THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
C.C.C.A.No.29 of 2022
JUDGMENT:
C.C.C.A.No.29 of 2022 is filed against the Judgment of the trial Court in O.S.No.2171 of 2022 dated 17.12.2013.
2. Plaintiffs filed suit against the defendants for partition and separate possession of 5/8th share in the suit schedule property. Plaintiff No.3 was examined as P.W.1, plaintiff No.4 as P.W.2 and defendant No.3 as P.W.3 and marked Ex.A1 to A12. Defendant No.2 examined as D.W.1 and marked Ex.B1 to B11. The trial Court considering the evidence on record and arguments of both sides observed that Ex.B1 to B3 discloses that the suit schedule property is a self acquired property of Sai Bai and as per Section 14 of Hindu Succession Act, it is her absolute property and she conveyed the same as gift to the defendant No.2 and defendant No.1 has no right to execute Ex.A2. It was also held that as defendant No.1 died, the suit claim in respect of recovery of service benefits become infructuous and plaintiffs are not entitled for partition of the suit schedule property and service benefits of their mother and accordingly dismissed the suit. Aggrieved by the said Judgment they preferred an appeal and mainly contended that suit schedule property was ancestral property of the appellants and they constructed house with the joint family funds, as such it is liable for partition. Even in the registered gift deed Ex.B3 dated 03.06.2002, it was clearly mentioned that the schedule house property is the ancestral property, as such mother of the appellants has no right to execute the Ex.B3 in favour of defendant No.2 by excluding other legal heirs. They further stated that even it is assumed that the site on which the house was constructed was given by the Government to the mother of the appellants and the second defendant, the patta was marked as Ex.B9 in which it was specifically mentioned that it shall not alienated. As such the execution of the gift deed executed by their mother in favour of the defendant No.2 is not valid. The trial Court failed to consider the admissions made by the defendant No.2 during cross-examination and erred in holding that suit schedule property is not liable for partition. The evidence of P.Ws. 1 to 3 discloses right over the suit schedule property, but the trial Court without considering the same dismissed the suit illegally. They further stated that it is well settled under Hindu Law that the presumption is that immovable properties are joint family properties having 2 ancestral nature unless it is proved. The trial Court instead of observing the fact that defendant No.2 failed to prove the exclusive right of their mother dismissed the suit. The trial Court has not considered the Ex.A2, Memorandum of Understanding executed by the first defendant in favour of the third defendant. The burden of proving the suit for partition is on both parties i.e, on plaintiffs and defendants. But the trial Court held that appellants failed to prove the contention raised by them. Therefore, requested the Court to set aside the Judgment of the trial Court in O.S.No.2171 of 2005.
3. Plaintiffs stated that defendant No.1 is their father, defendant Nos.2 and 3 are brothers, one Sai Bai wife of defendant No.1 is their mother and also the mother of defendant Nos.2 and 3. The defendant Nos. 4 and 5 are the tenants of the suit schedule property bearing premises No.7-1-632/17, Bapunanagar, S.R.Nagar, Hyderabad. The first defendant during his life time worked in Allwyn company and took voluntary retirement in the year 1990, from then onwards he was leading a retired life and their mother Sai Bai worked in a Government Maternity Hospital, Nayapul, Hyderabad till her death and she died intestate leaving behind plaintiffs, sisters, 3 father and brothers as legal heirs and successors. The defendant No.1 is a habitual drunkard and used to extract money from their mother and also from them. The property bearing No.7-1-632/17 admeasuring an extent of 101.67 Sq.yrds situated at Bapunagar, S.R. Nagar, Hyderabad is an ancestral house property with asbestos sheets roof and the same was demolished and with the joint efforts and funds of their mother and all the sisters constructed new R.C.C building consisting of three non-residential shops and residential portion. Their father and brothers have not contributed anything in the construction of the property. Although, the defendant No.2 got job in New India Assurance Company as Attender in the year 1990 itself, he did not contribute anything for the construction of the suit schedule property. He also became habitual drunkard and used to spend his salary for drinks without caring for the needs of the family members. Their mother separated the second defendant and he started residing separately along with his wife and children at premises No. 7-1-632/163/A at Bapunagar, S.R.Nagar, Hyderabad. After completion of the construction work, two shops let out to the defendant No.4 who is running a kirana general store and another shop to defendant No.5 who is running an authomobile 4 parts shop. The defendant No.1 was allowed to collect rents and manage the affairs of the family. The first defendant entered into agreement with the advertising company for display of hoardings over the top of the suit schedule property in consideration of the receipt of hire charges and thus deriving income on behalf of the plaintiffs and defendant Nos. 2 and 3. He also received entire service benefits of her mother on behalf of them and admitted the same by executing the memorandum of understanding dated 07.09.2002 and assured to pay their respective shares.
