BAZAWADA RADHAKRISHNA MURTHY Vs. MANNE PRAVEEN KUMAR

JUDGEMENT

(1.) A.S. 798 of 2001 arises out of the judgment dated 28-09-2000 in O.S. No. 42 of 1995 on the file of the court of Additional Senior Civil Judge, Ongole; whereas A.S. No. 275 of 2006 arises out of the judgment dated 11-09-2002 in O.S. No. 142 of 1998 on the file of the court of Additional Senior Civil Judge, Ongole.

(2.) Both the suits relate to the estate of one Raghavamma wife of Late Chenchaiah. One late Manne Chenchaiah and Audenna were brothers, and Raghavamma was the wife of Chenchaiah who died in 1930 pre-deceased Audenna. M. Venkata Subbaiah was the son of Audenna. After the death of Audenna, Venkata Subbaiah executed a registered settlement deed on 01-08-1947 in favour of Raghavamma towards her maintenance and separate residence with limited rights and with a condition that the same will be reverted to his family. Thereafter, M. Venkata Chalapathi who is the first Defendant in O.S. No. 42 of 1995 and who is the grand-son of Audenna filed the suit for partition and separate possession of his share in O.S. No. 33 of 1955 against his father M. Venkata Subbaiah and others. The property given to Raghavamma-Plaintiff in O.S. No. 42 of 1995 was shown as "G" schedule. The suit was decreed and Raghavamma was shown as 38th Defendant in the above suit. That suit was decreed holding that Raghavamma has got only life-estate and the partition of that property was postponed till after the death of Raghavamma. As against that judgment, the parties have carried the matter in appeal to High Court in A.S. Nos. 256, 259, 260 and 271 of 1959 and 232 of 1962 and a learned Division Bench of this Court in its judgment dated 13-10-1964 held that a direction should be given with regard to partition of those properties also and accordingly the Division Bench held that a direction is to be incorporated in the decree that the vested remainder in "G" schedule property (the property given to Raghavamma), first Plaintiff and first Defendant should have equal share. With such a direction the appeals were disposed off and in that appeals Raghavamma did not contest though she gave evidence in O.S. No. 33 of 1955 as PW. 4 confining her rights as a limited estate holder. The suit O.S. No. 33 of 1955 was disposed off on 09-03-1959. While the matter stood thus, Raghavamma filed the suit O.S. No. 42 of 1995 contending that she is an illiterate woman and not aware of her legal rights under Section 14(1) of the Hindu Succession Act, 1956 (for brevity "the Act") and she did not claim so by filing a separate written statement in the earlier suit and remained ex parte. The first Defendant and his father fraudulently and collusively obtained the earlier preliminary decree in O.S. No. 33 of 1955. Therefore, the said decree is not binding and she is the absolute owner of the property. She also claims to have executed a registered will on 31-03-1981 in favour of the second Plaintiff who came on record after her death. It was also pleaded that M. Venkata Subbaiah executed a will in favour of the second Defendant in O.S. No. 42 of 1995 with regard to his share and there is no valid right created under the will. The Plaintiff learnt that Defendant Nos. 2 and 3 surrendered an extent of Ac.0.64 cents towards excess hold to the fourth Defendant which is also not valid. The Defendants are also trying to take forcible possession of the property. Therefore, the suit was filed for declaration of title and grant of injunction in forma pauperis.

(3.) The first Defendant filed a written statement admitting that the second Plaintiff was adopted by the first Plaintiff and she executed a will. It was further pleaded that in case the rights of the Plaintiffs are not enlarged, the first Defendant will get a share.