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CASE NO.: Appeal (civil)  1420-1421 of 2008

PETITIONER: N. Srihari (D) Through LRs. & Ors

RESPONDENT: N. Prakash & Ors

DATE OF JUDGMENT: 19/02/2008

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NOS. 1420-1421 OF 2008 (Arising out of SLP (C) Nos. 17808-17809 of 2005) WITH CIVIL APPEAL NOS. 1429,1422-1423,1424-1425,1426  & 1427-1428 OF 2008 (Arising out of SLP(C) Nos. 18481/2007,  24682-24683/2005, 26425-26426/2005, 26429/2005 & 23029-23030/2007

P. Sathasivam, J. 1)      Leave granted.  2)      The appellants herein are the unsuccessful defendants in  O.S. No.9 of 1993 on the file of the trial Court as well as the  High Court.  The LRs of the deceased parties as well as the  purchasers and third parties who were not parties before the  trial Court and the High Court also filed appeals.  The  respective claim/stand of the parties is being explained  hereunder.  In order to understand their claim, entitlement  etc., let us refer to the geneology table of the family of N. Saya  Goud.  GENEOLOGY OF N. SAYA GOUD                                 N. Saya Goud --------- Chandramma (wife) (Died in 1956)          (Died on 23.4.1984)                 |                                         | |                                                                                  | N. Balrajaiah (son)                                                        N. Sathiah Goud ( son) Died in 1981                                                                Respondent 6(i)( a) |                                                                  | ____________________________                                                       | |                               |                                        Sulochana (Wife) (d ied) N. Kausalya (Wife)      N. Pentamma( Wife died)                             |                                 Defendant-1                                         |                                 |                                                   | _________________________________________________________                           | |                 |        |             |                                   |               |        N.Srihari           N. Srinivas    N. Sayanna     N.Laxminarayana   N. Dayanand                  | Petnr.      Resp.10        Resp.11            Petnr.2            Petnr.3                         |    Def.2       Def.3                   Def.4                Def.5                      Def.6                        | (died)      (died)                                                                          

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| Rep.by        Rep.by Lrs.                                                                    | Lrs.1(i)to(vi)   10(i) to (iii)                                                                               |                                                                                     |        

______________________________________________________________              |               |              |               |          |                        |   |               |        |             |                  |                       |            N.Prakash    N. Narender    N. Kasinath N.Venkatesh    N. Arvind           N. Suresh      Res.1          Resp.2            Resp.3       Resp.4      Resp.5           Respondent            Plaintiff-1     Plaintiff-2     Plaintiff-3    Plaintiff-4        Plaintiff-5            Plaintif-6                                                                                     Died                                                                                 Rep.by Lrs.                                                                     6(i) to (iii)                                                                                                                                                                      

3)      One Shri N. Saya Goud had a wife by name, Smt.  Chandramma and two sons, namely, Balarajiah Goud and  Sathaiah Goud.  Balarajiah Goud had two wives, Pentamma  (first wife) and Kausalya (second wife), five sons and three  daughters through his first wife and the second wife was  issueless.  Sathaiah Goud had a wife, Sulochana and six sons.    On 2.1.1956, Shri Saya Goud executed a Will under which he  mentioned that the lands bearing Survey Nos. 284, 285, 290,  292 and 293 admeasuring 19 acres and 15 guntas situated in  Lothukanta, Alwal, Ranga Reddy District were in his protected  tenancy and that the other movable properties mentioned  therein, were acquired by himself and his wife Chandramma  and bequeathed all the movable and immovable properties  jointly held by him and his wife in favour of his wife, Smt.  Chandramma and his eldest daughter-in-law Pentamma.  The  beneficiaries of the Will were to enjoy the properties jointly.   Smt. Chandramma was given life time interest under the said  will.  Sathaiah Goud, second son of Shri Saya Goud, was an  attestator of the Will dated 2.1.1956 executed by his father.  After the demise of Shri Saya Goud, the pattadars of the land  for which shri Saya Goud acquired the right of protected  tenancy had transferred their pattadars right and interest in  favour of Smt. Chandramma and Smt. Pentamma jointly as  the heirs of Shri Saya Goud upon payment of the required  consideration in respect of the land of an extent of 19 acres 15  guntas and consequently the Deputy District Collector passed  an award dated 17.4.1956 in favour of Smt. Chandramma and  Smt. Pentamma as per his award No. T/85/1954.  Thereafter  in 1959, Smt. Chandramma and Smt. Pentamma jointly  purchased an extent of 1 acre 30 guntas of land, therefore,  their joint holding had risen to 21 acres 05 guntas.  On  6.3.1969, one Registered Settlement Deed was executed by  Smt. Chandramma transferring an extent of 2982 sq. yards of  land from the joint holding in favour of Smt. Sulochana and  one Registered Release Deed transferring her undivided share  in favour of Pentamma.  On the same day, Smt. Sulochana  executed a registered Disclaimer Deed claiming any right over  the property that is vested with Smt. Pentamma and Smt.  Chandramma.  In the year 1970, the second son of Shri  Balarajiah Goud and Smt. Pentamma pledged the documents  concerning the houses and the land in an extent of 21acres

