 23.12.2013 on the file of the Additional Senior Civil Judge, Chittoor. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Trial Court and the material papers in the suit and upon hearing the arguments of Sri D Vijaya Chandra Reddy, Advocate for the Appellants, of Sri P. Rajsekhar, representing Sri P Jagadish Chandra Prasad, Advocate for the Respondent Nos.1 to 9, of Sri Kanchumati Subba Rao, Advocate for the Respondent No. 10, of Sri V Disha Chowdary, Advocate for the Respondent Nos.11, 12, 14 & 15 and of Sri C Narendra Babu, Advocate for the Respondent No. 13. This Court doth order and decree as follows: 1. That the appeal be and is hereby allowed. 2. That the judgment and decree, dated 23.12.2013 in O.S.No.18 of 2002 the file of Additional Senior Civil Judge Chittoor be and is hereby set on aside. 3. That a preliminary decree is passed in favour of the Plaintiffs, directing the partition of plaint schedule properties into two equal shares and allotting one such divided share to them. While working out the equities, the Additional Civil Judge (Senior Division), Chittoor, may consider the feasibility of allocating the 1®' Defendant’s share to Defendants 3 to 9 based on their sale transactions. 4. That without the prayer in the plaint, the Plaintiffs are not entitled to past profits. However, they are entitled to future mesne profits. 5. That both parties are directed to bear their own costs in this appeal. Sd/- S.V.S.R.MURTHY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The Additional Civil Judge (Senior Division), Chittoor, Chittoor District. 2. Three CD Copies TK sree \ HIGH COURT DATED:28/02/2025 I DECREE AS.No.169 of 2014 ffg 17 MAR 2025 , Current Section . ^j»^£SPATCH'gs«i ."vw*:/-- ALLOWING THE APPEAL SUIT