4. The plaintiffs and defendant Nos. 1 to 3 are entitled to share equally all the service benefits of late Sai Bai as legal heirs and successors and also hired charges/rental income as joint and co-owners. They got issued legal notice on 22.08.2005 to the first defendant as he is avoiding to pay their shares by giving lame excuses and also requested him to render the accounts. They further requested him for 5/8th share. The copies of the said legal notices have also sent to the defendant Nos. 4 and 5. But, none of them came forward or replied to the said notices, as such they filed suit for partition and separate possession of 5/8th share.
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5. On service of summons, the suit against defendant No.1 was dismissed as abated, defendant Nos.3, 4 & 5 remained exparte and defendant No.2 filed written statement admitting the relationship with the plaintiffs, defendants 1 and 3 also admitted that Sai Bai was wife of defendant No.1 and defendants 4 and 5 are the tenants of the suit schedule property. The defendant No.2 stated that defendant No.1 worked in Allwyn company and took voluntary retirement during the year 1990, from then onwards he is living a retired life and his wife Sai Bai worked in Government Maternity Hospital, Nayapul, Hyderabad and died intestate on 25.06.2002 leaving behind the plaintiffs, defendant Nos.1 to 3 as her legal heirs and successors. It was also represented that Sai Bai was Pattadar in respect of the land bearing H.No.7-1-632/17 admeasuring 101.67 Sq.yards vide Patta certificate bearing No.D/1234/90, also he denied the fact that house was constructed with the joint funds of the plaintiffs. He further stated that he was not addicted to liquor and stated that two shops were let out to the defendant Nos. 4 and 5 and the rents were collected by defendant No.1 as he is the senior member of the family. He also stated that plaintiffs and defendants are not entitled for any share of service benefits of their mother. 6
6. The trial Court in issue No.1 observed that P.W.1 stated that she has not filed any document to show that the plaint schedule property is ancestral property and she is not aware whether the plaint schedule property was originally belonged to Government and that Government issued Pattas to the persons who are in occupation. P.W.2 stated that the old house was in existence upto 1993 and house number was given by the MCH authorities in the name of their father. D.W.1 stated that his mother executed gift deed in his favour on 03.06.2002, his father acted as a witness to it, from then onwards he is in possession of the same. He filed the registered gift settlement deed under Ex.B3, property tax receipt under Ex.B4 and B5, Ex.B1 is the copy of the representation given to the R.D.O, Ex.B2 is the letter addressed to the R.D.O, Ex.B6 is the electricity bill, Ex.B7 is the mediclaim certificate issued by the New India Assurance Company, Ex.P.8 is the sanctioned plan of the premises, Ex.B9 is the form -D Patta certificate, Ex.B10 and B11 are the tax receipts. He further stated that he invested Rs.3,60,000/- for construction of the suit schedule property, at that time he was getting salary of Rs.4,000/- per month. He has not filed any document to show that he obtained loan for reconstruction of the house. He further denied the fact that he 7 was sent out of house by his parents about 15 years back. The complaint was given by the plaintiffs in S.R. Nagar Police Station and during the life time of his father he let out some portion to the tenants and getting rent of Rs.16,000/- per month from 3 mulgies. Ex.A1 is the death certificate of Sai Bai dated 02.08.2002. Ex.A2 is the memorandum of understanding executed by defendant No.1 in favour of plaintiff No.3. Ex.A3 is the legal notice. The trial Court considering the evidence on record held that it is not ancestral property and dismissed the suit. Aggrieved by the said order appeal is filed and they also filed the copy of the gift settlement deed dated 03.06.2002.
7. Plaintiffs mainly contended that gift deed was executed by their mother on 03.06.2002 and she died due to ill health on 25.06.2002, as such they alleged that defendant No.2 obtained her signatures and fabricated the gift settlement deed in his favour. Even in the gift deed it was specifically mentioned that it is ancestral property as contended by the plaintiffs. As such they contended that she has no right to execute gift deed in favour of defendant No.2 excluding other legal heirs and it is not valid. They also filed undertaking dated 15.11.1999 in which it was mentioned that house bearing No.7-1-632/17 measuring 8 an extent of 101.67 Sq. yards is an ancestral property of T.Dhanraj. They also filed memorandum of understanding dated 07.09.2002 executed by T.Dhanraj in favour of P.W.3, even in the said understanding it was mentioned that the marriage of the second party was performed with one Ramulu in the year 1990. Subsequently, in pursuance of O.P.No.142 of 1991 their marriage was dissolved by a decree of divorce dated 04.10.1991. From then onwards, first party was residing with the second party in house bearing No.7-1-632/17 which is ancestral property of the first party. First party is having 5 daughters and 2 sons. Even in the said memorandum of understanding, it was specifically mentioned that the house is ancestral property and the said documents are also filed before the trial Court. But the trial Court failed to appreciate the facts properly and held that plaintiffs did not file any document to prove that the property is an ancestral property and held that it is self-acquired property of Sai Bai as per Ex.B1 to B3, and it is her absolute property under Section 14 of the Hindu Succession Act, as such gift deed executed by her in favour of defendant No.2 is valid. When it was specifically mentioned in the gift deed and also in the memorandum of agreement that the property is an ancestral property, the mother of the plaintiffs has no right to execute gift 9 settlement deed in favour of defendant No.2 ignoring other legal heirs. Moreover, the first defendant executed memorandum of understanding subsequent to the gift deed in which he mentioned the date of death of his wife and also the fact that how many children he is having and he further stated that he was staying along with plaintiff no.3 in the said house and it is ancestral property. D.W.1 stated that his mother executed the gift deed in his favour and his father acted as witness for it. The defendant No.3/ surender had also given complaint against his brother D.W.1 on 22.08.2011 to the President and Panchayat Committee Chairman of Bapunagar Banjara Welfare Association in which he stated that their elder brother harassed and tortured them and not allowed him to stay in the house after the death of his father on 01.08.2010 and requested the committee members to resolve the problem at an early time. They also filed legal heir certificate issued by the M.R.O, Kahairthabad Mandal, Hyderabad District on 11.09.2002.
8. Plaintiffs relied upon the Judgment of the Hon'ble Supreme Court in the case of K.C. Laxmana Vs. K.C. Chandrappa Gowda and another in which it was held as follows: 10
"14. It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P.1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See : Thimmaiah Vs. Ningamma). Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation."
9. Perusal of the document shows that father and brother Surender attested the gift deed. When the mother of the D.W.1 has no right over the property, she cannot pass better title to D.W.1 by way of executing gift deed, as such the gift deed executed by Sai Bai in favour of his son D.W.1 is not valid. She has no right to execute gift deed when the property is an ancestral property, as such the gift deed is declared as null and void and the suit against defendant No.1 was dismissed as abated. The plaintiffs are daughters and defendants are sons of the deceased Sai Bai, they are entitled for 5/7th share in the suit schedule property and also in the service benefits of their mother.
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In the result, the appeal is allowed by setting aside the Judgment of the trial Court in O.S.No.2171 of 2022 dated 17.12.2013.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 24.11.2022 tri 12 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA C.C.C.A.No.29 of 2022 DATED:24.11.2022 TRI 13