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with Andhra Bank and obtained loan for business purposes.     In failure of payment of outstanding dues of the loan amount,  the Andhra Bank filed O.S. No. 403 of 1976 for recovery of the  amount and thereby obtained a decree in the year 1977  wherein both the registered Release Deed executed on  6.3.1969 and the Will of Shri Saya Goud dated 2.1.1956 were  marked as exhibits.  In the year 1977, eldest son of  Smt.  Pentamma, Shri N. Srihari, filed a suit for partition against the  other defendants/petitioners herein and Smt. Chandramma.   In the year 1981, the suit for partition was compromised.  Shri  Balarajiah Goud expired on 24.5.1981.   4)      After the demise of Smt. Chandramma, i.e. on 23.4.1984,  the sons of Shri Sathaiah Goud claimed the entire share of  Smt. Chandramma through a Will dated 28.9.1979 purported  to have been executed in their favour which is supposed to  have been found in a box.  They filed O.S. No. 456 of 1984 on  the file of the Principal Sub-Judge, Ranga Reddy District. In  the year 1993, the said suit was transferred to the District  Judge, Ranga Reddy District and renumbered as O.S. No.9 of  1993.  By judgment and decree dated 8.9.1993, the District  Judge allowed the suit in favour of the plaintiffs/respondents  herein and passed a decree in their favour. Aggrieved by the  judgment and decree passed by the learned District Judge, the  defendants/appellants herein preferred an appeal bearing No.  78 of 1994 and CMP No. 17581 of 2001 before the High Court  of Judicature Andhra Pradesh at Hyderabad.  By the  impugned judgment dated 17.2.2005, the learned single Judge  of the High Court dismissed the appeal and ordered the Civil  Miscellaneous Petition.   5)      Aggrieved by the judgment in A. S. No. 78 of 1994, N.  Srihari (since deceased), N. Laxminarayana and N. Dayanand  (defendant Nos. 2, 5 and 6) filed SLP (C) No. 17808 of 2005.   The very same parties aggrieved by the decision in CMP No.  17581 of 2001 preferred SLP (C) No. 17809 of 2005.  While  ordering notice in the above SLPs, this Court passed an  interim order to the effect that "final decree proceedings may  go on, but the final decree as such shall not be signed unless  permitted by this Court".  Based on the said interim order,  when the final decree proceedings were in progress Ms. N.  Anuradha, N. Saivenkataramana and B. Sai Nagraj, defendant  Nos. 18-20 filed I.A. No. 2017 of 2006 under Section 151 CPC  and requested the trial Court not to proceed with the enquiry  in relation to the suit schedule property on the ground that  the "Occupancy Rights Certificate" was issued in favour of the  first defendant in respect of the entire suit schedule property  and that the land covered by the provisions of Andhra Pradesh  (Telangana) Area Abolition of Enams Act, 1955 cannot  constitute the subject-matter of a partition suit.  The trial  Court dismissed the application by order dated 13.07.2006.   Questioning the said order, the petitioners filed CRP No. 3726  of 2006 before the High Court.  By order dated 30.08.2006,  learned Single Judge of the High Court confirming the order of  the trial Court dismissed the revision.  Against that order of  the High Court, the petitioners therein (defendant Nos. 18-20)  filed SLP (C) No. 18481 of 2007.  6)      Against the judgment dated 17.02.2005 in A.S. No. 72 of  1994 and CMP No. 17581 of 2001 Mr. Sai Venkataramana,  Ms. N. Anuradha and B. Sai Nagraj (appellant Nos. 7, 6 and 8  in the High Court) preferred SLP (C) Nos. 24682 and 24683 of  2005.  7)      Against the very same judgment dated 17.02.2005 in A.S.  No. 78 of 1994 and CMP No. 17581 of 2001 One Ramesh  Chawla S/o Manohar not a party before the High Court has  filed SLP (C) No. 26425-26426. 8)      Assailing the order in A.S.M.P.14246 of 2004 in A.S. No.

