Yeluru Paidaiah And 2 Others vs Gadiyakari Subba Lakshmi And 3 ...
2021 Latest Caselaw 3341 AP

            HON'BLE SRI JUSTICE M. VENKATA RAMANA

                   SECOND APPEAL No.466 of 2018
JUDGMENT:

The defendants 1 to 3 are the appellants. The 1st respondent is the

plaintiff. The respondents 2 to 4 are the defendants 4 to 6.

2. The 1st respondent laid the suit for partition and for mesne

profits against the appellants as well as the other respondents.

3. Plaint A-schedule consists of two house sites. Plaint B-schedule

consists of a Mango garden of about Ac.3-00 and odd.

4. The parties are closely related. The 1st respondent, the

appellants and the respondent Nos.2 and 3 are children of Sri

Nancharayya. Smt.Golukonda Rukmini is also their sister and her branch is

now represented by the 4th respondent, since it is stated that her

whereabouts is not known.

5. Sri Nancharayya died in the year 1999. His wife Smt. Gopamma

died in the year 1989.

6. Claiming that she is entitled to a share in plaint 'A' and 'B'

schedule properties, the 1st respondent got issued a legal notice on

14.11.2008 demanding partition of the plaint schedule properties. She

also stated that while the appellants have been managing these properties

after death of her father Sri Nancharayya, the usufruct from them,

particularly the Mango garden in B-schedule was being shared till the year

2007 and thus, she claimed being in joint possession and enjoyment of

these properties. On such basis, since her demand for partition was not

complied, she laid the suit for partition requiring the plaint schedule

properties to be divided into seven (07) equal shares and to allot one such

share to her as well as for future profits.

MVR,J S.A.No.466 of 2018

7. The respondents 2 to 4 remained ex parte at the trial stage.

Whereas the appellants predominantly had set up a defence that there

was an oral partition in the family among Sri Nancharayya and themselves

and later the same was reduced to writing through an instrument of

partition dated 25.07.1996. They further contended that their sisters were

paid cash in lieu of their share and that the plaint schedule properties

were equally allotted to the appellants. They also denied that the plaintiff

and other sisters were in constructive and joint possession of the plaint

schedule properties.

8. On the pleadings, the trial Court settled the following issues for

trial:

"1. Whether there was already partition among D1 to D3 and their father?

2. Whether the shares of plaintiff, Defendants 4 to 6 were given by cash prior to the partition among the defendants 1 to 3 and their father?

3. Whether the plaintiff is entitled for the partition as prayed for?

4. To what relief?"

9. The parties went to trial where the 1st respondent examined

herself as P.W.1 and her husband as P.W.2. While the 1st and 3rd

appellants examined themselves as D.W.1 and D.W.2 respectively and

another witness as D.W.3. On behalf of the 1st respondent, Ex.A1 to Ex.A3

were marked. While no documents were exhibited on behalf of the

appellants.

10. Considering the material and evidence, the learned trial Judge

by the decree and judgment dated 10.04.2012 directed division of these

properties as prayed passing a preliminary decree.

MVR,J S.A.No.466 of 2018

11. The appellants preferred appeal against this decree and

judgment in A.S.No.38 of 2012 on the file of the Court of the learned

IX-Additional District Judge (FTC), Krishna at Machilipatnam. By decree

and judgment dated 22.03.2018, the learned appellate Judge dismissed

the same confirming the decree and judgment of the trial Court agreeing

with the findings recorded therein.

12. In these circumstances, the present second appeal is filed.

13. Sri Sai Gangadhar Chamarthy, learned counsel for the

appellants, addressed arguments on their behalf. Sri M.Chalapathi Rao,

learned counsel for the 1st respondent, addressed arguments on her

behalf and it is an assignment to him under Legal Aid Scheme.

14. This second appeal was admitted on 27.04.2018 on the

following substantial questions of law.

"1.Whether the Court below properly interpreted the provisions of Amended Act 2004 of Hindu Succession Act?

2. Whether the decree and judgment of the Appellate Court is in accordance with Ordedr-41, Rule-31 CPC?

3. Whether the suit is maintainable in the light of death of father of the plaintiff in 1998 i.e. much prior to the amendment Act 2004 of Succession Act?"

15. The predominant consideration in this second appeal is the

effect of the nature of the claim of the 1st respondent against her

brothers, namely, the appellants for division of the plaint schedule

properties and if she is entitled to, as a Class-I legal heir of Sri Late

Nancharayya- their father.

