Velavarthipati Chandrakala ... vs Inamanamellur Srimanthini Devi
2021 Latest Caselaw 3292 AP

             HON'BLE SRI JUSTICE M. VENKATA RAMANA

               SECOND APPEAL Nos. 248 & 854 of 2011


COMMON JUDGMENT:

        Both these second appeals are preferred by defendants 1 and 3 in

O.S.No.192 of 2002 on the file of the Court of the learned Additional

Senior Civil Judge, Ongole. The 1st respondent was the plaintiff and the

2nd respondent was the 2nd defendant.

2. The 1st respondent laid the suit for partition claiming 1/4th share

in plaint A & B schedule properties and to allot the same to her.

3. Plaint A-schedule consisted of two houses at Ongole and a

house site at Hyderabad. Plaint B-schedule is the death benefits payable

on the death of Sri Ramesh Babu, who was an engineer working in

Panchayat Raj Department in Prakasam District.

4. The 1st respondent is the mother and the 1st appellant is the

wife of Sri Ramesh Babu. The 2nd appellant and the 2nd respondent are

the son and daughter respectively of the 1st appellant and Sri Ramesh

Babu.

5. The 1st appellant was then working as a Matron in B.C.Girls

Welfare Hostel at Ongole.

6. Sri Ramesh Babu is the son of the 1st respondent and Sri

Krishnaswamy Rao. Sri Krishnaswamy Rao retired as Deputy Executive

Engineer, Panchayat Raj Department, Government of A.P. in Prakasam

District.

7. Sri Ramesh Babu, after completing his bachelor of Engineering

Course, joined Gouthami Engineering Cement Works, Guntur and later

worked as an engineer in Bhaskar Palace Hotel, Hyderabad for two or MVR,J S.A.No.248, 854 of 2011

three years. He was appointed in the year 1991 as Work Inspector in

Panchayat Raj Department with first posting at Peda Cherlopalli, Kanigiri.

8. The marriage of Sri Ramesh Babu and the 1st appellant was

celebrated in the year 1985. The 1st appellant was appointed as Matron in

B.C.Welfare Hostel at Kanigiri in the year 1987.

9. Sri Ramesh Babu, 1st and 2nd appellants as well as the 2nd

respondent were living in item No.1 of the plaint-A schedule property,

which is a three storeyed house in Nirmal Nagar, Ongole. Unfortunately,

Sri Ramesh Babu died of electrocution on 28.10.1999 coming in contact

with a hyper tension electric wires passing infront of his house.

10. It is the case of the 1st respondent that she being a legal heir

to succeed to the estate of Sri Ramesh Babu, entitled to 1/4th share in all

the plaint schedule properties since they were all acquired by him, though

stood in the name of the 1st appellant. The 1st respondent further alleged

that the 1st appellant married one Sri Suresh, within a short time of the

death of Sri Ramesh Babu, who began to illtreat her grand children,

namely, the 2nd appellant and the 2nd respondent, who were trying to

alienate plaint A-schedule properties and to withdraw the entire death

benefits, depriving her and her grand children of their share therein. The

1st respondent also got issued a registered notice to the Executive

Engineer, Panchayat Raj Department, Ongole and also Mandal

Development Officer at H.M.Padu Mandal requesting to settle the share of

minor children of her son out of the death benefits. Thus, the 1st

respondent set forth her claim in the plaint as well as at the trial.

11. The 1st appellant as well as her children-2nd appellant and 2nd

respondent, resisted the claim of the 1st respondent mainly contending

that plaint A-schedule properties were purchased by the 1st appellant out MVR,J S.A.No.248, 854 of 2011

of her own funds and thus, they are her self acquired properties. The 1st

appellant further contended that her marriage and of Sri Suresh was

arranged by her parents to safeguard interest of herself and her children

born through Sri Ramesh babu. She further contended that she had sold

away item No.3 of the plaint A-schedule to a third party under registered

sale deed dated 25.10.2002 after purchasing the same from Sri

N.Damodara Reddy under registered sale deed dated 13.08.1990. Thus,

they denied the claim of the 1st respondent to plaint A-schedule

properties.

12. In respect of plaint B-schedule properties the appellants stated

that Sri Ramesh Babu died intestate and that the 1st appellant, her two

children as well as the 1st respondent are the nearest legal heirs.

However, at the trial, she stated that the 1st respondent is not entitled for

any share therein, since her husband retired as Deputy Executive Engineer

in Panchayat Raj Department and in view of requirement of the minors.

