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IN THE COURT OF THE IV ADDL. DISTRICT JUDGE:: NELLORE

Tuesday, this the 4th day of April 2017
Present::CH. RAMACHANDRA MURTHY,
IV Addl. District Judge,
Nellore.
A.S.No.16/2016
Naidu Sreenivasulu Reddy
son of late Ramana Reddy, Hindu, aged
1. ..... Appellant
about 55 years, property holder and
residing at Mulapet, Nellore.
Vs.
1. Naidu Vidyavathi
wife of late Gopala Reddy,

2. Naidu Anil Kumar Reddy

3. Naidu Himabindu
2nd and 3rd respondents are son and
daughter of late Gopala Reddy. All are
Hindus, property holders, they are
aged about 58, 34 and 30 years
respectively, residing at 25/3/1694,
Ramachandra Mission, Gowath Nagar,
Podalakur Road, Nellore.

Bijjam Chinna Malakonda Reddy

4. son of Konda Reddy, Hindu, aged
about 50 years, residing at
Buchireddipalem, Nellore District.

Shaik Khader Vali

5. son of Ramthu Saheb, Muslim, aged
about 64 years, and residing at 7/1080,
Woodhouse Sangham, Stonehousepet,
Nellore.

….. Respondents
APPEAL PREFERRED UNDER ORDER 41 RULE 1 OF CPC ON BEHALF OF
THE THE APPELLANT AGAINST THE DECREE AND JUDGMENT DATED
16.11.2015 IN OS NO.330/2007 ON THE FILE OF Ist ADDITIONAL SENIOR
CIVIL JUDGE, NELLORE.
OS NO.330/2007

1. Naidu Srinivasulu Reddy ..... Plaintiff

Vs.
1. Naidu Vidyavathi
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2. Naidu Anil Kumar Reddy

3. Naidu Himabindu

4. Bijjam China Malakonda Reddy

5. Shaik Khader Vali

….. Defendants

This appeal coming on 7.3.2017 for final hearing before me in the

presence of Sri D.Phani Ratnam advocate for Appellant and of Sri Akula
Venkateswarlu advocate for respondents 1 to 3 and of Sri S.V.M.K.V.Prasad Rao
advocate for respondents 4 and 5 and the matter having stood over for
consideration till this day, this Court made the following-

JUDGMENT
1. Appellant is the plaintiff in OS 330/2007 on the file of learned Ist

Additional Senior Civil Judge, Nellore, preferred the present appeal against the

decree and judgment dated 16.11.2015 against the dismissal of the suit for

declaration and consequential permanent injunction.

2. The brief averments of the plaint are that:

Originally the suit property belonged to one Naidu Ramana Reddy

who purchased the same through a registered sale deed dated 01.08.1949. He

had been in possession and enjoyment of the same till his death. He has three

sons namely, Gopal Reddy, Sreenivasulu Reddy(Plaintiff) and Venka Reddy. The

elder son Gopal Reddy died in the year, 1995. The 1 st defendant is widow, 2nd

defendant is son and 3rd defendant is daughter of deceased Gopal Reddy.

During the life time of Ramana Reddy all the joint family properties were

partitioned among the family members and executed a partition list in the year,

1980. Since then, the respective sharers enjoying their respective shares.

Naidu Ramana Reddy executed a registered will dated 10.01.1994 and

bequeathed his share to his elder son, Gopal Reddy. Again he executed

another will dated 15.01.1994 and bequeathed his share in favour of the

plaintiff since the plaintiff look after his welfare. The other properties of Naidu
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Ramana Reddy were partitioned among his family members by executing a

registered partition deed dated 17.05.2006. The plaintiff has been in

possession and enjoyment over the suit property in pursuance of the will dated

15.01.1994. Defendants are nothing to do with the suit property and they are

trying to interfere with the peaceful possession of the plaintiff over the suit

property without having any manner of right. Hence, the suit.

3. 2nd defendant filed written statement and same was adopted by

1st and 3rd defendants. They denied the avernments in the plaint. They further

contends that Naidu Ramana Reddy never executed will dated 15.01.1994. The

suit property was bequeathed to Naidu Gopal Reddy through will dated

10.01.1994 and that defendants 1 to 3 offered to sell away the suit property in

favour of D4 and D5. Accordingly, they sold away the same to D4 and D5

through a registered sale cum general power of attorney dated 24.05.2007. D4

and D5 have been in possession and enjoyment over the suit property. The will

dated 15.01.1994 is not true, valid and binding on the defendants. It is a

fabricated document. Therefore, the defendants request to dismiss the suit

with costs.

4. D4 and D5 filed common written statement contending that they

purchased the suit property from Defendants 1 to 3 and the property was

delivered possession to them and that they are bonofide purchasers for

valuable consideration. Therefore, they request to dismiss the suit with costs.

5 On the above pleadings the following issues are framed by the

trial court.

1. Whether the will dated 15.01.1994 is true and last testament of

Naidu Ramana Reddy ?

2. Whether Defendants 4 and 5 are bonofide purchasers of plaint

schedule property for valuable consideration under sale deed dated
25.04.2007?

3. Whether the plaintiff is entitled for declaration of his title to suit

property and for relief of injunction?
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4. To what relief?
6. On behalf of plaintiff PW1 to 3 were examined and Ex.A1 and A2

were marked. On behalf of defendants DW1 to 5 were examined and Ex.B1 and

B2 were marked.

7. After hearing both sides and an appreciation of oral and

documentary evidence the learned Senior Civil Judge held that plaintiff failed

to prove the execution of Ex.A1 will and that the said will is not true, valid and

binding on the defendants. By observing the same, the suit of the plaintiff for

declaration of title and permanent injunction was dismissed with costs.

8. Aggrieved by the said decree and judgment, the plaintiff preferred the

present appeal.

(i) In the grounds of appeal it is contended that

1. :- The trial court failed to appreciate the evidence

of PW1 to 3.
2. :- The court below failed to frame issue on the
validity of Ex.B2 will.
3. :- The court below ought to have held that the
father of the plaintiff executed Ex.A1 and that
the plaintiff has been in possession and
enjoyment over the suit propery.

Therefore, appellant requested to allow the appeal and set aside the said

decree and judgment and consequently decree the suit for declaration of title

and for permanent injunction as prayed for.

9. Heard both sides and perused relevant records.

10. Now the point for consideration in the present appeal is:

1. Whether Ex.A1 will dated 15.01.1994 is true, valid and

binding on the defendants?
2. Whether the plaintiff is entitled to declaration of title
and permanent injunction as prayed for?
3. Whether the decree and judgment by the learned Ist
Additional Senior Civil Judge in OS 330/2007 dated
16.11.2015 are liable to be set aside?
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POINTS

1. Whether Ex.A1 will dated 15.01.1994 is true, valid and

binding on the defendants?
2. Whether the plaintiff is entitled to declaration of title
and permanent injunction as prayed for?
3. Whether the decree and judgment by the learned Ist
Additional Senior Civil Judge in OS 330/2007 dated
16.11.2015 are liable to be set aside?

They are interrelated and I deal with them together.

11. It is not in dispute that Naidu Ramana Reddy is husband of one

Krishnavenamma. They have three sons namely Gopal Reddy, Sreenivasulu

Reddy (Plaintiff) and Venka Reddy. The elder son Gopal Reddy died in the year,

1995, leaving behind him, his wife 1st defendant, son 2nd defendant and

daughter 3rd defendant. It is not in dispute that Naidu Ramana Reddy

purchased the suit property through registered sale deed dated 01.08.1949. It

is evident from Ex.A2 sale deed. It is also not in dispute that there was partition

of properties between the plaintiff and D1 to D3 who are legal heirs of

deceased Gopal Reddy and Naidu Venka Reddy through a registered partition

deed dated 17.05.2006. It is also not in dispute that the suit property is not the

subject matter of the said partition deed.

12. It is also not in dispute that Naidu Ramana Reddy died on

28.01.1994. It is also not in dispute that defendants no.1 to 3 sold away the suit

property in favour of the D4 and D5 through a registered agreement of sale

cum General Power of Attorney dated 24.05.2007.

13. The main contention of the plaintiff is that his father Ramana

Reddy executed Ex.A1 will while he was sound and disposing state of mind in

the presence of scribe and attestors and bequeathed the suit property in

favour of plaintiff and the plaintiff has been in possession and enjoyment over

the suit property and that the defendants are nothing to do with the same.

14. The defendants contends that Ex.A1 will is not true, valid and

binding on the defendants and the same is a fabricated document and that D4
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and D5 have been in possession and enjoyment over the suit property, since the

date of purchase and that plaintiff is nothing to do with the suit property.

15. The plaintiff examined as PW-1. He deposed that his father executed

Ex.A-1 Will in a sound and disposing state of mind, bequeathed suit property in

his favour. He denied a suggestion that his father was not in sound and

disposing state of mind and that his father never executed Ex.A-1 Will and it is a

fabricated document. Admittedly, Ex.A-2 is Registered Sale Deed stands in the

name of Naidu Ramana Reddy, father of the plaintiff. Except Ex.A-1 and Ex.A-2,

the plaintiff did not choose to produce any record to prove his possession over

the suit property since the date of death of his father.

16. First defendant examined as DW-1. She denied the execution of Ex.A-1

Will by her father-ind-law. Her husband died in the year 1996. She denied a

suggestion that her father-in-law executed Ex.A-1 Will and that the plaintiff

has been in possession and enjoyment over the suit property and D-4 and D-5

are nothing to do with the suit property and sale deed in favour of D-4 and D-5

is not valid and binding on the plaintiff.

17. Fifth defendant examined as DW-4. He deposed that he purchased the

suit property from D-1 to D-3 through Agreement of Sale Cum General Power

of Attorney in Ex.B-3.

18. Dw-2, DW-3 and DW-5 also supported the version of DW-1. DW-5

deposed that he entered into agreement and executed Registered Exchange

Deed with regard to land on the Eastern and Northern side corners of the suit

property. The Exchange Deed was executed on 15.3.2008. D-4 and D-5 have

been in possession and enjoyment over the suit proprty. He denied a

suggestion that D-4 and D-5 have no right to execute Exchange Deed under

Ex.B-4 and that the suit property has been in possession and enjoyment of the

plaintiff. Nothing has been elicited from the cross-examination of DW-2 to DW-

5 to disprove the evidence of DW-1.

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19. The learned advocate for the defendants argued that the burden is

heavily lies on the plaintiff to prove the execution of Ex.A-1 Will by his father. In

support of their contentions they relied upon decision reported in (Pinnaka

Hanumantha Rao (died) per L.R and another Vs. Garlapati Dhanalakshmi alias

Andalu) 2007 (3) ALT 75, wherein while dealing with the subject on execution

of Will, it was observed that

“the onus on the propounder to

prove the due and valid execution of
the Will can be taken to be discharged
on proof of the essential facts.”

20. Learned advocate for the defendants also relied upon a decision

reported in (Smt Aahalya Bai Vs. Gangapur Sankaraiah and others) 1996 (4)

ALT 922 , wherein it was observed that

“Mere proof of signature of a person on a

document does not amount to actual proving the
execution of the document by that person.”

The principles laid-down in the above decisions are not in disputed.

21. In a decision reported in “K.V. Janardhanam Chetty and another Vs.

K.V. Jaya Kumar and another”, reported in 2016 (5) ALT 609 in para 91 while

dealing with the provisions u/s.68 and 63 of Indian Evidence Act, it was

observed that

“ the propounder took interest in execution of the

Will is one of the factors which should be taken into
consideration for determination of due execution of
the Will. The propounder of the Will must prove: (I)
that the Will was signed by the testator in a sound
and disposing state of mind duly understanding the
nature and effect of disposition and he put his
signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will
is disinterested, satisfactory and sufficient to prove
the sound and disposing state of the testator's mind
and his signature as required by law, courts would be
justified in making a finding in favour of propounder.”
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22. In a decision reported in “Sushila Bai Vasudev Rao Bodhanker (died)

per Lrs Vs. Govind Rao Bodhanker and others”, 2016(3) ALT 228 while

dealing with the case in para 16 it is observed that

“Unless the attestors depose that the

executant had either signed or put his
thumb impression on the Will in their
presence and that they in turn have
attested the same in the presence of
executant, it can not be held that the
execution of the Will is duly proved”.

23. In view of the principles laid down in the decision referred to above and

as per the provisions u/s.63 and 68 of Indian Evidence Act, plaintiff has to

examine one of the attestors of Ex.A-1 Will to prove that Naidu Ramana Reddy

executed the Ex.A1 Will in a sound and disposing state of mind.

24. In order to prove the execution of the Will, the plaintiff examined

attestors of Ex.A-1 Will as PW-2 and PW-3. PW-2 during his chief-examination

deposed that

“Naidu Ramana Reddy executed a Will on 15.4.1994 bequeathing the

landed property in favour of Naidu Srinivasulu Reddy. On e Subbaramaiah
scribed the said Will and one P.Chakrpani and I are attestors of Will. The entire
transaction took place at Brahmana Street, Mulapet, Nellore, where the said
Ramana Reddy was residing. I know the contents of the said Will.”

(I) During his cross-examination he deposed that he went to the house of

the plaintiff on the date of execution of Ex.A-1 by taking some sweets on the
eve of festival. As per his evidence, he started from the village
Chennarayunipalem at 4-00 A.M., and reached the house of the plaintiff at 6.30
A.M. Ex.A-1 was executed between 9-00 A.M., and 10-00 A.M.

(ii) He did not depose any special reasons to go to the house of the
plaintiff on that day at 6.30 A.M. The explanation offered by him that he went
there on the eve of festival, cannot be accepted. No prudent man will leave his
family on the date of festival and woke up at 4-00 A.M and go to his relatives
house. According to him, plainitff is son-in-law of his wife’s elder sister. He is
not closely related to the plaintiff. PW-2 denied a suggestion that Ex.A-1 is a
fabricated document.

25. PW-3, who is another attestor deposed in his chief-examination that

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“Naidu Ramana Reddy executed a Will on 15.4.1994 bequeathing the

landed property in favour of Naidu Srinivasulu Reddy. One Subbaramaiah
scribed the said Will and one P.Chakrpani and I are attestors of Will. The entire
transaction took place at Brahmana Street, Mulapet, Nellore, where the said
Ramana Reddy was residing. I know the contents of the said Will.”

26. As per his evidence he is friend of the plaintiff. He also denied a

suggestion that Ex.A-1 is a fabricated document. On perusal of evidence of PW-

2 and PW-3 it is clear that they nowhere deposed in their evidence that the

testator Ramana Reddy saw the attesting of the Will by them and in turn they

saw Ramana Reddy signing on Ex.A-1 Will. They simply deposed that Ramana

Reddy executed Will dated 15.1.1994. As per the principles laid-down in the

decisions referred to above, Unless the attestors depose that the executant

had either signed or put his thumb impression on the Will in their presence and

that they in turn have attested the same in the presence of executant, it can

not be held that the execution of the Will is duly proved.

27. As per evidence of PW-1 and DW-1, Ramana Reddy died on 28.1.1994. On

the other hand, Ex.A-1 Will said to be executed on 15.1.1994. PW-1 to PW-3

nowhere specifically deposed in their evidence that Naidu Ramana Reddy was

in sound and disposing state of mind on the date of Ex.A-1. The plaintiff did

not explain the reason for the death of his father Ramana Reddy within short

time from the date of Ex.A-1.

28. As per evidence of PW-1 and DW-1, Naidu Ramana Reddy executed a

Registered Will on 10.1.1994 in Ex.B-1. Prior to that also, he executed another

Registered Will on 18.8.1993. From the evidence on record, it is clear that Naidu

Ramana Reddy was in habit of executing Registered Wills during his lifetime.

Admittedly, Ex.A-1 is an Unregistered Will. No proper explanation was offered

by the plaintiff as to why his father executed an Unregistered Will though his

father was in habit of executing Registered Wills only. Taking into

consideration of evidence on record, it is clear that the evidence of PW-2 and

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PW-3, who are said to be attestors of Ex.A-1 Will, cannot be taken into

consideration as they did not depose the execution of the Will in accordance

with the provisions of Section 63 and 68 of Indian Evidence Act. The learned

Senior Civil judge has rightly appreciated the evidence on record and came to

conclusion that the plaintiff failed to prove execution of EX.A-1 will. The said

finding is valid and justified.