16. During the course of hearing in this second appeal, Sri Sai

Gangadhar Chamarthy, learned counsel for the appellants, fairly stated MVR,J S.A.No.466 of 2018

that the right of the 1st respondent to lay the suit for partition against

other members of the family, namely, her sisters and brothers, is now well

settled by the decision of the Hon'ble Supreme Court in Danamma alias

Suman Surpur and another vs. Amar and others1 and therefore, the

3rd substantial question of law stated above did not survive consideration.

This question in effect includes the 1st substantial question of law relating

to application of amended provisions of Hindu Succession Act, 2005.

17. Sri Sai Gangadhar Chamarthy, learned counsel for the

appellants, contended that the substantial question to consider in this

second appeal is only the 2nd question, namely, application of Order-41,

Rule-31 CPC by the appellate Court and that the present instance is,

where the submissions on behalf of the appellants were not properly

adverted to by the learned appellate Judge. Thus, the learned counsel for

the appellants requests to remand this matter to the 1st appellate Court

for reconsideration within a definite time frame.

18. However, Sri M.Chalapathi Rao, learned counsel for the 1st

respondent, referring to the material on record as well as the evidence

including certain admissions brought out in the course of trial from the

material witnesses, with equal force contended that this is not a case

where the appellate Court did not bear in mind Order-41, rule -31 CPC

while considering the reasons assigned in the judgment of the trial Court

and therefore, the sole ground urged on behalf of the appellants also did

not require consideration nor it amounted to a substantial question of law

attracting Section 100 CPC for this Court to determine. Sri M.Chalapathi

Rao, learned counsel, further contended that, having regard to age of the

.(2018)3 SCC 343 MVR,J S.A.No.466 of 2018

parties, who mostly are senior citizens, remitting the matter to the

1st appellate Court is not a desirable exercise nor the circumstances in this

case deserve such requirement.

19. Since the entitlement of the 1st respondent to lay a suit for

partition against her brothers and sisters is no more in dispute, the claim,

considered by both the Courts below, needs attention and to make out if

the first appellate Court considered the reasons assigned by the trial Court

appropriately.

20. Sri Sai Gangadhar Chamarthy, learned counsel for the

appellants, relied on the judgment of the Hon'ble Supreme Court in

support of his contention as to application of Order-41, Rule-31 CPC when

an appeal is being considered in terms of Section 96 CPC, in Malluru

Mallappa (dead) through Legal Representatives vs. Kuravathappa

and others2. Referring to the effect of Order-41, Rule-31 CPC, in Para-13

to Para-15, it is stated as under:

"13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v.Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v.Rangaswamy Chettiar[Sri Raja Lakshmi Dyeing Works v.Rangaswamy Chettiar, (1980) 4 SCC 259]].

. 2020(4) SCC 313 MVR,J S.A.No.466 of 2018

14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.

15. Order 41 Rule 31 CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order 41 Rule 31 CPC is as under:

"31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.""

21. After referring to the effect of Vinod Kumar vs. Gangadhar

((2015)1 SCC 391), which in turn considered in B.V.Nagesh Vs.

H.V.Srinivasa Murthy ((2010)13 SCC 530) as well as Shasidhar vs.

Aswin Uma Mathad ((2015)11 SCC 269), in Para-18 it is stated thus:

"18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice."

22. Sri M.Chalapathi Rao, learned counsel for the 1st respondent,

while adverting to these observations of the Hon'ble Supreme Court

answering the contention of Sri Sai Gangadhar Chamarthy, learned

counsel for the appellants, referred to requirement of the appellate Court

when it is agreeing with the views of the trial Court on evidence, not to

restate the effect of evidence and reiterate reasons assigned by the trial

Court. The expression of general agreement with the views of the trial MVR,J S.A.No.466 of 2018

Court, as observed by the Hon'ble Supreme Court, is also relied on by the

learned counsel for the 1st respondent in this context. The learned counsel

for the 1st respondent further contended that the judgment of the

appellate Court is meeting all these requirements and therefore, this

ground pointed out by the learned counsel for the appellants did not

require attention or consideration.

