LAWS(APH)-2005-2-64

BANDLAMURI VENKATESWARA Vs. JANIKAMMA

Decided On February 08, 2005
BANDLAMURI VENKATESWARA Appellant
V/S
JANIKAMMA Respondents

JUDGEMENT

(1.) This Letters Patent Appeal is against the judgment of the learned Single Judge of this Court dated 12.11.2001 in AS No.2072 of 1986, allowing the appeal of plaintiff- respondent No.l thereby setting aside the judgment and decree passed by the Principal Subordinate Judge, Kurnool dated 5.3.1984 in OS No.41 of 1991 dismissing the suit of plaintiff. Respondent No.l herein is the plaintiff, Respondent No.2 was Defendant No.1, Respondents 3 to 6 were Defendants 3 to 6 and appellant was Defendant No.2 in the suit.

(2.) Facts-in-brief are that late B. Chinna Busi Reddy had three sons, viz., Nandaiah, Tirupamaiah and Swamy Reddy. Plaintiff is the daughter of Tirupamaiah through his first wife Mangamma. Defendant No. 1 is the second wife of Tirupamaiah. Tirupamaiah had only one issue i.e., the plaintiff. Defendant No.2 is the grandson of Nandaiah and Defendants 3 to 6 are sons of Swamy Reddy. Admittedly, the three sons of Chinna Busi Reddy had partitioned their properties. Dispute herein pertains to the estate of deceased Tirupamaiah. After the death of Tirupamaiah, his daughter (plaintiff) filed the suit claiming her half share in the property left behind by her father late Tirupamaiah from Defendant No.2, the second wife of Tirupamaiah. According to the plaintiff, Defendant No.1 told her that Tirupamaiah had executed gift deed Ex.B1 dated 15.10.1980 in her favour bequeathing part of the property owned by Tirupamaiah with absolute rights and had bequeathed major portion of the remaining property by a Registered Will Ex.B2 dated 15.10.1980 in favour of B. Koteswara (D2) the grandson of Sri Nandaiah and the remaining smaller part in favour of the plaintiff. In the suit, the plaintiff alleged that the will is a forged one. The gift deed and the will were obtained under undue influence by practising fraud. Tirupamaiah was not in sound and disposing state of mind on 15.10.1980 when the will is alleged to have been executed and that the will was not executed voluntarily. It was executed under influence and was result of practice of fraud. Particulars of fraud alleged were that it was a collusive act on the part of Defendant No.1 and the father of Defendant No.2. It was quite unnatural that the only daughter would be given negligible share by her father in the property whereas major part would go in favour of D.2 who had never been brought up by his father.

(3.) Suit was contested by Defendants 1 and 2. Defendant No.2 was a minor represented by his father Venkatesam who also appeared as D.W.2. Suit was tried on six issues. Issues No.1 and 2 now relevant for the purpose of this appeal reads as follows: