N SRIHARI Vs. N PRAKASH

JUDGEMENT

(1.) THIS appeal has been preferred by plaintiffs in O. S. No. 456 of 1984. The respondents herein are the defendants in the said suit. The suit was filed for partition of the suit schedule properties into two shares and to deliver possession of one such share and for profits.

(2.) THE averments of the plaint filed by the plaintiffs are briefly as follows: the plaintiffs are the sons of Nemuri sathaiah Goud. Sathaiah Goud is the son of Nemuri Saya Goud. Nemuri balrajaiah Goud is the brother of Sathaiah goud who is elder to him. Balrajaiah goud had two wives viz. , (i) Nemuri pentamma (the first defendant) and (ii) Nemuri Kausalya. Nemuri Pentamma gave birth to five sons through Balrajaiah goud who are defendants 2 to 6. The first defendant lost her husband Balrajaiah goud. Nemuri Saya Goud executed a Will on 2. 1. 1956, wherein he mentioned that an extent of Acs. 19. 15 guntas covered by sy. Nos. 284, 285, 290, 292 and 293 situated at Lothukunta Village of Alwal Mandal, ranga Reddy District, were under his protected tenancy and there are other movable properties acquired by himself and his wife Nemuri Chandramma by their joint exertions and hard labour. It is further mentioned that he is bequeathing all movable and immovable properties held by himself and his wife jointly to the first defendant and his wife Nemuri Chandramma. Few months after the execution of the Will, Saya goud died and the properties covered by the Will came into joint possession and enjoyment of Nemuri Chandramma and the first defendant. Subsequently, Nemuri chandramma and the first defendant purchased the rights of the pattedar under an unregistered sale deed in respect of the land mentioned in the Will and became the absolute owners of the lands mentioned in the Will. They also jointly purchased agricultural lands bearing Sy. Nos. 291 and 602 of Lothukunta Village and were in joint possession and enjoyment of the same. After the death of Nemuri Saya Goud in the year 1956, his eldest son Balrajaiah goud became the head of the family and exercised great control over his mother nemuri Chandramma and his younger brother Nemuri Sathaiah Goud. Nemuri chandramma was an illiterate. She was dominated by Balrajaiah Goud and the first defendant and she became the tool in their hands. In 1969, Balrajaiah Goud and the first defendant made Nemuri chandramma to execute a release deed purporting to release all her rights in the properties held by her jointly with defendant no. l in favour of the defendant No. l. The said release deed contains false recitals that smt. Chandramma had only a life interest in the properties. She is absolute owner of half of the properties. Therefore, the release deed is vitiated by fraud, undue influence and coercion exercised by the defendant no. l and her husband Balrajaiah Goud. Nemuri Chandramma suffered in the hands of Balrajaiah Goud and his family members. Therefore, she left his house in 1979 and came to live with her younger son sathaiah Goud at Secunderabad, being unable to bear with the ill-treatment meted out to her. When Nemuri Chandramma was living at Lothukunta under the control of Nemuri Balarajaiah Goud and his sons, the second defendant filed O. S. No. 927 of 1977 on the file of the III Additional Judge, city Civil Court, Secunderabad against his brothers, father, first defendant, his stepmother Kausalya and grandmother nemuri Chandramma for partition claiming that the properties mentioned therein are joint family properties. In course of the legal proceedings, they obtained thumb impressions of Nemuri Chandramma on a written statement, vakalat and other documents and papers without explaining to her the contents of those documents. During the pendency of the suit, Nemuri balrajaiah Goud died and after his death the defendant No. 2 and his brothers and mother ultimately came to a compromise to which they purported to divide the properties among themselves without concurrence of nemuri Chandramma. The plaintiffs come to know that after Nemuri Chandramma leaving the house at Lothukunta and lived with her younger son Sathaiah Goud at secunderabad, defendant No. 2 withdrew o. S. No. 927 of 1977 from the file of the III additional Judge, City Civil Court, secunderabad. The compromise between the parties to the suit purporting division of properties do not in any way affect the rights of Nemuri Chandramma in the properties which were owned by her and bequeathed to plaintiffs. Late Chandramma had great love and affection for the plaintiffs and desired that she should make provision for them as the first defendant secured half share from late Saya Goud, therefore, she decided to bequeath her half share of movable and immovable properties got jointly from her husband and self-acquired properties and in furtherance of the said wish, Chandramma executed registered Will on 28. 9. 1979 in a sound disposing state of mind bequeathing her half share in all the movable and immovable properties to the plaintiffs to be enjoyed by them as absolute owners after her death. Nemuri chandramma subsequently died in the house of Nemuri Sathiah Goud, her younger son, at Maruthi Veedhi, Market street, Secunderabad on 23. 4. 1984. As the defendants 1 to 6 are claiming to be in possession of the plaint schedule properties, they were also impleaded in the suit for partition and separate possession of the half share in the plaint schedule properties. Plaintiffs gave notice to the defendant no. l requesting her to effect amicable partition of all the plaint schedule properties to avoid unpleasantness of unnecessary legal proceedings and as there was no reply to the notice, plaintiff also got issued a lawyer's notice on 9th July, 1984. To the said notice also the plaintiff did not receive any reply, despite service of the notice on 12. 7. 1984. The second defendant sent a notice on 8. 8. 1984 denying the right of the plaintiffs to the plaint schedule properties contending that having executed the release deed, Nemuri Chandramma no longer has any right in the properties possessed by the first defendant. Hence, the suit for partition, possession and mesne profits.