13. On the pleadings, learned trial Judge settled the following

issues for trial:

"1. Whether the suit schedule properties are properties of late Inamanamelluru Ramesh and as such plaintiff has share?

2. Whether the plaintiff is in constructive possession and as such if the court fee paid is correct?

3. Whether item No.3 is not available for partition?

4. Whether the suit schedule properties are self acquired properties of 1st defendant?

5. To what relief?"

14. The parties went to trial. The 1st respondent examined herself

as P.W.1 and no documents were exhibited on her behalf. The 1st

appellant examined herself as D.W.1 and relied on Ex.B1 and Ex.B2 and

through D.W.3, Ex.X1 to Ex.X5 were exhibited at the trial.

MVR,J S.A.No.248, 854 of 2011

15. Basing on the material, the learned trial Judge held that the

appellant is entitled for 1/4th share in plaint A-schedule properties and no

finding was recorded with reference to plaint B-schedule properties.

However, the learned trial Judge ultimately directed division of item No.2

of plaint A and B schedule properties, for being partitioned among these

parties into four (04) equal shares and to allot one such share to the 1st

respondent and three remaining shares to appellants 1 and 2 and the 2nd

respondent.

16. The 1st respondent separately and appellants 1 and 2 as well

as 2nd respondent together preferred separate appeals against the decree

and judgment of the trial Court in A.S.No.19 of 2006 and A.S.No.148 of

2005 respectively on the file of the Court of the learned I Additional

District Judge, Prakasam at Ongole respectively. Both these appeals were

heard together and were disposed of by common judgment dated

04.10.2010.

17. Whereas A.S.No.19 of 2006 was allowed modifying the decree

of the trial Court directing division of items 1 and 2 of plaint A-schedule

properties into eight (08) equal shares and to allot one such share to the

1st respondent. Mesne profits were directed to be ascertained w.e.f.

30.11.2002 till her share is settled, in favour of the 1st respondent. Further

direction was given for payment of Rs.21,500/- out of plaint B-schedule

properties towards 1/4th share with interest thereon at 12% p.a. from

30.11.2002 till realisation with costs throughout. The appeal was

dismissed in respect of item No.3 of plaint A-schedule properties.

18. A.S.No.148 of 2005 was dismissed in view of allowing

A.S.No.19 of 2006.

MVR,J S.A.No.248, 854 of 2011

19. It is against these decrees and judgments, the appellants 1

and 2 have preferred these second appeals. The 1st respondent alone is

shown as contesting respondent in these appeals while 2nd respondent is

only a proforma party.

20. Smt. Anasuya, learned counsel for the appellants, addressed

arguments in these second appeals. The 1st respondent did not appear in

these second appeals through served notices.

21. The second appeals were admitted and the substantial question

of law settled therein is as follows:

"Whether in a suit for partition filed by a mother-in-law against her daughter-in-law and grand children, an item of property, which admittedly stands in the name of daughter-in-law, can be directed to be partitioned, on the presumption that the deceased-son might have contributed half of his income for the purchase of the property?"

22. In the course of hearing, Smt. A.Anasuya, learned counsel for

the appellants, informed that the claim of the 1st respondent in respect of

plaint B-schedule properties was settled. While admitting this second

appeal, in SAMP No.199 of 2011, this Court, by the order dated

14.07.2011, granted interim stay on condition that the appellants shall

pay the share of the 1st respondent in plaint B-schedule properties as per

the preliminary decree within four (04) weeks and in case of default, the

interim stay shall stand vacated. In view of the representation of the

learned counsel for the appellant, it is clear that the order above was

acted upon.

23. In usual course, as observed by the appellate Court with

reference to plaint B-schedule properties, the 1st respondent being mother

of the deceased Sri Ramesh Babu stood entitled for 1/4th share out of his

estate. Whereas his wife and children, namely, the appellants 1 and 2 and MVR,J S.A.No.248, 854 of 2011

the 2nd respondent together stood entitled to 3/4th share out of such

estate.

