THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE JUSTICE G. SRI DEVI
APPEAL SUIT No.700 of 2012
JUDGMENT: (per Hon'ble Justice G.Sridevi)
The present Appeal Suit is filed against the judgment and
decree, dated 04.06.2012 passed in O.S.No.525 of 2007 on the file of
the III-Additional District and Sessions Judge (FTC), Ranga Reddy
District, wherein and whereby, the suit filed by the respondents/
plaintiffs for partition of the plaint schedule properties into two equal shares and allotment of half share to the respondents/plaintiffs and half share to the appellants/defendants, was decreed.
Appellants herein are the defendants and the respondents herein are the plaintiffs before the trial Court. For convenience of reference, the ranks given to the parties in O.S.No.525 of 2007, before the trial Court, will be adopted throughout this judgment.
The plaintiffs herein filed the above suit with the following reliefs:
1) To pass a judgment and decree that the plaintiffs are entitled to half share in the suit schedule A, B & C properties and for partition and separate possession of such half share in the suit schedule properties to 2 ARR, J & GSD, J As_700_2012 the plaintiffs and half share to the defendants in A to C schedule property.
2) A commissioner be appointed to make partition of the suit schedule property and for giving separate possession of plaintiffs' share of the property by metes and bunds.
The facts, in brief, of the plaint are that one late Annasani @ Hanumasani Laxmaiah was the owner of the schedule properties through ancestors by succession and he got two wives namely i.e., 1st plaintiff and Ramulamma, the mother of defendants 1 to 7. The 2nd plaintiff is the son of the 1st plaintiff and the defendants are the children of Ramulamma, who is the second wife of Hanumasani Laxmaiah. The plaint schedule properties are the properties left by Laxmaiah. The plaintiffs made several demands for partition of the plaint schedule properties by metes and bunds, but the defendants did not cooperate for the partition. The plaintiffs submit that they are entitled to half share and the defendants are entitled to half share in the plaint schedule properties. Late Laxmaiah also executed a partition deed, dated 25.06.1989 bequeathing half share to each of the wives and it should be acted upon, but the defendants refused to partition the schedule properties. While the things stood thus, the plaintiffs came to know that the defendants in collusion with the revenue officials got mutated the name of their mother in the revenue records suppressing true facts in respect of 'C' schedule 3 ARR, J & GSD, J As_700_2012 property. It is also submitted that in the pahanies for the years 1995- 96, 1997-98, 1998-99 and 2001-2002, the name of the 1st plaintiff was shown as possessor of 'C' schedule property. The plaintiffs came to know that with an intention to cause loss to the plaintiffs, the defendants are trying to dispose of the plaint schedule properties and as such the plaintiffs got issued legal notice, dated 18.03.2008, but the defendants did not respond to the same. Hence, the plaintiffs filed the above suit.
The 1st defendant filed written statement, which was adopted by the other defendants. In the written statement, the defendants admitted their relationship with the plaintiffs and also admitted that the plaintiffs and defendants are the legal heirs of late Laxmaiah, but they denied that the plaintiffs and the defendants are joint owners of the suit scheduled properties. It is further stated in the written statement that the house bearing No.3-6-30, to an extent of 360 square yards was purchased by the defendants from its original owner in the year 1993 and the house bearing No.3-6-52 admeasuring 144 square yards was given to their mother by late Laxmaiah and the defendants are in possession and enjoyment of the same. It is also stated that during the life time of Laxmaiah, the defendants and plaintiffs have entered into an agreement of sale with M/s. Jana Chaitanya Housing Private Limited on 26.11.1998 in respect of the land in Sy.No.518 admeasuring Ac.1.17 gts.; Sy.No.519 4 ARR, J & GSD, J As_700_2012 admeasuring Ac.1.33 gts. and Sy.No.525 admeasuring Ac.0.17 gts., situated at Budwel Village, Rajendranagar Mandal and the defendants are not willing to sell the entire property. M/s. Jana Chaitanya Housing Private Limited, filed a suit for specific performance and after negotiations it was specifically agreed to execute a sale deed in respect of land in Sy.Nos.518 and 519 leaving 'C' schedule property i.e., Ac.0.17 gts., of land in Sy.No.526. The plaintiffs received the entire sale consideration for the whole extent of the land agreed to sell to M/s. Jana Chaitanya Housing Private Limited and as such, the plaintiffs have no right and title over 'A' to 'C' schedule properties. It is further stated that 'A' to 'C' schedule properties exclusively belonged to the defendants and they got mutated the same in the name of Ramulamma and the pahanies filed by the plaintiffs have no relevancy and the plaintiffs are not entitled to any relief and the document dated 25.06.1989 is a fabricated one and the suit is a speculative one and prayed to dismiss the suit.