(3.) THE first defendant filed a written statement with the following averments in brief: the averments of the plaint are not true and plaintiffs are put to strict proof of them. The relationship of the parties is not disputed. Late Saya Goud bequeathed his properties jointly to the first defendant and his wife Nemuri Chandramma and died in the year 1956. After his death, all the properties devolved on his wife Chandramma and the first defendant. They came into joint possession and enjoyment of the properties covered by the Will. They became the absolute owners of the lands as mentioned in the Will executed by late Saya Goud. Thereafter, Nemuri Chandramma and the first defendant purchased agricultural lands in Sy. Nos. 284, 285, 290, 291, 292, 293 and 602 situated at Lothukunta Village. Thereafter, late Chandramma executed a release deed in favour of the defendant no. l, as such the defendant No. l has been in continuous possession and enjoyment of the lands as absolute owner. Late Balrajaiah goud died in 1956. No influence was used for executing release deed by Chandramma. The Will executed by late Saya Goud clearly shows that Nemuri Chandramma had only life interest in the properties and thereafter all the rights in her favour have been relinquished in favour of the first defendant. Release deed executed by nemuri Chandramma contains false recitals. Nemuri Chandramma never stayed at maruthi Street, Secunderabad, nor there was any occasion for her to go to stay at the house of Sathaiah Goud permanently. It is a fact that the defendant No. 2 filed the suit covered by O. S. No. 927 of 1977. In the said suit Nemuri Chandramma filed a written statement along with other papers. The contents of the written statement and other documents were explained to chandramma and she voluntarily signed on them after understanding and admitting the contents as correct. Nemuri Chandramma has no right in the properties to bequeath the same in favour of plaintiffs. There was no occasion for late Chandramma to bequeath her half share in the movable and immovable properties to plaintiffs with free will. The Will dated 28. 9. 1979 said to be executed by late Chandramma is forged one brought into existence by plaintiffs for the purpose of this suit. Nemuri chandramma never raised any objection during her lifetime though she lived for more than 15 years after the execution of the release deed and before execution of the Will dated 28. 9. 1979 and she never claimed any of the properties. Nemuri chandramma never disclosed the execution of the Will dated 28. 9. 1979 to anybody as well as plaintiffs despite knowing the fact that the suit is filed against her and others. The Will alleged to be executed by chandramma on 28. 9. 1979 was brought into existence after the death of Nemuri chandramma by forging her thumb impression. Late Chandramma had no right, title or interest in the plaint schedule properties as she relinquished all her rights in the properties in favour of the first defendant, as such, the plaintiffs cannot derive any right by virtue of the alleged Will dated 28. 9. 1979. On receipt of the notice dated 18. 6. 1984 and 9. 7. 1984, they orally replied to plaintiffs stating that they have no manner of right and title to claim partition and separate possession of the plaint schedule properties, therefore, the defendants gave no reply. All the plaint schedule properties were partitioned by metes and bounds among the family members and as the suit properties are the exclusive properties of the defendants, they will not come under the category of joint family properties. Late Nemuri Chandramma was aged about 81 years and not in a sound disposing state of mind at the time of execution of the Will dated 28. 9. 1979. The Will alleged to be executed by late Chandramma is neither valid nor binding on the defendants and others. On the other hand, the release deed executed by late Chandramma is binding on the plaintiffs and other family members. Late Chandramma never exercised any rights over the properties in any manner, though the lands were held, possessed and enjoyed by the first defendant and her family after the execution of the release deed, since she relinquished all her rights. The first defendant improved the properties at huge cost and developed the same. In 1979, late Balrajaiah Goud was admitted in the Gandhi Hospital and chandramma wanted to stay very close to him out of her affection and as house of the Sathaiah Goud is very near to the hospital, Chandramma stayed for a short time in his house. The plaint schedule property is belonging to the first defendant and other defendants and they have been in possession and enjoyment of the same as absolute owners and possessors to the exclusion of all others from a long time and nobody claimed any right, title or interest in the land. The suit is bad for mis-joinder of parties, therefore, the suit is liable to be dismissed.