MUPPAVARAPU CHOWDARY AND LEELA KRISHNA PRASAD TRUST v. MUPPAVARARU DEVANADH CHOWDARY

(per Hon’ble Sri Justice R. Raghunandan Rao) The dispute, in all these cases, is in relation to the estate of late Dr.M.Leela Rama Krishna Prasad (herein after referred to as Dr.Prasad). Dr.Prasad, after completion of his medical course, emigrated to the United States of America and continued his practice, as a Doctor, in the United States of America. He was a resident of the State of Illinois. After divorcing his first wife, Dr. Prasad married Smt. Padmaja, on 28.12.1992. Dr. Prasad was diagnosed with Cancer and after treatment for some months, passed away on

19.4.1999 in Henry Medical Center, Stock Bridge, Georgia.

Dr. Prasad had executed an unregistered power of attorney, in favour of his brother Sri M.Hemanth Kumar, on 11.08.1981. Dr.Prasad executed a second power of attorney, in favour of his brother Sri Hemanth Kumar, on 23.12.1992. This power of attorney was registered as document No.3021 of 1992 in the Office of Sub Registrar, Vijayawada.

After being diagnosed with Cancer, Dr.Prasad underwent treatment, including Chemo Therapy. In the course of his illness, he had executed a Will, dated 30.12.1998. This Will is related to the properties of Dr. Prasad, in the United States of America, and the same is accepted by all the parties. 11 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch

Two more Wills, dated 05.04.1999 and 17.04.1999, said to have been executed by Dr. Prasad, have been produced as evidence in this suit. Under these Wills, Dr. Prasad is said to have made arrangements, for devolution of his properties, in India, in favour of some of his family members, with a major part of his properties being constituted into a trust and to be used for the purposes set out in the two wills. These wills were initially produced by Sri Hemanth Kumar, and marked as exhibits, in O.S No.69 of 2002, filed before the XII Additional District Judge, Krishna at Vijayawada. One of the sisters of Dr. Prasad, namely Smt. Nirmala Kumari, has accepted these two Wills and it has been her stand, before this Court, that these two Wills have been executed by Dr. Prasad and the wishes of Dr.Prasad, in constituting a trust for these properties, should be honoured. Sri Hemanth Kumar and the other sisters of Dr. Prasad dispute the Will. Similarly, Smt. Padmaja, the wife of Dr. Prasad, disputes the two Wills.

Smt. Padmaja, claiming that Dr. Prasad had passed away, intestate, in relation to his properties in India, filed O.S. No.69 of 2002, before the XII Additional District Judge, Vijayawada for partition of the properties of Dr. Prasad, between herself and the mother of Dr. Prasad as they were the sole legal heirs, on whom the estate of Dr. Prasad would devolve, in equal shares upon herself and her mother in law, who is the mother of Dr. Prasad.

The above suit was originally filed against the mother of Dr. Prasad and Sri Hemanth Kumar, the younger brother of Dr. Prasad. The 12 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch mother of Dr. Prasad, passed away during the pendency of the suit. Her legal heirs, namely her sons and daughters, were impleaded as defendant Nos.2and 4 to 10. Similarly, the Muppavarapu Chowdary and Leela Rama Krishna Prasad Trust(hereinafter referred to as the Trust), which is the main beneficiary of the two Wills, was impleaded as defendant No.11 and two persons said to be trustees of this trust were impleaded as defendant Nos.12 & 13.

The trial Court, after completion of the trial and after hearing the contentions raised by all the opposing parties, disbelieved the Wills and had allowed the suit, by judgment and preliminary decree, dated 08.04.2013. Aggrieved by this judgment, Sri Hemanth Kumar and other sisters of Dr. Prasad have filed A.S No.645 of 2013 before this Court. Similarly, the Muppavarapu Chowdary and Leela Rama Krishna Prasad Trust filed A.S No.707 of 2014, before this Court, against the same judgment and decree.