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78/1994 filed for impleading him as respondent No. 23 in A.S.  78 of 1994 which was dismissed by the High Court on  17.02.2005 the said Ramesh Chawla a third party has filed  SLP (C) No. 26429 of 2005.  9)      Against the same judgment dated 17.02.2005 in A.A. No.  78 of 1994 in CMP No. 17581 of 2001 defendants 2, 4 to 6 and  LRs of the third defendant filed SLP (C) No. 23029-23030 of  2007.  10)     We heard Mr. Harish N. Salve, Mr. L.N. Rao, Mr. P.S.  Mishra and Mr. Mukul Rohtagi, learned senior counsel for the  appellants and Mr. Dushyant A. Dave, Mr. Vishwanathan  Shetty and Mr. T.L. Vishwanatha Iyer, learned senior counsel  for the contesting respondents.  11)     Mr. Harish N. Salve, learned senior counsel appearing for  the main appellants, after taking us through the pleadings of  all the parties, the judgment of the trial Court and the High  Court contended that in spite of the fact that the plaintiffs  themselves referred to the earlier Will dated 02.01.1956  executed by Saya Goud, merely because the original of the  same was not placed before the Court by the contesting  defendants, the same was not considered, hence the decision  arrived by the trial Court as well as the High Court cannot be  sustained.  He very much commented the impugned judgment  of the High Court which, according to him, failed to take note  of the earliest Will dated 02.01.1956.  While elaborating the  above point, he submitted that out of 92 page judgment, the  High Court referred to pleadings of the parties and arguments  up to page 85 and from page 86-92 alone discussed the Will  (Exh.A-1) dated 28.09.1979 and Release Deed (Exh.A-7) dated  06.03.1969 and dismissed the appeal and confirmed the  judgment and decree of the trial Court.  In the same order, the  High Court has also disposed of CMP No. 17581 of 2001 by  marking original of Exh.A-7 as Exh.B-64.  We heard the  submissions of other counsel.  12)     In the light of the submissions made, we have gone  through the judgments of the trial Court, High Court as well  as the material documents, namely, (i) Will dated 02.01.1956  (ii) Release Deed (Exh.A-7) dated 06.03.1969 (iii) Settlement  Deed (Exh.B-6) dated 06.03.1969 and (iv) Will (Exh.A-1) dated  28.09.1979.  As rightly pointed out by Mr. Salve, though the  contesting defendants were not in a position to place the  original Will dated 02.01.1956, admittedly, the plaintiffs have  made a reference to the same Will in their plaint.  In O.S. No.  456 of 1984 filed by N. Prakash and 5 of his brothers against  N. Pentamma (Defendant no. 1) and her sons in more than one  place referred the Will dated 02.01.1956.  In para 4 it was  submitted before the trial Court: "4. During his life time, the late Nemuri Saya Goud executed  a Will on 02.01.1956 under which he mentioned that the  lands bearing Survey Nos. 284, 285, 290, 292 and 293,  admeasuring 19 Acres and 15 Guntas, situate in  Lothukanta, Alwal, Ranga Reddy District were in his  protected tenancy and that the other movable properties  mentioned therein, were acquired by himself and his wife  Nemuri Chandramma by their joint exertions and hard  labour.  Under the said Will, he bequeathed all the properties  movable and immovable jointly held by him and his wife,  jointly to Nemuri Pentamma, the defendant No.1 herein and  his wife Nemuri Chandramma.  Nemuri Saya Goud died a  few months later and the immovable properties standing in  the name of Nemuri Saya Goud came into the joint  possession and enjoyment of Nemuri Chandramma and  Defendant No.1 herein.  Subsequently, Nemuri Chandramma  and the Defendant No.1 purchased the rights of the pattedar  under the registered sale deed and thus they become the

