HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.469 of 2015
JUDGMENT :
This Second Appeal is arising out of the judgment and decree dated 09.12.2013 in A.S.No.4 of 2010 on the file of VII Additional District Judge, Bodhan, Nizamabad, which is arising out of the judgment and decree dated 04.11.2009, passed in O.S.No.49 of 2008 on the file of Senior Civil Judge, Bodhan, Nizamabad.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court. The appellant is the 6th defendant.
3. The plaintiff has filed a suit for partition and separate possession and for share in schedules 'A', 'B', and 'C', of suit schedule property. As the suit is for partition, it is necessary to discuss about the properties. 'A' schedule properties are the agricultural lands situated in Sy.Nos.342/1 and Sy.No.342/1/1 and 342 admeasuring Ac.1-07 gts, Ac.1-20 gts and Ac.2-13 gts respectively, situated at Varni Shivar of Varni Mandal, Nizamabad. 'B' schedule properties are also the agricultural lands in 2 GAC, J S.A.No.469 of 2015 Sy.No.318/1 admeasuring Ac.2-28 gts situated at Veerapur shivar of Varni Mandal. 'C' schedule properties relates to residential house bearing H.No.9-16 situated at Satyanarayanapuram Village, Varni Mandal, Nizamabad District.
4. It is important to discuss about the relationships of the parties as the suit is relating to partition. The plaintiff is the elder sister of the 1st defendant. Defendant Nos.3 and 4 are the sons of Smt.Kothapally Durga Vijaya Laxmi, who is the elder sister of the plaintiff. Defendant Nos.5 and 6 are the younger sisters of the plaintiff and the 2nd defendant is the mother of the plaintiff. They all belong to Hindu Joint Family and have coparcenery rights in 'A', 'B', and 'C' schedule properties, wherein it is the claim of the plaintiff that he is entitled for one share.
5. On the other hand, the defendant Nos.1 to 6 have filed a written statement contending that the suit is not maintainable. It is the further contention of the defendants that late Yelamanchi Subramaneshwar Rao migrated to Nizamabad District, died on 24.12.1964 leaving behind his four sons namely Venkatehwar Rao, Prasad Rao, Madhava Rao and Mohan Rao and except Madhava 3 GAC, J S.A.No.469 of 2015 Rao, all the three sons died. During their life time, all of them have partitioned both movable and immovable properties. Later, the marriage of the plaintiff was performed on 07.05.1980 and at the time of marriage, an amount of Rs.50,000/-was given to her towards 'pasupukumkuma'. The written statement further discloses that Venkateshwar Rao purchased the 'A' schedule properties and died on 12.09.2002 and after his death i.e., on 12.09.2002, the properties got mutated in the name of the 1st defendant. Since the marriage of the plaintiff was performed on 07.05.1980, she is not entitled to claim 1/6th share out of the properties mentioned in 'A' schedule and that the marriage of the 5th defendant was performed on 28.03.1986 and therefore, defendant Nos.5 and 6 alone are entitled for partition due to the reason that they got married subsequent to amendment of Hindu Succession Act and it is also contended that the suit is barred by limitation.
6. Considering the pleadings, the trial Court has framed the following issues:-
4
GAC, J S.A.No.469 of 2015 "1. Whether the plaintiff is entitled to claim 1/6th share out of the property mentioned in the 'A' and 'B' and 'C' schedules annexed with the plaint?
2. Whether the plaintiff entitled to claim future mesne properties as prayed?
3. To what relief?"
7. On behalf of the plaintiff, P.W1 was examined and Exs.A-1 and A-2 were marked and on behalf of the defendants, D.Ws.1 to 3 were examined.
8. Being aggrieved by the same, the unsuccessful plaintiff has preferred an appeal vide A.S.N.4 of 2010 before the VII Additional District Judge, Nizamabad, Bodhan.
9. Considering the material on record, the first appellate Court has framed the following points for consideration:-
"i. Whether the suit schedule properties are Joint Hindu Family properties?
ii. Whether plaintiff is entitled to 1/6th share in the suit schedule properties?
iii. To what relief?"
10. The first appellate Court has considered the crucial document i.e., Ex.A-12 which reveal that 'A' and 'B' schedule 5 GAC, J S.A.No.469 of 2015 properties are the ancestral properties, where the name of Yelamanchi Venkateshwar Rao was shown in the patta column for the year 1965-66, 1975-76, 1979-80, 1990-91 and only the name of Subramanyam has been recorded in the pahani for the year, 2001- 2002 and 2002-06 but there are corrections in the pahani for the year 2001-02 and 2005-06 and that there was no initial or stamp for carrying corrections and concluded that the plaintiff is entitled for 1/6th share being coparcener as per the amendment of Section 6 of the Hindu Succession Act and also allowed the suit by setting aside the judgment and decree O.S.No.49 of 2008 dated 04.11.2009 on the file of Senior of Civil Judge, Bodhan and directed to prepare preliminary decree.
11. Being aggrieved by the same, the 6th defendant, who is the younger sister of the plaintiff has filed Second Appeal raising following substantial questions of law along with Memorandum of grounds:-
"a. Whether the findings of the Lower Appellate Court contrary to evidence on record vitiate the Preliminary Decree and Judgment of Lower Appellate Court below?6
GAC, J S.A.No.469 of 2015 b. Whether Ex.A-12 was properly interpreted in the light of Evidence of DW.2?
c. Whether the amended Sec.6 of Hindu
Succession Act can be applicable to the
Respondent No.1?
d. Whether the Respondent No.1 is entitled any share under the benefit of Sec.29 (A) of Hindu Succession Act?
e. Whether Ex.A12 is properly interpreted by the Lower Appellate Court in relation to Ex.1 and Ex.2, which was filed by the 1st respondent/plaintiff interpreted by the trial Court in respect of partition, was affected prior to 2004?
f. Whether mere recording of the name in the record discloses ancestral property as finding of the Lower Appellate Court? Vitiated the reason of the Appellate Court below.
g. Whether the mere mutation of the name in the revenue records amounts to partition in the absence of the partition deed or any oral partition in respect of suit schedule property under the law?
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GAC, J S.A.No.469 of 2015 h. When and what circumstances and How the amendment to Sec.29 (A) of Andhra Pradesh Amendment to the Hindu Succession Act is applicable as opinioned by the both courts? Vitiated the reasoning of the court below?"
12. It is pertinent to mention that the Second Appeal is filed by the 6th defendant giving a go-bye to the contents of the written statement which was signed by her. It is contention of the appellant/6th defendant that she is the absolute owner of the 'B' schedule properties under the un-registered gift deed dated 15.08.1991 for which her father was the absolute owner and it was given to her as 'pasupukumkuma' at the time of her marriage and that the property is a self acquired property of her father. It is also the contention of the appellant that lower Court has not considered the evidence of D.W2 that the 'B' schedule properties was gifted by the father of the appellant and it amounts to exclusion of factual aspect and the plaintiff is not entitled for 1/6th share in 'B' schedule properties.
13. The chief affidavit of D.W1 is nothing but repetition of the facts of the written statement. The chief affidavit of D.W1 8 GAC, J S.A.No.469 of 2015 discloses that 'A' schedule properties were originally purchased by his father Venkateshwar Rao on 12.09.2002 and after the death of his father, his name was mutated. Since the marriage of the plaintiff was performed on 07.05.1980, she was not entitled for a share in the suit schedule property as per Section 29-A of the Hindu Succession Act.
14. It is specifically deposed by D.W1/1st defendant that he has read over the contents of his chief affidavit in his mother tongue and the said contents were admitted by the other defendants to be true and correct. It was also his specific admission that after the death of his father, the properties mentioned in the suit schedule property were mutated on his name. D.W2 is the mother of the plaintiff. Her evidence discloses that wet land was given to the last daughter Padmaja by executing a registered document but no such document was filed before the Court, to prove that the 6th defendant/petitioner had acquired right over the property.
15. Further, the evidence of D.Ws.1 to 3 nowhere discloses that property was given to the 6th defendant by way of registered gift deed by his father Venkateshwar Rao. It is the specific admission 9 GAC, J S.A.No.469 of 2015 of D.W2 that suit schedule property was purchased by her husband Venkateshwar Rao and after his death, the properties were transferred in the name of her son. Neither the recitals in the written statement nor the evidence of defendants discloses that 'B' schedule properties were transferred by way of gift deed by the father of the plaintiff to the 6th defendant.
16. In Ponnayal alias Lakshmi versus Karuppannan (dead) through legal representative Sengoda Gounder And Another1, their lordships held that the issues in respect of documents neither pleaded nor in respect of which any issues were framed, held, cannot be adjudicated. Civil suits are decided based on pleadings and issues framed and parties to suit cannot be permitted to travel beyond pleadings.
17. The above said proposition squarely applies to the present facts and circumstances of the case. There is no pleading before the Court that the 'B' schedule properties were transferred to the 6th defendant by way of unregistered gift deed. Moreover, any unmovable property transferred by way of gift shall be registered. 1 (2019) 11 SCC 800 10 GAC, J S.A.No.469 of 2015 Admittedly, the 6th defendant also signed the written statement and she is not an illiterate. Further, no such ground has been raised before the first appellate Court claiming right by virtue of unregistered gift deed. Therefore, it is not proper for the party to come up with a new plea by giving a go-bye to the entire pleadings, issues and findings of the Courts below. The first appellate Court rightly appreciated the evidence on record while determining the rights of the parties and further a preliminary decree has been granted in favour of the plaintiff for 1/6th share of 'A', 'B' and 'C' schedule properties. Therefore, it is not proper to interfere with the orders passed by the first appellate Court as well as the trial Court.
18. Second Appeal is of the year, 2015 and it underwent numerous adjournments and still coming up for admission.
19. It is pertinent to mention that there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, only then, this Court can interfere with the orders of the Courts below. On perusal of 11 GAC, J S.A.No.469 of 2015 the entire material on record, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore in the absence of substantial question of law, it is not proper to interfere with the concurrent fact findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
20. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment and decree dated 09.12.2013 in A.S.No.4 of 2010 on the file of VII Additional District Judge, Bodhan, Nizamabad. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 17.11.2022 dv