Andhra Pradesh High Court - Amravati
Grandhi Veera Venkata Satya ... vs Grandhi Sreerama Murthy on 16 November, 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
A.S.Nos.81 and 424 of 2007
COMMON JUDGMENT:
These two appeals arise out of a common judgment in O.S.Nos.54
of 2005 and 84 of 2003 in the Court of IX Additional District & Sessions
Judge, (Fast Track Court), Visakhapatnam, dated 31.10.2006 and as such
they are being disposed of together. The parties in these appeals are the
same. However for ease of convenience, the parties are being referred to
as they were arrayed in O.S.No.54 of 2005.
2. The plaintiff has appeared and argued his case as party in
person. Sri Challa Dhananjay has appeared for the 3rd defendant. There is
no representation for the remaining defendants.
3. Late Sri Grandhi Suryarao had three sons, viz., the plaintiff
and defendants 1 and 2, and 8 daughters. One daughter is said to have
committed suicide on 10.02.1997 and another daughter has been missing
for quite some time. The remaining six daughters are arrayed as
defendants 4 to 9. Late Sri G. Suryarao and his wife had acquired the suit
schedule property by way of a deed of sale dated 10.08.1966, which was
marked as Ex.A.2. The wife of Sri G. Suryarao had passed away earlier in
the year 1994 and Sri G. Suryarao passed away on 18.06.1998. The suit
schedule property, consists of a RCC slab building with ground floor and
1st floor, is situated in 180 sq. yards of land bearing D.No.46-15-9 of
Dondaparthy village Division No.31 of Visakhapatnam. The plaintiff had
filed O.S.No.369 of 2003 on the file of I Additional Senior Civil Judge,
Visakhapatnam for partition of the suit schedule property, between
himself and defendants 1 and 2 only. While this suit was pending, the
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A.S.Nos.81 & 424 of 2007
defendants 1, 2 and 4 to 8 had executed a sale deed conveying the suit
schedule property to the 3rd defendant by way of a deed of sale dated
19.08.2003. Subsequently, the 9th defendant had executed a
supplementary deed in favour of the 3rd defendant on 06.09.2003. This
sale and supplementary deed were assailed and challenged by the
plaintiff, by way of O.S.No.84 of 2003. Later O.S.No.369 of 2003 was
transferred to the District Court and renumbered as O.S.No.54 of 2005 for
joint trial to be heard along with O.S.No.84 of 2003.
4. The case of the plaintiff in both the suits is that the property
is joint family property of the coparcenery of late Sri G. Suryarao and only
the sons of late Sri G. Suryarao would be entitled to a share in the
property. This would mean that the property would have to be divided
into three parts, viz., the plaintiff, the 1st defendant and the 2nd defendant
herein. It is the further case of the plaintiff that the sale of the suit
schedule property in favour of the 3rd defendant by way of the initial deed
of sale dated 19.08.2003 and the supplementary deed dated 06.09.2003
requires to be set aside as the said sale has been carried out to cause
unlawful loss to the plaintiff by the other family members of the plaintiff
who were not entitled to dispose of the suit property, which was already
the subject matter of O.S.No.54 of 2005.
5. The defendants filed their written statements contending
that the property is the self acquired property of their father and that all
the sons and daughters of late Sri G. Suryarao would have equal shares in
the said property. The 3rd defendant took the stand in both the cases that
the purchase made by the 3rd defendant is a genuine and bona fide
transaction and it does not take away any right of the plaintiff.
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A.S.Nos.81 & 424 of 2007
6. On the basis of the above pleadings, the trial Court
formulated the following issues in both the suits.
7. In O.S.No.54 of 2005 the following issues and additional
issue were settled:
1. Whether the suit is bad for non-joinder of necessary co-sharers as
parties to the suit?
2. Whether the plaintiff is entitled to 1/3rd share or 1/9th share in the
plaint schedule property?
3. To what relief?
Additional Issue:
1. Whether the plaintiff is ousted from the family of the father of
plaintiff, if ousted, what is the effect?
In O.S.No.84 of 2003 the following issues were settled:
1. Whether the plaintiff is entitled to a declaration tha the registered
sale deed dated 19.08.2003 executed by defendants 1 to 6 in favour
of 8th defendant and the supplemental registered deed dated
06.09.2003 executed by the 7th defendant in favour of the 8th
defendant are null, void and unenforceable?