On the basis of the aforesaid pleadings, the trial court framed the following issues-
1. Whether the plaint schedule properties are the joint family properties of plaintiffs and defendants?
2. Whether the plaintiffs are entitled to a preliminary decree for partition of 'A', 'B', 'C' schedule properties into two equal shares and for allotment of half share to them and for delivery of possession as prayed for?5
ARR, J & GSD, J As_700_2012
3. To what relief?
During trial, on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A17 were got marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B7 were marked. Ex.A18 was marked during the cross-examination of D.W.1.
The trial Court, on consideration of the rival contentions and also the entire material available on record, decreed the suit. Against the said judgment and decree, the defendants filed the present appeal.
Heard learned Counsel for the appellants/defendants, learned Counsel appearing for the respondents/plaintiffs and perused the record.
Learned Counsel for the appellants/defendants would submit that the trial Court miserably failed to appreciate the documents Exs.B1 to B7 and no reasons were assigned for discarding the same; that the documents Exs.B1, B2 and B7 are sufficient to prove that 'A' schedule property is not at all the joint family property, but purchased independently by defendants and the 'B' schedule property was given to the defendants by their grandmother; that the trial Court miserably failed to frame a specific issue, as per pleadings and evidence of defendants, with regard to H.No.3-6-30 6 ARR, J & GSD, J As_700_2012 (new), 4-13 (old) and also discarded Ex.B7 without assigning any reasons and, hence, the decree is liable to be set aside; that the trial Court came to a wrong conclusion that the suit properties are joint family properties and the plaintiffs are entitled to half share each which is totally contrary to law; that the plaintiffs created, forged/concocted a false story of partition deed dated 25.06.1989 without examining any witnesses to prove the same and no partition is disclosed in their earlier suit O.S.NO.288 of 1990, which was dismissed, and hence the present suit itself is not at all maintainable; that the trial Court failed to appreciate that earlier the plaintiffs got issued a legal notice dated 16.04.1990 without mentioning partition deed, dated 25.06.1989 and filed O.S.No.288 of 1990, which was dismissed on 02.08.1995, and hence the present suit is not at all maintainable on facts and law; that the trial Court miserably failed to prove the partition deed dated 25.06.1989, joint possession of undivided Hindu family etc., and hence the suit is liable to be dismissed; that the trial Court cannot unsettle the already settled issues as stated; that the trial Court ought to have rejected oral evidence without pleadings of plaintiffs and prayed to allow the appeal suit. In support of his contentions, he relied upon the following judgments:-
1. State of M.P. v. Uma Devi1
2. Rangammal v. Kuppu Swami2 1 (2015) 8 SCC 672 7 ARR, J & GSD, J As_700_2012
3. Smt. Yamunabai Anantrao Adhav v. Anantrao Shivaram3
4. B. Chandrakala v. A. Anuradha4
5. Lakkoji Mohan Rao v. Lakkoji Vishwanatham5
6. Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust v. Chandran6
7. State of Uttarakhand v. Mandi Sri Laxman Maharaj7
8. Phool Patti v. Ramsingh8 Learned Counsel appearing for the respondents/plaintiffs would submit that the 1st plaintiff being the first wife of Laxmaiah, and the 2nd plaintiff being the son of the 1st plaintiff and Laxmaiah and they being the legal heirs of A. Laxmaiah, who died intestate, are entitled to half share in the schedule property, which was left by the deceased A.Laxmaiah. He further submits that when the plaintiffs demanded for partition of the suit schedule property, the defendants did not cooperate for the same and as such, the plaintiffs filed the suit and after considering the oral and documentary evidence adduced on behalf of both the parties, the trial Court has rightly decreed the suit and that there are no merits in the appeal.
