KORATHAM POTHURAJU Vs. KORATHAM APPAYYA

JUDGEMENT

(1.) THIS Court allowed SAMP. No. 2333 of 2008 granting leave to raise additional substantial questions of law and the said substantial questions of law are as hereunder: a) Whether the family arrangement pleaded by the defendant prevails over Ex. A. 1 and binding on all? b) Whether the defendant, having pleaded that there is a family arrangement according to which plaintiffs and defendant have to take equal share, is entitled to 1 acre of land? c) Whether the lower appellate Court is justified in holding that the plaintiff is entitled to only 0. 42 cents in the absence of a pleading that the 2nd plaintiff did not discharge his share of debt? d) Whether the intention of testator is vitiated by the subsequent family arrangement and without there being a registered document to that effect? e) Whether the decree and judgment of the lower appellate Court is vitiated by non-consideration of material evidence, consideration of irrelevant evidence and by perverse reasoning?

(2.) THE second appeal is filed against the judgment and decree made in a. S. No. 75 of 1980 on the file of the Additional District judge, Krishna, at machilipatnam wherein the dismissal of the suit O. S. No. 513 of 1976 on the file of the I Additional District Munsif at Machilipatnam, had been modified. In the second appeal the appellant/second plaintiff is no more likewise the respondent/defendant is no more and the legal representatives are brought on record. This Court allowed the second appeal with costs setting aside the judgment and decree of the appellate Court to the extent indicated therein and it was also observed that the second plaintiff is entitled for a decree as prayed for in the plaint. Aggrieved by the same, the matter was carried in Civil appeal No. 5227 of 1998 to the Supreme Court and the Apex Court while allowing the appeal set aside the judgment of this Court and restored the same to its original file for fresh consideration in accordance with law. Subsequent thereto in view of the application, SAMP. No. 2333 of 2008 referred to supra, being allowed the aforesaid substantial questions of law have been formulated.

(3.) SRI T. S. Anand, learned counsel representing the present appellants -legal representatives of the second plaintiff, after pointing out to the substantial questions of law would maintain that when the Will was believed and a finding was recorded, to rely upon the vague oral evidence relating to family arrangement and disposing of with certain directions by modifying the dismissal of suit cannot be sustained. Learned counsel also would maintain that even if the findings recorded by the Courts below be carefully appreciated, the directions issued by the appellate Court cannot be sustained. Even otherwise when there is no acceptable evidence with regard to discharge or non-discharge of debts, the finding recorded by the appellate Court cannot be sustained. The counsel also would maintain that the second appeal is preferred by the second plaintiff alone since the first plaintiff was satisfied with the decree made by the appellate Court allotting some land to him and hence in the facts and circumstances, non-impleading of the first plaintiff would be of no consequence since the second plaintiff is not claiming any relief as against the first plaintiff. Learned counsel also had pointed out to the finding recorded by the Court of first instance and also the findings recorded by the appellate court and would maintain that in the facts and circumstances of the case the second appeal to be allowed decreeing the suit as prayed for. The learned counsel also placed reliance on certain decisions.