While these appeals were pending, Sri Ch.Koteswara Rao and Smt. M. Parvathi had filed O.S No.445& 446 of 2019, respectively, before the Principal Junior Civil Judge, Eluru, for permanent injunctions, restraining Sri Hemanth Kumar from interfering with their possession over certain properties, which are said to have been transferred in their favour, by way of agreements of sale, and also by way of lease agreements. Some of the properties mentioned in the suit, belong to Dr. Prasad. Subsequently, the parties in these suits are said to have arrived at a settlement and the terms of the settlement 13 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch were placed before the Lok Adalat, at Eluru, and awards came to be passed, by the Lok Adalat, on 21.01.2020. Under these awards, some of the properties of Dr.Prasad, which were the subject matter of these suits, were to be transferred to Sri Ch. Koteswara Rao and Smt. Parvathi by Sri Hemanth Kumar.

The trust challenged these two awards, by way of writ petitions vide W.P Nos.3325 and 3807 of 2020. Similarly, Smt. Padmaja challenged the awards, by way of writ petitions vide WP Nos.1538 and 15403 of 2021. The Division Bench of this Court, had granted suspension of the awards, in the writ petitions, filed by the trust. As deeds of sale, vide document Nos.3567 & 3568, dated 14.04.2023, had been executed and registered by Sri Hemanth Kumar in favour of Sri Ch.Koteswara Rao, the trust had filed W.P No.13966 of 2023 challenging the registration of the said deeds of sale. Apart from this, the trust also moved a contempt case vide C.C No.5225 of 2023 against Sri Hemanth Kumar on the ground of violation of the directions of this Court.

In view of the contradictions surrounding the execution of deeds of sale, an enquiry had been initiated under Section 81 of the Registration Act, into the execution and registration of the said deeds of sale. Aggrieved by the initiation of such an enquiry, Sri Ch. Koteswara Rao moved this Court, by way of W.P No.16510 of 2023. Apart from this, both Ch. Koteswara Rao and Smt. M. Parvathi have filed applications to implead themselves in A.S.No.645 of

2013. The applications, filed by Sri Ch. Koteswara Rao, have been numbered 14 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch as I.A.No.1 of 2023 in A.S.No.707 of 2014 and I.A.No.1 of 2023 in A.S.No.645 of 2013. Similarly, the implead petitions, filed by Smt. M. Parvathi, have been numbered as I.A.No.2 of 2023 in A.S.No.707 of 2014 and I.A.No.2 of 2023 in A.S.No.645 of 2013.

Heard Sri M.R.S. Srinivas learned counsel, appearing for the plaintiff, Sri Y.N. Vivekananda learned counsel appearing for defendants 2 and 4 to 10, who are the appellants in A.S.No.645 of 2013 and Sri O. Manohar Reddy, the learned Senior Counsel appearing for the appellant in A.S.No.707 of 2014.

As can be seen from the above facts, all these cases are interconnected and the results of these cases are dependent on each other. Further, all the parties in these cases are, more or less, parties in all the cases. In that view of the matter all these cases are being disposed of, by way of this common order.

The appeals and writ petitions, in the present litigation, can be considered in three parts. PART I :A.S.No. 645 and A.S.No.707 of 2013, dealing with the question of whether the Wills of 5.4.1999 and 17.04.1999 had been executed by Dr. Prasad; whether they have been proved, in accordance with law and whether the property of Dr. Prasad would devolve, according to the Wills, on the Trust or whether the property of Dr. Prasad would devolve on his legal heirs. 15 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch

PART II: The writ petitions filed on the issue of whether the Lok Adalat awards, obtained in Eluru, West Godavari District are valid and whether these awards and subsequent sale deeds would create any right over the property of Dr. Prasad, in favour of Sri Ch. Koteswara Rao and Smt. M. Parvathi. PART III: The interlocutory applications filed in A.S.No. 645 and 707 of 2013, for impleading Sri Ch. Koteswara Rao and Smt. M. Parvathi in A.S.No. 645 and 707 of 2013. PART I : A.S. 645 of 2013 and A.S. No. 707 of 2013

Before going in to the respective contentions of the learned counsel for the petitioner, appearing for the parties before this Court, it would be necessary to review the pleadings raised before the trial Court.

Smt. M. Padmaja, filed O.S.No.69 of 2002, claiming half share in the property and estate of late Dr. Prasad. The plaintiff contended, in the plaint, that Dr. Prasad had been diagnosed with cancer in 1997. His prolonged illness required treatment as an inpatient in the hospital. At that time, the close relatives of Dr. Prasad, living in the United States took undue advantage of the grief and helplessness of Smt. Padmaja and Dr. Prasad and made out that Dr. Prasad had created a trust for his properties, in India. Dr. Prasad was admitted to Henry Medical Centre, Stock Bridge, Georgia on 05.04.1999 and passed away, intestate, on 19.04.1999. During this period, Dr. Prasad, while he was in hospital, was put on a heavy dosage of pain killer drugs due to which, Dr. Prasad was not in a sound state of mind. After completing the 16 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch cremation ceremonies of Dr. Prasad, after his death on 19.07.1999, Smt. Padmaja had come to India on 25.04.1999 for performing the remaining ceremonies for Dr. Prasad. Smt. Padmaja remained in India till the end of January, 2000 and pursued a computer course in Hyderabad. She went back to the United States of America on 02.02.2000 and was able to obtain the benefit of the Will, executed by Dr. Prasad, on 30.12.1998, in relation to the property of Dr. Prasad situated in the United States of America. Smt. Padmaja could obtain the benefits only after initiating litigation in the Circuit Court in Illinois. At that stage, Smt. Padmaja, having come out of the influence of the defendants took up steps to ascertain the properties of Dr. Prasad and to get her rightful share in the said property.

Smt. Padmaja also contended, in the plaint, that her signatures were taken, by Sri Hemanth Kumar, on various typed papers. She was unaware of the contents of these papers and that the defendants were misusing those papers to state that she had accepted reduction of the share of her husband, which devolved on her, in certain firms. She executed a power of attorney in favour of Sri Hemanth Kumar, who was the 2nd defendant, in O.S.No.69 of 2002, to represent her interest in the said firm. Later, having come to know of all the steps being taken by the defendants to deprive her of her rightful share in the property, of Dr. Prasad, she had issued a legal notice, dated 11.01.2002, calling upon Sri Hemanth Kumar to render proper accounts 17 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch to her and also to furnish copies of Wills alleged to have been executed by Dr. Prasad, in relation to the properties in India.

Smt. Padmaja claimed that Dr. Prasad was the owner of six items of immovable property which were set out in Schedule-A of the plaint and that he was a partner having 40% share in M/s. Muppavarapu Chowdary Builders and Real Estate Developers and that she would be entitled to half this share. The said share in the firm, which was also arrayed, as defendant No.3, in the suit, was set out in Schedule-B of the plaint.

Defendants 1, 2 and 6 to 8 filed a common written statement. In this written statement, it was contended that Dr. Prasad had executed two Wills, dated 05.04.1999 and 17.04.1999, relating to his properties situated in India and that a Trust known as “Muppavarapu Chowdary and Leela Rama Krishna Prasad Trust” had been constituted, under these Wills, in relation to these properties, which were to be used for the benefit of the mother of Dr. Prasad and thereafter to be used for various charitable purposes. Smt. Padmaja knowing about the said execution of the two Wills had deliberately ignored these two Wills and had filed the suit as if Dr. Prasad had passed away, intestate, and that she would be entitled to half the property of Dr. Prasad. Further, items 2 and 5, set out in Schedule-A, had already been sold away during the lifetime of Dr. Prasad, in 1980-81 and 1989-90 and consequently were not properties of Dr. Prasad by the time he had passed 18 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch away. A specific statement was also made that items 1, 3, 4 and 6 of Schedule-A were in the possession and management of the Trust.

It may also be noted that the aforesaid recital of the pleadings, does not include all the details of the pleadings and is only a prima facie recital of the pleadings, for the purposes of the present judgment. Smt. Padmaja was examined as P.W.1 and Dr. M. Kishore Babu was examined as P.W.2. Four witnesses were examined on behalf of the defendants including Sri M. Hemanth Kumar as D.W.1 and Dr. Raju Vanapalli, an attestor of the Wills, dated 05.04.1999 and 19.04.1999, as D.W.4. Various facts were deposed by these witnesses and certain other facts also came to light on account of the cross examination of these witnesses. Such facts would be discussed in detail hereinafter. The Trial court disbelieved the two Wills, and held that Smt. Padmaja would be entitled to a half share of the property set out in the Schedules to the suit. Aggrieved by this judgment and decree dated

08.04.2013. Aggrieved by this judgment, Sri Hemanth Kumar and other sisters of Dr.Prasad have filed A.S No.645 of 2013 before this Court. Similarly, the Muppavarapu Chowdary and Leela Rama Krishna Prasad Trust filed A.S No.707 of 2014, before this Court, against the same judgment and decree.

Though the appeals have been filed by the defendants, in the suit, it would be appropriate to first consider the contentions raised, in the present appeal, by the plaintiff. The contentions of Sri M.R.S. Srinivas, the learned counsel appearing for Smt. Padmaja, are that: 19 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch i) The Wills which were said to have been executed in the United States of America, were produced by the defendants, during the course of cross examination of Smt. Padmaja. There is no pleading in the written statement as to how the defendants came to be in possession of the Wills, dated 05.04.1999, and 17.04.1999. The 2nd defendant, in the reply notice sent on his behalf, states that copies of the Will were given by Smt. Padmaja herself to Sri Hemanth Kumar in April, 1999 but Sri Hemanth Kumar was not in possession of the original Will or Wills. In the written statement, there is no mention as to which defendant and when Smt. Padmaja had handed over the original Will. In substance, there is no pleading, recording the manner in which the originals of the Wills, dated 05.04.1999 and 17.04.1999, came to be in the possession of the defendants. Sri Hemanth Kumar, in the course of his cross examination, as D.W.1, had stated that the documents had been handed over by Smt. Padmaja, to the mother of Dr. Prasad, who inturn handed over the same to Sri Hemanth Kumar in the last week of April, 1999. The same cannot be accepted. The statement in the reply notice of 17.01.2002 that he was not in possession of the original Wills clearly contradicts his statement in the cross examination. ii) The Wills, said to have been executed, on 05.04.1999 and

17.04.1999, were not within the knowledge of the plaintiff. However, Sri Hemanth Kumar giving evidence as D.W.1 contended that the Wills were 20 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch handed over by the plaintiff herself. As such, the chain of custody of these Wills is highly suspect and consequently the Wills cannot be looked into. iii) The evidence of D.W.1 would have to be totally eschewed as the said evidence has various discrepancies. The plaintiff, had come into India, after the demise of Dr. Prasad only on 25.04.1999 which can be seen from the entries in the passport of the plaintiff, which has been marked as Ex.A9. However, a deed of reconstitution of a partnership firm, dated 20.04.1999, has been produced by D.W.1 and marked as Ex.B2. This reconstitution deed is said to have been signed by the plaintiff, on 20.04.1999, in Vijayawada, while she was actually in the United States of America.

The manner, in which the share of Dr. Prasad, in the partnership firm M/s Muppavarapu Chowdary Builders & Real Estate Developers, had been handled and given away to persons, who are not entitled to such shares, would also demonstrate the falsity of the case put forward by the defendants in the suit. iv) The further discrepancies and contradictions in the evidence of D.W.1 is that in his cross examination he first states that the suit schedule property had been handed over to the trust in April, 1999.Subsequently he changes his version and says that the property was handed over to the Trust, in December, 1999. The signature of Dr. Prasad, in Ex.A6, which was the Will executed by Dr. Prasad, in relation to the properties in United States of America is totally different to the signature of Dr. Prasad, in the disputed Wills 21 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch Ex.B.18, which is the Will executed on 05.05.1999 as well as Ex.B.19 which was executed on 17.04.1999. v) The Wills in question, are said to have been in the custody of the plaintiff and handed over to the defendants.

The plaintiff had clearly denied possession of the Will or knowledge of the Wills. The defendants have not proved how it was brought to India and who had handed over the Wills to the defendants. There is no cross examination in this regard nor is there any admission by the plaintiff in her cross examination. It is only in the cross examination of D.W.1 that it was stated that the Wills had been given by the plaintiff to the mother of Dr. Prasad, who was arrayed as defendant No.1 in the suit and that no such statement was made either in the written statement filed by the defendants or in the chief examination of D.W.1. In the absence of clear line of custody, the Will cannot be accepted in view of the judgment of the Hon‟ble Supreme Court in Union of India vs. Ibrahim Uddin and Another1. vi) Once custody of the Wills is doubtful, the said Wills cannot be relied upon. Sait Tarajee Khimhanda and Others vs. Yelamarti Satyam Alias Satteyya and Ors.,2 K. Laxmanan vs. Thekkayil Padmini and Ors.3 vii) All the attestors to the Wills have not given evidence recording the execution of the said Wills by Dr. Prasad;