24. The contention of the appellants is that items 1 to 3 of the

plaint A-schedule properties were purchased by the 1st appellant out of

her own funds and money and that Sri Ramesh Babu did not acquire them

in her name. Ex.B1 is the registered sale deed dated 12.12.1996 under

which item No.1 of the plaint A-schedule property was purchased for

Rs.1,85,000/-. In all, Rs.2,00,000/- was spent in acquiring the property

covered by Ex.B1, since stamps worth Rs.22,200/- were purchased on

which the sale deed was prepared and Rs.1,226/- was the registration fee

paid thereon. D.W.2-Sri M.V.S.Subrahmanyam Sarma had sold this

property under Ex.B1. He is the son of Sri Rama Koteswara Rao. The

appellate Court considered mode of acquisition of this property, though it

stood in the name of the 1st appellant and came to the conclusion that

this property was purchased from the funds provided by not only the 1st

appellant but also contributed by Sri Ramesh Babu equally.

25. In arriving at such conclusion, the learned appellate Judge took

into consideration the testimony of the 1st respondent as P.W.1, who

stated that she had given away Rs.1,00,000/- out of her pension amount

to acquire this house by her son Sri Ramesh Babu. This statement though

elicited in cross-examination at the trial, was not taken into account by

the learned appellate Judge on the ground that it was not the pleaded

case of the 1st respondent in the plaint. Thus, the fact that such statement

was elicited in cross-examination on behalf of the appellants was ignored

by the learned appellate Judge nor was considered in proper perspective

to draw such conclusion.

MVR,J S.A.No.248, 854 of 2011

26. Another circumstance considered by the learned appellate

Judge was that this property was purchased from Sri Rama Koteswara

Rao, which fact was informed to her by her son. Sri Rama Koteswara Rao

is none other than the father of the vendor under Ex.B1 and there is

nothing unusual when P.W.1, namely, the 1st respondent, referred to such

fact.

27. The appellate Judge also took into consideration the

background of the parties in this context including the emoluments drawn

by the 1st appellant as Matron of B.C.Girls Welfare Hostel. She was

drawing a salary of Rs.2,500/- probably at the time of Ex.B1 transaction

and when she deposed in trial court on 31.08.2004, her statement in

cross-examination reflected that she was drawing Rs.9,650/- towards

salary. By then her husband was working as an Engineer at Kanigiri in

Panchayat Raj Department.

28. Further consideration was given by the appellate Court to

contribution of the deceased Sri Ramesh Babu to maintain his family,

basing on the statement of the 1st appellant as D.W.1 that he was

spending balance amount on his parents, who were after him for money

and who were not maintaining cordial terms with him. The fact that the

terms between the 1st respondent and Sri Ramesh Babu being strained

was not the pleaded case of the appellants in the written statement nor

any material was placed to support such statement of D.W.1.

29. Further consideration was given by the appellate Court to the

family background of D.W.1 and that her father had four (04) daughters,

who was working as Head Master, who performed their marriages. The

version of D.W.1 that her father contributed money for purchase of this

item basing on the probabilities was disbelieved.

MVR,J S.A.No.248, 854 of 2011

30. Item No.2 of the plaint A-schedule properties, undisputedly

was allotted to one Sri Ch.Singaiah by the A.P.Housing Board at Ongole.

Ex.X1 to Ex.X5 were produced at the trial by D.W.3, who was then an

employee of A.P.Housing Board at Ongole. The learned appellate Judge

considered the nature of this transaction in acquiring this property in the

name of the 1st appellant under Ex.B2 sale deed dated 21.08.2002. It was

purchased by Sri Ch.Singaiah as seen from Ex.X1 agreement dated

24.08.1982 from A.P.Housing Board, who had executed a registered

special power of attorney in favour of Sri G.Baskar Rao on 29.03.1995,

who inturn sold this house under Ex.X3 agreement of sale dated

18.07.1997 for Rs.2,10,000/- to the 1st appellant.

31. This property was acquired after death of Sri Ramesh Babu.

The learned appellate Judge considered payments made to A.P.Housing

Board in between 29.03.1995 and 21.12.1998 of Rs.1,06,000/- and that

Rs.1,10,262/- was paid after death of Sri Ramash Babu. The appellant

Court held that it was acquired from the own funds of the 1st appellant

and the contribution of Sri Ramesh Babu equally.

32. Thus, on such basis, the learned appellate Judge drawn

conclusions that the 1st respondent stood entitled for 1/8th share in these

two items.

33. In respect of Item No.3 of the plaint A-schedule, the version of

the 1st appellant that she sold away this site to a third party under

registered sale deed dated 25.10.2002 after purchasing it from

Sri N.Damodara Reddy under registered sale deed dated 13.08.1990 was

considered. The learned appellate Judge held that it was not available for

partition and the third party purchaser has not been made a party to the MVR,J S.A.No.248, 854 of 2011

suit. Thus, it was held by the learned appellate Judge that the 1st

respondent cannot claim any share in item No.3 of the plaint A-schedule.

