HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No. 320 of 2013
JUDGMENT:
This appeal is filed by defendant No.1 aggrieved by the judgment and decree of the learned III-Additional District and Sessions Judge (FTC), Ranga Reddy District passed in O.S.No.814 of 2007, dated 20.02.2013.
Appellant herein is defendant No.1; respondent No.1 herein is plaintiff and respondent Nos. 2 and 3 herein are defendants 2 and 3 in the suit. The parties will be referred to as arrayed before the trial Court.
The backdrop of the case leading to filing of this appeal is as under:
The plaintiff filed the suit for cancellation of sale deed vide document No.831 of 2007 dated 10.01.2007 executed by defendant No.1 in favour of defendants 2 and 3 in respect of the plaint scheduled property; for delivery of actual physical possession and to send a copy of the decree to the 2 District Registrar, Hyderabad, for necessary action and also for permanent injunction restraining defendants 2 and 3 from alienating, changing or altering the nature of the land. It is stated by the plaintiff that his father Yeruva Chinnappa Reddy is the absolute owner and possessor of plot No.121, admeasuring 400 square yards in Sy.No.1009 situated at Kukatpally, Phase IV, Rajendranagar Taluk, Ranga Reddy District, having purchased the same from A.P. Housing Board under sale deed No.8607 of 1988 dated 23.11.1988. It is stated that his father was aged 95 years and was not in good health for the last couple of years and on 14.12.2006 as the condition of his father was critical, the plaintiff informed the same to his brother and two sisters and that they came down to Warangal to see their ailing father and in the absence of the plaintiff, they had obtained thumb impressions and signatures of their father on some blank papers and stamp papers and created a forged and fabricated GPA in favour of defendant No.1 alleged to have 3 been executed by the father of the plaintiff on 01.12.1989 and got notarized on 03.01.1990 by one Kandula Srinivas Rao, advocate at Hyderabad, with anti-date. The plaintiff got issued a legal notice on 22.12.2006 to his brother and two sisters, who in turn issued a reply notice on 30.12.2006 about the existence of GPA in favour of the 1st defendant and that the plaintiff got issued a rejoinder on 23.01.2007. It is further stated that the plaintiff also filed a suit being O.S.No.481 and 2007 for injunction against his brother and sisters and in the said suit, his brother Rev.Fr.Y.Sebastian Reddy (defendant No.1 therein) filed a memo stating that a registered sale deed was executed in favour of defendants 2 and 3 herein vide document No.831 of 2007. It is stated by the plaintiff that the said document is voidable as his brother had no authority to execute the sale deed and that the same is not valid and binding on the plaintiff. It is further stated that the father of the plaintiff was hale and healthy till 2004 and he used to attend functions and as such 4 there was no necessity for him to execute GPA in the year 1989 and moreover the contents of GPA were in English language and his father was familiar only with Telugu language and not familiar with English language. It is further stated that his brother, two sisters and defendant No.1 entered into a fraudulent transaction and created fabricated GPA and that defendant No.1 sold away the property to defendants 2 and 3, which is not valid and binding on the plaintiff. Hence, the suit.
In the written statement filed by defendant No.1, it is stated that the plaintiff has no locus standi to question the sale deed executed by defendant No.1 in favour of defendants 2 and 3. The suit scheduled property does not belong to the plaintiff. The father of the plaintiff is not the absolute owner of the suit scheduled property and that the suit property was acquired by the wife of defendant No.1 with her own funds and out of love and affection it was registered in the name of one Y.Chinnapa Reddy, the father 5 of the plaintiff, and as such he executed GPA in his favour. He denied the allegation that on 14.12.2006, the brother and sisters of the plaintiff went to Warangal to see their ailing father and that they obtained his signatures and thumb marks on blank stamp papers. It is further stated that the plaintiff never gave notice to them on 22.12.2006 and he has no right over the scheduled property and that he cannot question the sale deed dated 10.01.2007 and, therefore prayed to dismiss the suit.
Defendant No.2 filed a written statement, which was adopted by defendant No.3 on similar lines as that of defendant No.1. They contended that the GPA was validly executed by the father of the plaintiff in favour of defendant No.1 and GPA is not a compulsorily registrable one at that time and that defendant Nos.2 and 3 are bona fide purchasers for a value and, therefore, the suit is liable to be dismissed. 6
During trial, the plaintiff examined himself as P.W.1 and got marked Exs.A-1 to A-8. On behalf of the defendants, D.Ws.1 and 2 were examined and got marked Ex.B1.