In support of his contention, learned Counsel for the respondents relied upon the following judgments of the Apex Court as well as this Court.
2 (2011) 12 SCC 220 3 AIR 1988 SC 644 4 (2015) 15 ALT 383 DB 5 (2012) 3 ALD 327 6 (2017) 3 SCC 702 7 (2017) 9 SCC 579 8 (2015) 3 SCC 164 8 ARR, J & GSD, J As_700_2012
1. Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal9
2. Toyla etc. V. State of M.P. and another etc.10
3. The Greater Bombay Cooperative Bank Ltd., v. Mr. Nagraj Ganeshmal Jain and others11
4. Akkireddi Narayanamma and another v. Adhikari Appalanaidu and another12 The case of the plaintiffs is that they filed the aforesaid suit for partition of schedule properties stating that the 1st plaintiff is the first wife and the 2nd plaintiff is the son through 1st wife and the defendants are the sons of late A.Laxmaiah, through his second wife Ramulamma and when the plaintiffs demanded for partition of the suit schedule properties, the defendants did not respond and as such they filed the suit. The case of the defendants is that the suit schedule properties are their exclusive properties and the plaintiffs are not entitled to any share. A perusal of the evidence of D.W.1 would show that his father has got two wives and the 1st plaintiff is the 1st wife and the 2nd plaintiff is the son of the 1st plaintiff and his father and that all the defendants are the legal heirs of his father through second wife Ramulamma. He admitted that the lands in Sy.Nos.518, 519 and 526 are their ancestral property. He further admitted that when his father was alive, they sold away Ac.3-27 guntas of land to Jana Chaitanya Housing Company under an 9 1992 Law Suit (SC) 190 10 2014 Law Suit (SC) 701 11 Civil Appeal No.009777-009778 of 2017, dt. 26.07.2017 12 (2011) 2 ALD 71 9 ARR, J & GSD, J As_700_2012 agreement of sale and the plaintiffs are parties along with them. He further admitted that they executed sale deed in respect of Sy.Nos.518 and 519 in favour of Janachaitanya Housing Company and received consideration for two survey numbers excluding 'C' schedule property. He further admitted that they have not filed any document to show that the plaintiffs received sale consideration from Janachaitanya Housing Society in respect of 'C' schedule property and they did not pay any amount to the plaintiffs for 'C' schedule property. He also admitted that they did not file any document to show that 'A' schedule property was purchased by himself and D-3 and 'B' schedule property was purchased by his father. He further admitted that his father did not execute any will or settlement bequeathing 'B' schedule property to them.
D.W.2, who is the third party to the suit, also admitted the relationship of the plaintiffs and defendants with late Laxmaiah. He also admitted that his maternal grandmother by name Chittamma died intestate and she did not execute any will deed. He further admitted that he sold the house bearing No.1-13 to the 1st defendant and the document dated 30.12.1993 does not reveal as to how he acquired that property.
Learned Counsel for the respondents/plaintiffs, while answering to the contentions raised by the learned Counsel for the appellants/defendants, vehemently argued that the appellants have 10 ARR, J & GSD, J As_700_2012 brought out only those contentions which are in their favour, but the major part of the cross-examination, which demolishes their own case, has not been brought to the notice of this Court. He further argued that the claim of the defendants that by virtue of the documents Exs.B1 and B7, they became the owners of the suit schedule 'A' property, is contrary to the evidence on record and further from the document-Ex.B1, which is a registered General Power of Attorney, dated 30.12.1993, the defendants cannot claim right or ownership over the suit schedule 'A' property. Ex.B7, which is an un-registered agreement of sale without possession, does not confer title to the alleged purchase made by the defendants over the suit schedule 'A' property. Moreover, according to the learned Counsel for the respondents, the description of the property in the aforesaid two documents, through which the defendants claimed do not match with the properties as mentioned in the plaint 'A' schedule property. Thus, the claim of the defendants that they became the owners of the suit schedule 'A' property by virtue of Exs.B1 and B7 is not correct and accordingly, the learned Court below has rightly come to the conclusion that 'A' to 'C' schedule properties are the joint properties of the parties and are liable for partition. Learned Counsel for the respondents/plaintiffs has drawn our attention to the own admission of D.W.1 during his cross-examination, which is extracted hereunder:- 11
ARR, J & GSD, J As_700_2012 "We have not filed any document to show that 'A' schedule property was purchased by myself and D-3, 'B' schedule property was purchased by my father. My father did not execute any will or settlement bequeathing 'B' schedule property to us."