2. Whether the plaintiff is entitled to consequential relief of permanent
injunction restraining the defendants 1 to 8, their men and agents
from ever interfering with the plaintiff‟s peaceful possession and
enjoyment of the suit schedule property?
3. To what relief?
8. The plaintiff examined himself and another witness as PWs.1
and 2 and marked Exs.A.1 to A.18. The 1st defendant was examined as
DW.1, the 3rd defendant was examined as DW.2 and the 4th defendant
was examined as DW.3 and marked Exs.B.1 to B.11(A). One exhibit was
marked as Ex.X.1.
9. The trial Court after conducting trial and hearing all sides,
had partly decreed both the suits.
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A.S.Nos.81 & 424 of 2007
10. The trial Court while partly allowing the suits had held as
follows:
a) The plaint schedule property was the ancestral joint family
properties of late Sri G. Suryarao and his family members;
b) Plaintiff and defendants 1, 2 and 4 to 9 are entitled to one share
each;
c) Sale deed dated 19.08.2003 and settlement deed dated
06.09.2003 executed in favour of the 3rd defendant are null and void and
not enforceable under law;
d) The 3rd defendant is entitled to recover the amounts paid to his
vendors by way of separate proceedings: and
e) A permanent injunction restraining the 3rd defendant from
interfering with the plaintiff‟s peaceful possession and enjoyment of the
plaint schedule property.
11. Aggrieved by the said judgments and decrees, the plaintiff
has filed A.S.No.81 of 2007 against the judgment and decree in O.S.No.54
of 2005. The 3rd defendant has filed A.S.No.424 of 2007 against the
judgment and decree in O.S.No.84 of 2003.
12. The appeal filed by the plaintiff in A.S.No.81 of 2007 is
essentially on the question of the shares of the family members of late Sri
G. Suryarao. The finding of the trial Court that the suit schedule property
is joint family property is not the subject matter of either appeal and the
said finding has become final and binding on all the parties. However, the
plaintiff contends that only the male members of the family i.e., plaintiff
and defendant Nos.1 and 2 are entitled to a share in the suit schedule
property and the said property has to be partitioned into three parts and
not nine parts as directed by the trial Court.
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A.S.Nos.81 & 424 of 2007
13. Sri Challa Dhanamjaya, learned counsel appearing for the 3rd
defendant in both the appeals submits that the issue as to the right of the
daughters in the joint family property is no more res integra and relied
upon the judgment of the Hon‟ble Supreme Court in Vinitha Sarma v.
Rakesh Sarma and Ors1.
14. The Hindu Succession (Amendment) Act, 2005 (for short „the
Act‟) had conferred certain rights on daughters in coparcenery property.
The effect of this amendment came to be considered by the Supreme
Court in Prakash v. Phulavati2, which held that only living daughters of
living coparceners as on the date of commencement of the Amendment
Act would have coparcenery rights in hindu joint family property.
15. There was a subsequent judgment of the Hon‟ble Supreme
court on the very same issue in Danamma v. Amar3. A Division Bench of
the Hon‟ble Supreme Court in Lokamani and others v.
Mahadevamma and others4, took the view that there was a conflict of
opinion between these two judgments and referred the matter to a Bench
of three learned Judges. Subsequently, a Bench of three learned Judges
of the Hon‟ble Supreme court decided this issue in Vinitha Sarma v.
Rakesh Sarma and Ors. The Full Bench by way of answering the
reference held that the provisions contained in the substituted Section 6
of the Hindu Succession Act, 1956 confers status of coparcenery on the
daughters born before or after the amendment, in the same manner as a
son with the same rights and liabilities, subject to the disposition or
1
2020 (9) SCC 1
2
2016 (2) SCC 36
3
2018 3 SCC 343
4
(2020) 9 SCC 91
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A.S.Nos.81 & 424 of 2007
alienation, partition or testamentary disposition of the property which may
have taken place before 20.12.2004.
16. In the present case, the suit schedule property has not been
subjected to any such transaction and consequently following the
aforesaid judgment of the Hon‟ble Supreme Court, it must be held that all
the children of late Sri G. Suryarao would be entitled to a share in the suit
schedule property. Accordingly, the finding of the trial Court in this regard
is confirmed.
17. A.S.No.424 of 2007 has been filed by the 3 rd defendant to
set aside the finding and direction of the trial Court that the deed of sale
dated 19.08.2003 and deed of settlement dated 06.09.2003 executed in
his favour are null and void. A perusal of the said judgment would show
that the trial Judge came to this conclusion on the grounds that the sale
of the property was carried out by the remaining defendants even after
they were aware of the pendency of the suit and the claim of the plaintiff;
inadequate consideration had been paid for purchase of the property as
the value of the property was around 16,30,000/- while the 3rd defendant
is said to have purchased the property for a value of Rs.10 lakhs, which
shows that there was inadequate consideration; the plaintiff had a right,
under Section 4 of the Partition Act, to purchase the shares of other
sharers and the said right has been taken away by the said sale to the 3rd
respondent; the entire transaction was hurried through in a clandestine
manner and the same reflects some ill-intention and consequently the
documents need to be declared as null and void.
18. The reasons set out by the trial Court cannot be accepted. It
is an admitted fact that the documents which require stamp and
registration are invariably undervalued, to the extent possible both with a
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A.S.Nos.81 & 424 of 2007
view to avoid stamp duty, registration fee and also evade the income tax
valuation of the transaction. In fact, the Parliament having recognised this
tendency had amended the Income Tax Act 1961 to include Chapter-XX-C
whereby the department would be entitled to purchase any property over
and above the value of Rs.20 lakhs where sale documents in relation to
such property are presented before the registering authorities. In those
circumstances, the ground of under valuation does not in any manner
require the setting aside of the above two documents.
19. The trial Court accepted the contention of the plaintiff that
the sale of the property was done to harm his interests and therefore
requires to be set aside. It is true that these two documents show as if
the entire schedule property has been purchased by the 3rd defendant.
The explanation given by the 3rd defendant, as to why he had accepted
such a document while the claim of the plaintiff remain outstanding, is
that he was shown a news paper notice issued by Late Sri G. Surya Rao,
disowning the plaintiff and consequently he was advised that the said
claim of the plaintiff need not be taken into account.
20. Section 4 of the Partition Act reads as follows:
"4. Partition suit by transferee of share in dwelling-
house.--(1) Where a share of a dwelling-house belonging
to an undivided family has been transferred to a person
who is not a member of such family and such transferee
sues for partition, the court shall, if any member of the
family being a shareholder shall undertake to buy the
share of such transferee, make a valuation of such share
in such manner as it thinks fit and direct the sale of such
share to such shareholder, and may give all necessary and
proper directions in that behalf."
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A.S.Nos.81 & 424 of 2007
21. A reading of the said provision makes it amply clear that the
said provision comes into play only when an outsider, who is not a
member of the family, acquires a share in a property and initiates
proceedings for partition of the property. In that case, any of the family
members can undertake to purchase the share of such outsider and the
Court shall, after valuation, direct the sale of the share of the outsider to
the family member/s. In the present case, the plaintiff had already
initiated a suit for partition even before the 3rd defendant had purchased
the property. Section 4 of the partition is obviously not applicable to the
case. Further, this provision does not grant any right to the plaintiff to
purchase the shares of defendants 1,2 and 4 to 9.
22. In view of the filing of the suits and the declaration of the
interests of the plaintiff in the property, no harm would be caused to the
plaintiff by the above transactions. In the circumstances, it would suffice
to hold that the deed of sale dated 19.08.2003 and deed of settlement
dated 06.09.2003 would only convey the right title and interest of
defendants 1, 2 and 4 to 9 to the 3rd defendant and the right and interest
of the 3rd defendant is restricted to the right and interest of defendants 1,
2 and 4 to 9 only.
23. Accordingly, A.S.No.424 of 2007 is partly allowed to the
extent mentioned above.
24. As a result of the above findings, both the appeals are
disposed of with the following findings/directions:
1. The suit schedule property is Hindu joint family property in which
the sons and daughters of late Sri G. Suryarao have equal shares
and the finding of the Trial court to this effect is affirmed.
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A.S.Nos.81 & 424 of 2007
2. The shares of defendant Nos.1, 2 and 4 to 9 in the suit schedule
property have now been conveyed to the 3rd defendant and the 3rd
defendant continues to have those rights.
3. The final decree proceedings pursuant to the preliminary decree
dated 31.10.2003 passed in O.S.No.54 of 2005 may go on subject
to the above modifications.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed. There shall be no order as to costs.
_________________________
R. RAGHUNANDAN RAO, J.
16th November, 2021
Js.
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A.S.Nos.81 & 424 of 2007
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
A.S.Nos.81 and 424 of 2007
16th November, 2021
Js.