The trial Court, after considering the entire evidence, both oral and documentary, and the respective contentions of the learned Counsel appearing on either side, decreed the suit of the plaintiff by declaring that the sale deed dated 10.01.2007 executed by defendant No.1 in favour of defendant Nos.2 and 3 under EX.A7 as null and void and not binding on the plaintiff. The trial Court also directed the defendants to put the plaintiff in actual physical possession of the suit scheduled property and that defendants 2 and 3 were restrained by way of permanent injunction from alienating the scheduled property.
Aggrieved by the aforesaid judgment and decree of the trial Court, the present appeal has been preferred by defendant No.1. He contended that the suit itself is not 7 maintainable as it was filed without seeking the relief of partition, even though it was admitted by the plaintiff in the plaint that his brother and two sisters have equal rights over the property in question. Further, the plaintiff filed the suit without impleading his father, Y.Chinnapa Reddy, who was alive at the time of filing the suit, though it was alleged that he was the absolute owner of the suit scheduled property. It is further contended that the trial Court has erred in not considering the settled legal position that the initial burden of establishing the case is always on the plaintiff and thereupon the onus of defending the suit would shift to the defendants. The trial Court has also erred in not considering the significant fact that since the father of the plaintiff was alive by the date of filing of the suit, he could have secured the evidence of his father either to confirm or negate the execution of Ex.A8-GPA. Further, the trial Court failed to give any finding on the validity of the GPA. There was no evidence on record to show that the father of the 8 plaintiff was sick on 14.12.2006 and that the plaintiff has failed to adduce any evidence to show that he was not present on that day when allegedly his brother and sisters had visited their ailing father. It is further contended that the trial Court has erred in not considering the fact that the application filed by the plaintiff for sending Ex.A8-GPA for forensic examination, was dismissed on the ground that the plaintiff failed produce any material for comparison in support of his case. Therefore, the appellant/defendant No.1 requested the Court to allow the appeal by setting aside the judgment and decree of the trial Court.
Heard the learned Counsel appearing on either side and perused the entire material available on record.
The plaintiff, who was examined as P.W1, filed his chief-examination affidavit reiterating the contents of the plaint. In his cross-examination, he stated that his father had acquired Ac.4.00 of land at Nandanam village of 9 Warangal District and his grandfather had acquired Ac.4.00 of land and also a residential house at Nandanam village; that he is in possession of the suit scheduled properties at Nandanam village; that his brother sold Ac.5.00 of land at Nandanam village, which was acquired by his father, without his consent and that he did not file any case against him as his brother claimed exclusive rights over that property; that his father died on 11.09.2007 and he had not executed any will deed during his life time. He further stated that earlier he filed a suit being O.S.No.481 of 2007 for injunction against defendant No.1 herein and his brother in respect of the same property; that when he came to know that defendant No.1 sold away the property without his consent, he filed the present suit. He further stated that he did not give any police complaint against his brother and sisters for obtaining thumb impressions of his father on blank papers. He denied the suggestion that his sister purchased the suit property in the name of her father, who 10 in turn executed the GPA voluntarily in favour of defendant No.1 in the year 1989. One Hanumantha Rao and Innayya Reddy are the attestors of GPA, whereas the said Hanumantha Rao died in the year 1999.
Defendant No.1, who was examined as D.W.1, stated in his chief-examination that his wife had purchased the property out of her own funds in the name of her father, who is his father-in-law, and in turn he executed GPA on 31.12.1989 in his favour. But, in his cross-examination, he stated that his wife brought the application form from the Housing Board, but he does not remember who filled up the application form; that his father-in-law signed the application form as an applicant, but he had not seen personally when it was signed by his father-in-law; that he does not remember the date of submission of the application form to the Housing Board. He further stated that his wife was a Teacher in the year 1986 and he does not 11 remember the salary details of his wife at that time; that the suit plot was allotted in the year 1988 and he does not know whether the letter of allotment was sent to his address or to the address of his father-in-law; that his father-in-law had stayed with him in the year 1986 when they applied for allotment of plot; that the plot was allotted for Rs.36,000/- in the year 1988; that he does not know whether the sale consideration of the suit plot was paid through a cheque or Demand Draft or in installments or in lump sum, as his wife had paid the consideration; that he cannot produce the bank account of his wife for the year 1988; that his father-in-law received the sale deed from Housing Board and gave it to his wife and they are in possession of the suit property and thereafter his father-in-law executed a GPA in his favour. He admitted in his cross-examination that he got validated the GPA 20 years after its execution. He further admitted that after receipt of Ex.A2-legal notice got issued by the plaintiff to his wife and others dated 22.12.2002, he got 12 validated the GPA. It was suggested to D.W.1 that there was sufficient time between execution of GPA and its validation to obtain a registered GPA from his father-in-law and that there was no problem to obtain a registered gift deed from his father-in-law in favour of his wife. He further stated that though his father-in-law executed GPA at Hyderabad, he had mentioned the address of his father-in- law at Warangal in the GPA.; that his father-in-law died in October, 2007; that his father-in-law was hale and healthy and was able to move from one place to another place one month prior to his death and he was immobilized for a period of one month and he was not suffering from any major ailment.