Thus, it is submitted by the learned Counsel for the respondents/plaintiffs that this admission of D.W.1 will prove the case of the plaintiffs that 'A' to 'C' schedule properties are the joint properties of the parties to the suit and hence they are liable for partition amongst the parties. In order to support of the above contentions, learned Counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court in Civil Appeal No.9777 and 9778 of 2017 (The Greater Bombay Cooperative Bank Limited v. Mr. Nagraj Ganeshmal Jain and others), wherein it was held that "immovable property can be transferred only by a registered document. There can be no transfer of any right, title or interest of any immovable property except by way of a registered document. "
In Suraj Lamp and Industries (Pvt.) Limited v. State of Haryana13, it was categorically held by the Apex Court as under:
"18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.13
(2012) 1 SCC 656 12 ARR, J & GSD, J As_700_2012
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Section 54 and 55 of T.P. Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of T.P. Act). According to the T.P. Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the T.P. Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
24. We, therefore, reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of the 'G.P.A. sales' or 'SA/GPA/will transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53-A of the T.P. Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records."
Thus, relying upon the aforesaid case laws, learned Counsel for the respondents/plaintiffs vehemently contended that the claim of the defendants that they have proved purchase of suit schedule 'A' property from D.W.2 under Ex.B1 and Ex.B7 falsifies to their 13 ARR, J & GSD, J As_700_2012 claim as the said documents are not admissible under law, which cannot confer any title to the defendants, rather the plaintiffs through the document Ex.A6, dated 25.06.1989, though titled as partition deed, executed by the deceased Laxmaiah during his life time, clearly establishes the fact that, it was the wish/will of their father Laxmaiah to bequeath/settle his properties among his two wives and accordingly, it was reduced into writing under Ex.A6. Thus, the claim of the defendants that none of the witnesses examined out of 15 witnesses to prove Ex.A6/Partitition deed is incorrect. The fact remains that one of the attesters to Ex.A6 viz., S.K.Habeeb was examined as P.W.2 in front of whom Ex.A6 was scribed and the executant has signed in his presence. It is also contended by the learned Counsel for the respondents/plaintiffs that Ex.A6 does not require any stamp duty as the said document is a will/wish of the executant, but not a partition deed and hence the contention of the appellants/defendants that Ex.A6 being the partition deed requires stamp duty and as it was not duly stamped is not admissible in evidence, is not correct. In this connection, learned Counsel for the respondents/plaintiffs relied upon the judgment of the Apex Court reported in Tamboli Ramlal Motilal v. Ganachi Chimalal Keshavalal (9 supra), wherein the Hon'ble Apex Court at paragraph No.16 of the judgment held that "it is also settled law that nomenclature of the document is hardly conclusive and 14 ARR, J & GSD, J As_700_2012 much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered." Hence, it was contended that the trial Court has rightly exhibited the said document and has given the finding of fact which cannot be agitated by the appellants/defendants at this stage.