23. The main requirement to comply the mandate of Order-41,

Rule-31 CPC is settling points for determination in terms thereof. The

learned appellate Judge, in Para-11, framed only one point for

determination in relation to acceptability or otherwise of the judgment and

decree of the trial Court. Specific points for determination, basing on the

material and evidence considered by the trial Court, were not settled for

this purpose. If such requirement had been brought out, technically it

would have been in compliance with major requirement of Order-41, Rule-

31 CPC. At the same time, it should not be forgotten that the learned

appellate Judge referred to the issues settled by the trial Court for

consideration and determination on which the learned trial Judge recorded

specific findings.

24. When the judgment of the appellate Court considered such

questions, which were settled by the trial Court for its determination

through the issues and recorded specific findings it cannot be stated that

omission to frame specific points for determination is a serious irregularity

amounting to an illegality making a serious departure from this mandatory

requirement of law. When the judgment of the appellate Court is

considered, in the light of these factors, it does not make out that specific

issues considered by the learned trial Judge were not addressed.

MVR,J S.A.No.466 of 2018

25. The predominant consideration on the material including the

evidence in this case is the effect of the alleged prior partition during the

lifetime of Sri Nancharayya supposed to be evidenced by an instrument of

partition dated 25.07.1996, discussed by the learned appellate Judge. In

that process, the factors and circumstances that weighed with the learned

trial Judge were also considered by the learned appellate Judge,

expressing general agreement with the findings recorded by the learned

trial Judge.

26. Admitted situation is that the plaint schedule properties are

ancestral in nature, which were inherited by Sri Nancharayya from

ancestral source. It is an admission in the pleadings itself of the

appellants, which was considered rightly by the trial Court as well as the

appellate Court.

27. The prior partition set out by the appellants, when stated as

the one evidenced by an instrument of partition, as rightly contended for

the 1st respondent, it should be exhibited at the trial as primary evidence.

Obviously, for the reason that, it being an unstamped and unregistered

instrument, rather it was not allowed to be exhibited at the trial stage,

which factor is recorded by the learned appellate Judge. The best

evidence, in support of that contention of the appellants, could have been

produced at the trial nor there was possibility of introducing the same in

evidence.

28. Apart from this significant factor, the Courts below also took

into consideration the admission of the 3rd appellant, who was examined

as D.W.2, that the profits from the plaint B-schedule property were shared

with his sisters till the year 2007. This fact is recorded in para-16 of the MVR,J S.A.No.466 of 2018

judgment of the trial Court as a part of admission of D.W.2. If really, there

was partition during the lifetime of Sri Nancharayya by July, 1996, sharing

such profits till the year 2007 cannot arise and it was not even a distant

possibility.

29. These circumstances did drive the last nail into the defence of

the appellants. Questions relating to identity of property are impermissible

in a suit for partition. Nor availability of other properties of this family for

division was specifically supported at trial by adducing evidence by the

appellants.

30. When the defence so set up by the appellants stood rejected,

the course left is to direct partition of the properties, demanded by the 1st

appellant. This demand is also evidenced by Ex.A1 legal notice issued on

her behalf prior to the institution of the suit.

31. When all these factors and circumstances were considered by

both the Courts below, consistently and concurrently, it is no more open

for this Court to reconsider these questions, which are of fact, while

exercising jurisdiction under Section 100 CPC.

32. Therefore, finding that there is sufficient compliance with

Order-41, Rule-31 CPC in bringing out its judgment by the learned

appellate Court, that stands in consonance with the observations of

Hon'ble Supreme Court in Malluru Mallappa referred to supra, the

substantial question of law sought to be projected on behalf of the

appellants did not remain for consideration and determination in this

second appeal. Even otherwise, the findings recorded, by the trial Court

as well as the appellate Court, on question of fact considered above, MVR,J S.A.No.466 of 2018

indicated that there is no reason for this Court to reconsider the matter

nor that this matter requires remittance to the first appellate Court as

sought to be made out by the learned counsel for the appellants. Age of

the parties, as rightly pointed out by the learned counsel for the 1st

respondent, is a factor deserving appropriate attention.

33. Accordingly, this second appeal is dismissed, confirming the

decrees and judgments of both the Courts below. Having regard to the

close relationship among the parties, they are directed to bear their own

costs throughout. Interim Order dated 27.04.2018, restraining passing of

final decree in I.A.No.2 of 2018, stands vacated and the trial Court is

directed to proceed further with the final decree application.

As a sequel, pending miscellaneous petitions, stand closed.

________________________ JUSTICE M.VENKATA RAMANA Dt:03.09.2021 RR MVR,J S.A.No.466 of 2018

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.466 of 2018

Dt:03.09.2021

RR