D.W.2, who is the GPA holder of defendants 2 and 3, stated in his cross-examination that he worked as a lecturer in Saint Mary's Degree College; that defendant No.1 is his employer; that defendant No.2 asked his assistance to 13 purchase the property; that defendant No.1 was contemplating to dispose of his property since 2005 and that he introduced defendant Nos.2 and 3 to defendant No.1 in the year 2006; that in the house of defendant No.2, the documents were verified in his presence and that he was not aware as to what was the sale consideration fixed for suit scheduled property; that he was not present when the possession of the scheduled property was delivered to defendants 2 and 3.
The trial Court, considering the cross-examination of D.W.1, observed that the burden lies on the defendants to prove the validity of the GPA. Though as per the directions of this Court in C.R.P.No.398 of 2012, defendants 2 and 3 filed the Original GPA before the Court on 28.06.2012, they did not choose to examine their Notary, who drafted it, or the attestors of GPA to prove the same and as such Ex.A8- GPA, the sale deed executed by defendant No.1 in favour of 14 defendants 2 and 3 under Ex.A7 is not valid and binding on the plaintiff. It was also observed that defendants 2 and 3 did not choose to enter into the witness box to show that they are bona fide purchasers for a value without notice of the GPA being fabricated.
The Point that arises for consideration is whether the finding of the trial Court declaring that Ex.A7-sale deed dated 10.01.2007 executed by defendant No.1 in favour of defendant Nos.2 and 3, as null and void and not binding on the plaintiff, is on proper appreciation of facts or not?
Admittedly, Ex.A1-registered sale deed in respect of suit scheduled property was in favour of the father of the plaintiff, vide document No.8607 of 1988 dated 23.11.1988, having purchased the same from A.P. Housing Board. The main contention of the plaintiff is that at the age of 95 years when his father fell sick on 14.12.2006, his brother and two sisters came to Warangal to see their ailing father and 15 obtained thumb impressions and signatures of his father on blank papers in the absence of the plaintiff and got a fabricated GPA in favour of defendant No.1 with anti-date on 01.12.1989 and thereafter it was notarized on 03.01.1990 by one Kandula Srinivasa Rao, advocate at Hyderabad. The said stamp paper was purchased from one Syed Mohammed, a stamp vendor at Hyderabad and the address of the plaintiff's father was shown as Jaggayya Gundla village, Warangal District. Thereafter, the plaintiff got issued Ex.A2-legal notice on 22.12.2006 to his brother and the sisters. In the said legal notice, the plaintiff clearly stated that there was no partition of properties between him, his brother and two sisters. The plaintiff further stated that if they misuse the thumb impressions collected from his father on blank white papers and on Non Judicial Stamp papers, he will proceed against them by filing civil and criminal proceedings. In Ex.A3-reply notice dated 30.12.2006, the brother and sisters of the plaintiff stated that 16 they never visited Warangal on 14.12.2006 and collected signatures or thumb impressions of their father on blank papers and on Non Judicial stamp papers. It is further stated that the father of the plaintiff executed GPA in favour of the 1st defendant on 01.12.1989 and the same is still subsisting and that they expressed their willingness for amicable settlement of the issue. Through Ex.A4-rejoinder for reply notice dated 23.01.2007, the plaintiff called for the original GPA dated 01.12.1989 from the 1st defendant and also expressed his willingness for a meeting at Warangal. The plaintiff has also issued another legal notice on 31.01.2007 under Ex.A5, in which he expressed his willingness for a meeting in order to resolve the issue. In a memo filed by defendants 2 to 4 in O.S.No.481 of 2007 under Ex.A6, it was stated that the suit filed by the plaintiff for perpetual injunction restraining the defendants is not maintainable as it was filed after execution of Ex.A7- registered sale deed dated 10.01.2007. In view of exchange 17 of legal notices between the parties till 31.01.2007, the plaintiff filed the suit on 03.09.2007. The written statement of the 1st defendant was filed on 28.10.2007. It was contended by the defendants that by the date of filing of the suit, the father of the plaintiff was alive, but he died on 11.09.2007, hence, he was not impleaded as a party to the suit. The question of examining the father of the plaintiff as a witness does not arise as he died prior to the filing of the written statement by defendant No.1. Defendant No.1 is the brother-in-law of the plaintiff as he married his sister by name Y.Mary. Defendant No.1 contended that there was no partition between the parties and that the suit filed by the plaintiff for declaration of Ex.A7-sale deed as null and void and is not maintainable. The plaintiff admitted in his cross- examination that there was no partition between his family members. But, the grievance of the plaintiff is that his brother and two sisters came to their house on 14.12.2006 to see their ailing father and obtained thumb impressions and 18 signatures of his father on blank papers in his absence and got fabricated a GPA in favour of defendant No.1 with anti- date on 01.12.1989 and as such he sought for declaration of Ex.A7-sale deed dated 10.01.2007 executed by defendant No.1 in favour of defendants 2 and 3 in pursuance of GPA as null and void. Therefore, the contention of the learned Counsel for the appellant/defendant No.1 that the suit is not maintainable, as there was no partition between the parties, is not tenable. Admittedly, Ex.A1-registered sale deed in respect of the suit scheduled property was in favour of the father of the plaintiff. D.W.1 stated in his evidence that the suit scheduled property was purchased by his wife with her own funds in the name of her father and as such the father of the plaintiff executed GPA in his name in the year1989, but he got validated the same 20 years after its execution in the year 2006. If at all it was purchased by the wife of D.W.1 in the name of her father in 1989, her father might have gifted the same to her at a later point of time 19 instead of executing GPA in the name of her husband (D.W.1). Moreover, D.W.1 could not state the details of payment of sale consideration amount either by cash or by Demand Draft. The trial Court discussed his cross- examination at length and disbelieved his version. Even D.W.1 admitted in his cross-examination that his father-in- law was hale and healthy till one month prior to his death. When the father-in-law of D.W.1 was active till August, 2007, what was the necessity for him to execute GPA in favour of D.W.1 in the year 1989. Moreover, there was no partition among the plaintiff, his brother and two sisters during the life time of their father and he died intestate. Initially, the plaintiff filed the suit for injunction and when he came to know that the suit property was sold out by defendant No.1 in favour of defendants 2 and 3 on 10.01.2007, the Counsel appearing for the plaintiff not pressed the suit and filed the present suit for declaration. P.W.1 clearly stated in his evidence that his father used to 20 sign in Telugu language and he never affixed his thumb impression during his life time, but the GPA under Ex.A8 bears the thumb impression of his father. D.W.1 stated that due to old age, the father of the plaintiff could not sign properly and as such he affixed his thumb impression. As per the evidence on record, the father of the plaintiff was aged 95 years as on 14.12.2006 and he might have aged 72 years in the year 1989. Therefore, the contention of D.W.1 that the father of the plaintiff could not sign at that point of time and that he affixed his thumb impression on the GPA, cannot be accepted. As per the memo filed by D.W.1, the sale deed was executed in favour of defendants 2 and 3 just before filing of the suit by the plaintiff. Defendants 2 and 3 did not choose to enter into the witness box to show that they are the bona fide purchasers for a value.
In view of the foregoing reasons, I find that the trial Court, after evaluating the entire material available on record, rightly decreed the suit filed by the plaintiff by declaring that 21 Ex.A7-sale deed dated 10.01.2007 executed by defendant No.1 in favour of defendants 2 and 3, as null and void and not binding on the plaintiff and that there is no infirmity or illegality in the judgment of the trial Court. I do not find any ground warranting interference with the findings recorded by the trial Court and as such this appeal is devoid of merits and is liable to be dismissed.
Accordingly, the Appeal Suit is dismissed, confirming the impugned judgment and decree, dated 20.02.2013, passed in O.S.No.814 of 2007 on the file of the III-Additional District and Sessions Judge (FTC), Ranga Reddy District. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
_______________________ JUSTICE P.SREE SUDHA 15.12.2022 Gsn