34. Smt. A.Anasuya, learned counsel for the appellants, drawing

attention of this Court to these observations of the learned appellate

Judge particularly referring to item Nos. 1 and 2 strenuously contended

that it is neither the case of the parties pleaded nor evidence was let in at

the trial to the effect that there were contributions by Sri Ramesh Babu

and the 1st appellant equally in acquiring these properties. Very basis of

the findings of the learned appellate Judge as if these items are the joint

family properties is unsustainable, according to the version of the learned

counsel for the appellants, since there was no joint family nor such

question arises and therefore, the findings so recorded are not only

improper but also perverse.

35. With reference to item No.3, Smt. Anasuya, learned counsel for

the appellants, contended that since the claim of the 1st appellant is

negatived, there is no necessity to consider share claimed by the 1st

respondent in this item.

36. As seen from the material either pleaded or let in at the trial,

the definite case of the 1st respondent was that all the items in plaint

A-schedule were purchased by her son Sri Ramesh Babu, which formed

his estate and therefore, she is entitled for 1/4th share therein. Contra to

such contention, it was the version of the appellants as well as the 2nd

respondent either in the pleadings or at the trial that they were all

absolute acquisitions of the 1st appellant with her own funds

demonstrated by Ex.B1 and Ex.B2 in relation to items 1 and 2

respectively. Issues were also settled on such score basing on the

pleadings.

MVR,J S.A.No.248, 854 of 2011

37. In these circumstances, when it was never the case of either

party, when propounded by the learned appellate Judge in the appeal, as

rightly contended by Smt. A.Anasuya, learned counsel for the appellants,

the finding so recorded should be held perverse and without any basis. As

rightly contended for the appellants, in view of the case set up by both

the parties, it is not an instance of the properties of joint Hindu family,

which is sought to be divided requiring devolution by succession. The

appellate Court could not have made out a new case which both the

parties did not intend nor present.

38. No presumption as such could have been drawn and applied by

the learned appellate judge nor does any material posits contribution by

Sri Ramesh Babu to acquire these properties. At the same time, having

regard to the circumstances under which the 1st appellant was placed with

no source of proved income other than her meager salary by the date of

acquisition of these properties, it is required to consider, if she could have

purchased them under Ex.B1 and Ex.B2 sale deeds.

39. Setting aside these findings recorded by the appellate Court, in

the circumstances though required, they do not altogether lead to hold

that the claim of the 1st respondent for these properties is impermissible.

Admittedly, she is entitled to a share in the estate of her deceased son as

class-I heir and in this context the nature of acquisition of these properties

by the 1st appellant require deeper consideration.

40. With reference to item No.3 of the plaint schedule properties

even there being no registered sale deed either in respect of purchase in

the name of the 1st appellant nor in respect of its alleged subsequent sale

by the 1st appellant to a third party on record the learned appellate Judge

had inferred that this Item No.3 was not available for partition by the date MVR,J S.A.No.248, 854 of 2011

of institution of the suit. This is another perverse finding which requires

interference, since this Court can draw such authority in terms of Order-

41, Rule-33 CPC as is made applicable by Order 42 CPC.

41. Therefore, the ultimate conclusion is that, this matter has to be

remitted to the 1st appellate Court for fresh consideration basing on the

material, while setting aside the findings recorded by the learned

appellate Judge in the impugned judgment and also the decree passed in

both these appeals.

42. In the result, these two second appeals are allowed, setting

aside the decrees and common judgment in A.S.No. 148 of 2005 and

A.S.No.19 of 2006 of the learned I Additional District Judge, Prakasam at

Ongole. The learned I Additional District Judge, Prakasam at Ongole is

directed to take these two appeals under the same serial numbers on file,

issue notices to all the parties to these appeals, hear them once again

with reference to plaint A-schedule properties only and dispose them of in

accordance with law. The learned appellate Judge shall not take into

consideration any of the observations recorded earlier in common

judgment in these two appeals dated 04.10.2010 and also observations in

this common judgment. The learned appellate Judge is directed to dispose

them of preferably within a period of six (06) months subject to

permissible limits under Covid-19 situation. There shall be no order as to

costs.

As a sequel, pending miscellaneous petitions, stand closed. Interim

Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:01.09.2021 RR MVR,J S.A.No.248, 854 of 2011

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL Nos.248 & 854 of 2011

Dt:01.09.2021

RR