29. The learned advocate for the plaintiff argued that It is for the

defendants to prove that the suit property has been in possession and

enjoyment of defendants 4 and 5 and they have to prove execution of Ex.B-1

Will and that no specific issue was framed regarding the validity of Ex.B-1 Will.

The learned advocate for the defendants argued that in a suit for declaration of

title, the plaintiff must succeed in establishing his title over the property and

he cannot succeed on the weakness of defendant’s case.

30. In support of their contentions they relied upon decisions reported in

K.Venkata Subba Reddy Vs. Bairagi Ramaiah (died)
his L.Rs & Others 1999 (1) the Law Summary Page
737 (AP)

(Margadarsini Educational Society Vs.

P.Subhashan and another) 2009 (3) ALD 655

31. In the above decisions after following the decisions reported in

Morn Mar Basselios Catholicos Vs. Thukalan

Paulo Avira and others AIR 1959 SC 31,

Chakichdrlaadi Lakshmamma Vs. Atmakur Rama

Rao and others (AIR 1973 AP 149 AP (DB) ,

it was held that the plaintiff must succeed in

establishin g his title in a suit for declaration and
he cannot succeed on the weakness on the
defendant’s case.

32. In view of the principles laid down in the decisions referred to above,

the plaintiff can succeed on the strength of his own case and that he cannot
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get a decree for declaration over immovable property on the weakness of the

defendant’s case. Therefore, the plaintiff is not entitled to declaration of title

over the suit property in pursuance of Ex.A-1 Will.

33. As argued by the learned advocate for defendants the plaintiff except

Ex.A-1 Will, no other documentary evidence is produced to prove his

continuous possession over the suit property right form the year 1994 (since

the date of death of his father Ramana Reddy). He did not explain as to how he

exercised his rights over the suit property right from the date of death of his

father, Ramana Reddy. The evidence of Pw-2 and PW-3 is no way helpful to

prove his possession over the suit property. Admittedly, no specific issue

regarding validity of Ex.B-1 Will was framed. On the other hand, the plaintiff is

not specifically disputing the execution of Ex.B-1 Will.

34. DW-2 deposed that on 16.1.1994 Naidu Ramana Reddy executed Ex.B-2

Additional Annexure Will for Ex.B-1 Will. Naidu Ramana Reddy explained the

Will contents and the same was reduced to writing by Parlapalli Balakrishna

Reddy and the same was readover to them and the same was accepted by

Ramana Reddy in their presence. He attested Ex.B-2 additional Annexure. He

denied a suggestion that they got fabricated Ex.B-2.

35. DW-3 also deposed evidence as deposed by DW-2 with regard to Ex.B-2

Annexure. He also denied a suggestion that they fabricated Ex.B-2. Admittedly,

the defendants did not choose to examine the attestors of Ex.B-1 Will. As

stated above, as per the principles laid down in the decision reported above,

the plaintiff cannot succeed on the weakness of the defendant’s case. Even the

defendants failed to prove the execution of Ex.B-1 Will, the plaintiff will not

get right and title over the suit property in pursuance of Ex.B-1 Will.

36. In the circumstances of the case and for the above reasons, the plaintiff

failed to prove his possession over the suit property. The learned Senior Civil

Judge has rightly appreciated evidence on record and rightly dismissed the suit
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with costs. I do not find any ground to disturb the finding recorded by the

Court below. The said finding is valid and justified and the same is liable to be

confirmed by dismissing the appeal. Accordingly, these points are answered.

37. In the result, the appeal preferred by the appellant/plaintiff Naidu

Sreenivasulu Reddy, son of late Ramana Reddy against the decree and

judgment in O.S.No.330/2007 on the file of I Additional Senior Civil Judge,

Nellore dated 16.11.2015 is hereby dismissed with costs by confirming the said

decree and judgment.

Typed on my direct dictation by the typist, corrected and pronounced by

me in the open Court on this the 4th day of April 2017.

IV ADDITIONAL DISTRICT JUDGE,

NELLORE.

APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL

IV ADDITIONAL DISTRICT JUDGE,

NELLORE.