K. RAJAGOPALA REDDY Vs. NARASAMMA AND ORS.

JUDGEMENT

(1.) THIS is a plaintiffs Regular First Appeal against the judgment and decree of the Trial Court, which has dismissed the suit of the plaintiff for declaration that he is the absolute owner in possession of the suit schedule property and for consequential relief of permanent injunction.

(2.) FOR the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(3.) THE case of the plaintiff is, the deceased Chinnappa Reddy and the 2nd defendant executed a Will on 20.04.1979 and got it duly registered on 21.04.1979 bequeathing the properties to the plaintiff and the 5th defendant. After the death of Chinnappa Reddy, the plaintiff and the 2nd defendant are looking after the properties. For their convenience, Sy. No. 93/1 of 'B' schedule and another land in Sy. No. 94/1 bequeathed to the plaintiff was exchanged in favour of the 5th defendant for Sy. No. 95 to an extent of 27 guntas. An affidavit is also jointly sworn to by the plaintiff and the 2nd defendant on 06.08.1994. It is the further case of the plaintiff that it is the absolute self -acquired properties of deceased Chinnappa Reddy and only the deceased Chinnappa Reddy was empowered to execute the Will. Only by wrong information, his wife is also joined as a co -executor. The 2nd defendant has no manner of right, title or interest in the suit schedule properties. The 2nd defendant has no right to execute or revoke the Will. The defendants also conceded the right of the plaintiff in respect of the exchange of property. The deceased Chinnappa Reddy clearly intended that the property shall go to the plaintiff and not the 2nd defendant. Thus under the Will, the plaintiff has succeeded to the suit schedule properties. As per the Will, the plaintiff has performed the obsequies of Late Chinnappa Reddy. Under the terms of the Will 'A' schedule properties in the Will has fallen to the share of the plaintiff and 'B' schedule properties in the Will has fallen to the share of the 2nd defendant. The plaintiff is taking care of the 2nd defendant and looking after her. The 2nd defendant is aged about 75 years and since six months, she is not having any worldly knowledge. The 2nd defendant has become too weak mentally and since two years she is under the influence of the 1st defendant. The 1st defendant being the elder daughter of Narasamma - the 2nd defendant, is coercing the 2nd defendant and is attempting to secure the documents forcibly. The 2nd defendant is not having any independent right or interest or exclusive possession over the property as the same exclusively belonged to Late Chinnappa Reddy, who was its absolute owner. The 1st defendant, who is inimically disposed towards the plaintiff, in order to cause loss and injury to the plaintiff is coercing and by undue influence is attempting to create fraudulent documents in her favour. The 1st defendant has got issued a legal notice on 16.11.1993 in the 2nd defendant's name alleging that the plaintiff is attempting to sell schedule properties to the 3rd defendant. The plaintiff has issued a proper reply notice on 29.12.1993. The 1st defendant has illegally secured entries in the revenue records changed her name by suppressing the Will dated 20.04.1979. Against the same, an appeal is also preferred. The 1st defendant is making attempts to sell the properties to the 3rd defendants and others. The plaintiff on 23.02.1994 filed O.S. No. 92/94 before the Munsiff at Gowribidanur against defendants 1 to 3 for permanent injunction restraining defendants 1 and 2 from alienating the plaint schedule properties. On 23.02.1994, an order of temporary injunction restraining the defendants 1 and 2 from alienating the property was granted. In spite of granting temporary injunction and knowledge of temporary injunction, the defendants have virtually entered into some fraudulent documents on 18.07.1994. The 3rd defendant is attempting to construct a Cinema Theatre in the property. In spite of the plaintiff filing the application for violating injunction order, defendant No. 3 has continued his illegal construction on suit schedule item I. The plaintiff filed another application under Order 39 Rules 1 and 2 against defendant No. 3 to restrain him from putting any construction on the property in Sy. No. 95. The Hon'ble Court on 12.01.1995 rejected the application on the ground that such an application cannot be entertained in a suit as filed by the plaintiff. Under the circumstances, the plaintiff was advised to file a suit for declaration and injunction. By way of an amendment, the plaintiff pleaded that the defendants 1 and 2 were duly restrained by means of an injunction order in O.S. No. 92/1994 from alienating the properties and the temporary injunction order is duly served on defendants 1 and 2 on 28.02.1994. The 3rd defendant refused the suit summons on 28.02.1994. On 18.07.1994 in violation of temporary injunction, the 1st defendant has sold the land in Sy No. 95 and later, the 2nd defendant executed the correction deed on 05.10.1998, which are violative of Court orders. Thus the documents dated 18.07.1994 and 05.10.1998 are null and void. The defendants 3 and 4 do not get any right, title or possession from the aforesaid documents. Therefore, the plaintiff has filed a suit for a declaration that he is the absolute owner in possession of the suit schedule properties and for a decree for permanent injunction.