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absolute owners of the Agricultural Lands mentioned in the  Will of late Nemuri Saya Goud.  Later, they also jointly  purchased Agricultural Lands bearing Survey No. 291 and  602, situated at plaintiffs are herewith filing a Geneological  Tahsil showing the relationship of parties." Apart from the above, specific reference, the plaintiffs have  also enclosed a copy of the Will dated 02.01.1956 executed by  N. Saya Goud along with list of documents filed along with the  plaint. S.No. Date of  Document Parties to  Description of Document 1 to 6. Xxxx Xxxx Xxx 7. 02.01.1956 N. Saya Goud &  Defendants  Copy of Will executed by  N. Saya Goud In the written statement filed by the 3rd defendant, there is a  reference to the Will dated 02.01.1956 in para 5, which reads  thus: "5. xxx   Therefore, Saya Goud executed a Will dated  0.01.1956.  Under the said Will, he intended to bequeath the  said property to the wife of Balaraj Goud, Pentamma so that  her children (sons the wife of Balaraj Goud) would benefit  from his estate.  He, however, made specific mention in the  effective part of the Will to the effect that during the life time  of Chandramma, Pentamma should look after the welfare of  Chandramma and that Pentamma should spend the income  from the properties for the welfare and maintenance of both,  thereby he had safeguarded the well being and maintenance  of Chandramma for the rest of her life time by making  Pentamma responsible for the same." It is also useful to refer the stand taken in the written  statement filed by the first defendant.  Para 4 and 5 reads: "4. As regards para 4, it is submitted that the late Nemuri Saya  Goud bequeathed his properties, movable and immovable held by  him and his wife, Nemuri Chandramma, jointly to the defendant  No.1 herein and his wife late Nemuri Chandramma.  It is  submitted that Namuri Saya Goud died in the year 1956.  After  his death, all the properties devolved upon his wife Chandramma  and his daughter-in-law, Pentamma, who is the defendant No.1  herein and arms into the joint possession and enjoyment of  Nemuri Chandramma and the defendant No.1 herein.  Thus,  Nemuri Chandramma and defendant No.1 herein become the  absolute owners of the agricultural lands as mentioned in the Will  executed by late Saya Goud.  Thereafter, the said Nemuri  Chandramma and defendant No.1 herein purchased agricultural  lands bearing S.No. 284, 285, 290, 291, 292, 293 and 602, situate  at Lothucunta, Alwal, R.R. District.  It is submitted that thereafter  the late Nemuri Chandramma executed a release deed in favour of  the defendant No.1 herein.  As such the defendant No.1 herein  alone has been in continuous possession and enjoyment of the  agricultural lands as absolute owner.  5. xxx  The Will executed by late Saya Goud clearly shows that  late Nemuri Chandramma had only life interest in the properties  and thereafter all the rights in her favour have been relinquished  in favour of the defendant No.1 herein." 13)     While considering the claim of the parties, learned trial

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Judge has also adverted to the Will dated 02.01.1956. 12. Since the common question of law and facts arise in deciding  these three issues, these three issues are being dealt together.   For deciding these issues, it is necessary to advert to some  admitted facts and conditions of parties.  The plaintiffs,  defendants 2 to 6 and 15 to 17, are the grand children of Saya  Goud.  Plaintiffs are children of Sathaiah Goud, Defendant No.1 is  the wife of Balarajaiah Goud, Defendants 2 to 6 and 15 to 17 are  the children of Balarajaiah Goud and the 1st defendants, 2 to 5  and 15 to 17, executed a Will dated 2.01.1956 (the execution of  the said Will by Saya Gouyd is not denied or disputed but the  contents of the Will are under dispute). "13.  Since the Will executed by Saya Goud is not brought on  record by either of the contesting parties, evidence available on  record has to be considered to find the contents of the Will of Saya  Goud.  In fact, plaintiffs filed a copy of the Will dated 02.01.1956,  executed by Saya Goud along with other documents as document  No.7 with the plaint.  But neither side brought that document on  record as an exhibit.  Neither side took steps to send for the  original of the Will, which as per the evidence of DW-1 is in the  custody of Andhra Bank." The above pleadings as well as the discussion by the trial  Court clearly show about the existence of earliest Will dated  02.01.1956 executed by Saya Goud.  The fact remains that  though the plaintiffs themselves placed a certified copy of the  said Will, original of the same has not been produced by the  defendants.  It is their case that the original had been filed in  a connected suit being O.S. No. 403 of 1976 filed by a Bank  Andhra Bank.  Though steps had been taken by the High  Court for transfer of the said document, till its final decision,  the same was not reached and ultimately the High Court  disposed of the appeal on the basis of the available materials  and confirmed the judgment and decree of the trial Court.   14)     In view of the fact that the plaintiff themselves referred to  the Will dated 02.01.1956 in their plaint, asserted the same by  the contesting defendant in their written statement and  specific reference to the same by the trial Court as well as the  High Court, in the absence of specific finding as to the Will  dated 02.01.1956, we are of the considered view that in the  interest of justice, the matter has to go back to the High Court  for fresh consideration in respect of the earliest Will dated  02.01.1956.   15)     In view of the above conclusion, without going into the  merits of the claim made by the parties and without  expressing any opinion, we remit the matter to the High Court  for fresh disposal.  We permit the appellants/contesting  defendants to place the original Will dated 02.01.1956 for  consideration of the High Court.  In case, if the original is not  available in view of the earlier proceedings, they are free to  place the certified copy of the Will dated 02.01.1956 and in  that event, it is for the High Court to consider the same  including valid objections to be raised by the other parties in  accordance with law.  Inasmuch as the appeal is of the year  1994, we request the High Court to dispose of the same afresh  in the light of the observations made above by giving priority  not later than 30.09.2008.  All the parties to the proceedings  including the subsequent purchasers are free to place their  respective stand and it is for the High Court to consider  uninfluenced by any of the observations made above.  Till  such final decision being taken by the High Court, parties are  directed to maintain status quo prevailing as on date.  All the  appeals are disposed of accordingly.  No costs.