LELLAPALLI SAKUNTALA DIED PER LRS Vs. VEDANTAM SEETHAMAHALAKSHMI

JUDGEMENT

(1.) THIS is plaintiff's appeal against the judgment and decree of lower Court dismissing the suit for partition based on unregistered Will. Lellapalli Sriramulu was medium farmer of Chittavaram village, near Narsapur town in West Godavari District. Seetaramaswamy and Radhakrishna Murthy are sons and Seetamahalakshmi and Balatripura Sundari are daughters of Sriramulu. Long prior to 1976, there was a partition between father and his two sons, in which sriramulu got agricultural lands and tiled house. On 12. 01. 1976, Sriramulu executed a registered Will. Under this Will, he gave some property to two daughters, the eldest son and the wife of second son. Some time thereafter, he suffered paralysis. He was treated at Dr. Keshava Rao Hospital at Narsapur, during which either his two daughters or second daughter-in-law looked after him. After discharge from hospital, he spent his convalescence period at the house of second son at Narsapur, who statedly sold his share of properties and took up a job with a Marvadi businessman in Narsapur. He was allegedly served by second son and daughter-in-law. On 05. 08. 1980, Sriramulu executed another will, under which daughters were given five bags of paddy and second daughter-in-law was given substantial portion of property. The legatee made a demand on others for partition of property bequeathed to her, in vain. Therefore, she filed suit being O. S. No. 109 of 1981 on the file of the Court of the Subordinate judge, Narsapur for partition of plaint 'a' (lands), 'b' (tiled house) and 'c' (movables) schedule properties.

(2.) SEETARAMASWAMY, Seetamahalakshmi, Bala Tripura Sundari and radhakrishnamurthy are defendants 1 to 4 respectively. Defendants 5 to 8 are alleged to be tenants of plaint 'a' schedule properties. During pendency of the suit, defendant No. 4 (husband of plaintiff) died and his son was brought on record as defendant No. 9. After death of first defendant, his wife and children came on record as defendant Nos. 10 to 12. First defendant filed written statement, which was adopted by his sisters, defendant Nos. 2 and 3. Defendant no. 4 filed a separate written statement supporting the case of wife (plaintiff ). Defendants 5 to 8 remained ex parte and defendant No. 9 adopted written statement of defendant No. 4, whereas defendant Nos. 10 to 12 adopted written statement of first defendant. The suit was opposed mainly on the ground that the Will, dated 05. 08. 1980 is forged and brought into existence, after death of Sriramulu on 16. 10. 1980. The second Will was also challenged on the ground that it is suspicious. It is further alleged that due to matrimonial disharmony with their husbands, defendants 2 and 3 left their husbands and were staying with Sriramulu at Chittavaram and therefore, Sriramulu had a special affinity for them and he would not have deprived them of property, which was given to them under the registered Will, dated 12. 01. 1976.

(3.) THE trial Court framed seven issues. The crucial issue before the trial court was whether the unregistered Will, dated 05. 08. 1980 is true, valid and binding. The plaintiff examined herself as P. W. 1 to depose about the plaint case. The unregistered Will was marked as Ex. A. 1. Polisetty Manikyam, one of the attestors, was examined as P. W. 2. The scribe of the Will was examined as p. W. 3. Defendant No. 11, who was impleaded as legal heir of deceased first defendant, was examined as D. W. 1 and Bala Tripura Sundari, Sriramulu's second daughter, was examined as D. W. 2. Besides, marking registered Will as Ex. B. 1, defendants also marked five other documents and two exhibits are marked by the court. On considering oral and documentary evidence, the Court below disbelieved Ex. A. 1, Will, but decreed the suit for partition directing partition of item 1 of plaint 'a' schedule property into four equal shares by metes and bounds and delivery of separate possession of one such share to the plaintiff. The other claim in respect of plaint 'a', 'b' and 'c' schedule properties was dismissed.