With regard to 'C' schedule property, learned Counsel for the respondents/plaintiffs has drawn our attention to the cross- examination of D.W.1 to show that the admissions of D.W.1 demolishes the whole case of the appellants/defendants that the respondents/plaintiffs are not entitled for partition of 'C' schedule property. The relevant portion of the cross-examination of D.W.1 is extracted hereunder:-
"We executed the sale deed in respect of Sy.No.518 and 519 in favour of Jana Chaitanya Housing Company. Plaintiffs did not join as parties to the sale deed in favour of Jana Chaitanya Housing Company. We have not filed any document to show that the plaintiffs received the sale consideration from Jana Chaitanya Housing Company in respect of 'C' schedule property. We did not pay any amount to the plaintiffs for 'C' schedule property. "
Thus, relying upon the aforesaid admissions made by D.W.1 during his cross-examination, learned Counsel for the respondents/plaintiffs submits that the aforesaid admissions of D.W.1 clearly show that the plaintiffs never consented for the sale of the property pertaining to Sy.Nos.518 and 519 and they never 15 ARR, J & GSD, J As_700_2012 received the sale considerations from Jana Chaitanya Housing Company, which clearly goes to show that the plaintiffs are also having equal rights in 'C' schedule property and that 'C' schedule property is still joint property of the parties, which is liable for partition in equal shares. In this regard, the contention of the appellants/defendants that the protected tenancy rights were surrendered and the defendants purchased 'C' schedule property by way of a simple money receipt, which was marked as Ex.B3, falsifies the claim of the defendants. The claim of the defendants cannot withstand the scrutiny of law as the P.T. rights cannot be sold or purchased by executing a simple receipt. Further, the author of the alleged document Ex.B3 K.Harinath Reddy was not examined in the aforesaid case and as such, the claim of the defendants that 'C' schedule property is their absolute property cannot be sustained. While relying upon the document Ex.A17, which is the order of the Special Grade Deputy Collector and Revenue Divisional Officer, Chevella Division, Rangareddy District, the learned Counsel for the respondents/plaintiffs submitted that by virtue of the orders under Ex.A17, the orders passed by the M.R.O. under Ex.B2 were set aside holding that 'C' schedule property belongs to A.Laxmaiah. The said order was not challenged by the defendants and as such, the order under Ex.A17 has attained finality. In the same way, when the defendants are claiming the ownership of 'A' and 'C' schedule 16 ARR, J & GSD, J As_700_2012 property, it is for the defendants to establish the same by way of documentary and oral evidence, but the own admissions of D.W.1 clearly proves the fact that the defendants are not having any documentary proof to show that 'A' and 'C' schedule properties are the self-acquired properties of the defendants. Even according to the defendants, Exs.B1 and B7 do not relate to 'A' schedule property, rather the plaintiffs have proved their case through cogent evidence by examining P.Ws.1 and 2 and also by producing the documents Exs.A1 to A4, A.6 and A.17. That apart, the defendants by their own admissions and their documents strengthened the case of the plaintiffs that the suit schedule properties are the joint properties of the parties and hence, they are liable for partition.
As rightly pointed out by the learned Counsel for the respondents/plaintiffs that the burden heavily lies upon the appellants/defendants, as they claimed that the schedule properties, particularly 'A' and 'C' schedule properties are not the joint family properties, but they are their self acquired properties. However, the documents filed in support of their claim, does not satisfy the statutory requirements, rather the documents Exs.A17, B-1 and B-7 fully supported the case of the respondents/plaintiffs. The learned trial Court has categorically dealt with all the documents filed by the respective parties and has given its findings with cogent reasons. 17
ARR, J & GSD, J As_700_2012 Further, in view of the admissions made by D.Ws.1 and 2, the trial Court has given a categorical finding that the suit schedule properties are the ancestral properties of Laxmaiah, who died intestate leaving behind the plaintiffs and the defendants bequeathing the suit schedule properties in favour of the plaintiffs and the defendants and as such the plaintiffs are entitled for a share in the suit schedule properties. Though the defendants contended that they are the exclusive owners of the suit schedule properties by virtue of Exs.B1 to B6, but in view of the admissions made by D.Ws.1 and 2, the said contention is unsustainable and hence, the trial Court has rightly held that the suit schedule properties are the joint family properties of the plaintiffs and defendants and that the plaintiffs are entitled to half share and the defendants are entitled to half share in the suit schedule properties. Therefore, we do not find any error or perversity in the findings arrived at by the learned trial Court.
In view of the foregoing reasons, we find that the findings of the trial Court, which are cogent, clear and clinching, do not warrant any interference by this Court and as such this appeal is devoid of merit and is liable to be dismissed.
Accordingly, the Appeal Suit is dismissed, confirming the judgment and decree, dated 04.06.2012 passed in O.S.No.525 of 2007 18 ARR, J & GSD, J As_700_2012 on the file of the III-Additional District and Sessions Judge (FTC), Ranga Reddy District. There shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
__________________________ A. RAJASHEKER REDDY, J _____________ G. SRI DEVI, J 30.11.2021 gkv/Gsn.