CRP/6103/2009 of Bommidi Adinarayana Vs Bommidi Sundaramma on 31 December 2009

ORDER:

Late Venkata Rao, 1[st] defendant-revision petitioner hereinand the husband of 2[nd] defendant are the brothers and sons of lateNarayana Murthy and Seshamma. Defendants 4 and the wife of5[th] defendant are their daughters. The Respondents 1 to 3 hereinbeing the wife and daughters of late Venkata Rao instituted the suitin O.S.No.1331 of 2001 seeking partition and separationpossession of the suit schedule property. Before institution of thesuit, the plaintiffs got issued a notice for which, a reply notice wasissued by the petitioner-1[st] defendant. Contesting the suit, the petitioner-1[st] defendant filed a written statement, but he has notdisclosed that there was a registered will, dated 5.10.1995executed by his mother late Seshamma bequeathing the suitschedule property in his favour and his brother’s wife-Saraswathi. After closure of the evidence of the plaintiffs, thepetitioner-1[st] defendant filed his affidavit in lieu of chief-examination as D.W.1 along with I.A.No.439 of 2009 to receive thedocument viz. the registered will, dated 5.10.1995 stated to beexecuted by his mother Seshamma. By order, dated 7.10.2009the learned I Additional Junior Civil Judge, Kakinada dismissed theI.A. It is that order which is impugned in the present revision.

Learned counsel for the petitioner strenuously contends thatto establish the fact that the suit schedule property belongs toBommidi Seshamma, the registered will deed, date 5.10.1995executed by her in favour of the petitioner herein has to bereceived in evidence and therefore, the lower Court ought to haveallowed the impugned I.A.

It is not disputed that the suit was filed for partition of thesuit schedule property into five equal shares and for allotment ofone such share to the plaintiffs and to put them in possession ofthe same. The very claim of the plaintiffs is that the suit scheduleproperty belongs to the husband of 1[st] plaintiff. The said suit wasfiled in the year 2001 in which, written statement was filed in theyear 2002. The evidence on the side of the plaintiffs was closedand the petitioner-1[st] defendant filed his affidavit in lieu of chief-examination as D.W.1. At that stage, the impugned I.A. wasfiled. In the affidavit filed in support of the petition, the petitionerstated that his mother executed a registered will deed on5.10.1995 vide document No.366/1996 in sound and disposingstate of mind bequeathing the suit schedule property in his favour and also in favour of his brother’s wife Saraswathi. But, he hasnot stated as to how his mother-Bommidi Seshamma got the suitschedule property and it is not known whether the suit scheduleproperty is a self-acquired property. If the property is of self-acquired property of Bommidi Seshamma, the petitioner need notfile any document to prove his title or possession and he canprove the same by other evidence. Though the 1[st] plaintiffspecifically pleaded that the suit schedule property is owned byher late husband, no suggestion was put in her cross-examinationto the effect that her husband has not left any property to bepartitioned and that the property belongs to Bommidi Seshamma. In the absence of any such suggestion made to the plaintiffs,receiving the alleged will deed, dated 5.10.1995 is of no use. Inthat view of the matter, the impugned order passed by the lowerCourt dismissing the I.A. does not suffer from any illegalitywarranting interference by this Court.

The revision fails and is accordingly dismissed. No orderas to costs.

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A. GOPAL REDDY, J.

DECEMBER 31, 2009Tsr.