Andhra Pradesh High Court - Amravati

K. Kariyanna vs Muddamma on 30 April, 2022

          HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 SECOND APPEAL No.533 of 2019

JUDGMENT:

Plaintiff is the appellant in the above second appeal.

Aggrieved by the judgment and decree dated 29.04.2019 in

A.S.No.71 of 2017 on the file of II Additional District Judge,

Anantapuramu, confirming the judgment and decree dated

27.02.2017 in O.S.No.68 of 2007 on the file of Junior Civil

Judge, Madakasira.

2. For the sake of convenience and brevity, the parties herein

are referred to as they are arrayed in the suit.

3. Plaintiff filed suit against the defendants to annul the sale

deed dated 08.02.1974 executed by Balamma in favour of

Maregowd, husband of 1st defendant and father of defendants 2

to 6.

4. In the plaint, it was contended interalia that Balamma is

the absolute owner of the suit schedule property of an extent of

Ac.6.08 cents in S.No.783-2A of Rolla village; that during her life

time, she executed a registered Will in favour of the plaintiff on

19.11.2003 and she died on 26.11.2003, thereby the plaintiff

became absolute owner of the plaint schedule property; that the

testatrix of the Will Balamma during her life time, indebted to

many creditors; that one Kariyanna filed suit O.S.No.51 of 1974

on the file of District Munsif, Madakasira against Balamma for

recovery of certain amount on the foot of a promissory note and

the said suit was decreed on 05.11.1974; that at the advice of

Maregowd, Balamma had nominally executed a sale deed dated

08.02.1974 in favour of Maregowd without receiving any

consideration and without delivering possession of the suit

schedule property with a view to protect the property from the

reach of creditors; that Kariyanna also filed I.P.No.17 of 1974 on

the file of Subordinate Judge, Anathapuramu to declare

Balamma as insolvent and the same was allowed on 18.12.1979

declaring Balamma as insolvent; that the Insolvency Court

appointed an official receiver to manage her properties; that the

official receiver filed O.P.No.40 of 1981 on the file of Subordinate

Judge, Penukonda to annul the sale deed executed by Balamma

in favour of Maregowd; that Maregowd died and his legal

representatives came on record pending O.P.; that the O.P. was

decreed declaring the sale deed dated 08.02.1974 executed by

Balamma in favour of Maregowd as null and void as it is as

fraudulent transaction; that assailing the same, defendants 1 to

6 filed appeal A.S.No.7 of 1994 on the file of Additional District

Judge, Hindupur and the said appeal was dismissed; that

assailing the same, C.R.P.No.4071 of 1999 on the file of High

Court of A.P., was filed; that by order dated 19.06.2011, the

High Court allowed the C.R.P., whereby the order of Subordinate

Judge, Penukonda in O.P.No.40 of 1981 as confirmed in

A.S.No.7 of 1994, were set aside; that though official receiver

was appointed in I.P.No.17 of 1974, he never took possession of

the suit schedule property and the schedule property continued

to be in possession of Balamma and later by plaintiff. Hence,

filed the suit to annul the sale deed dated 08.02.1974.

5. 1st Defendant filed written statement and contended

interalia that they filed suit O.S.No.12 of 2002 on the file of

Junior Civil Judge, Madakasira against the plaintiff and also

filed I.A.No.76 of 2002 seeking ad-interim injunction in respect

of suit schedule property and the trial Court granted injunction;

that assailing the said order in I.A.No.76 of 2002, plaintiff filed

C.R.P.No.6849 of 2004 and the order of the lower Court was

confirmed in C.R.P; that the present suit is not maintainable

and it becomes subjudice; that Balamma being owner of the suit

schedule property gave an affidavit in favour of Maregowd in the

presence of advocate notary stating that she sold the suit

schedule property to Maregowd; that suit is not maintainable

without seeking for declaration and prayed the Court to dismiss

the suit.

6. During the trial, plaintiff examined himself as P.W.1 and

got examined P.W.2. Exs.A-1 to A-10 were marked. On behalf of

defendants, 2nd defendant examined himself as D.W.1 and got

examined D.W.2. Exs.B-1 to B-3 were marked.

7. Trial Court after evaluating the oral and documentary

evidence, dismissed the suit vide judgment dated 27.02.2017.

Aggrieved by the same, plaintiff filed A.S.No.71 of 2017 on the

file of II Additional District Judge, Anantapuramu. Lower

appellate Court, being final factfinding Court after framing

necessary points for consideration, dismissed the appeal by

judgment dated 29.04.2019. Assailing the same, the above

second appeal is filed.

8. Pending second appeal, 2nd respondent died and his legal

representatives were brought on record as respondents 7 to 10

as per orders in I.A.No.1 of 2022 dated 25.03.2022.

9. Heard Sri P.Narahari Babu, learned counsel for appellant.

10. Learned counsel for the appellant would contend that the

trial Court failed to consider the crucial documents Exs.A-7 to

A-9 in proper perspective. He would also contend that appellant

proved Ex.A-7 registered Will and hence, he can maintain suit

for annulment of sale deed dated 08.02.1974. He would further

contend that the appellant established Ex.A-7 Will and Ex.A-1 is

sham and nominal document and thus, prayed the Court to

allow the second appeal.

11. The following are substantial questions of law arise for

consideration in the second appeal:

1) Whether the non-executant of the document can file suit to cancel the document without asking for declaration?

2) Whether the suit is barred by time?

3) Whether Ex.A-1 is nominal and sham document and it was not acted upon?

12. Dealing with the scope of Section 100 of CPC, the Hon'ble

Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann

(Dead) By Lrs. and Ors.1 held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976

1 (2001) 4 SCC 262

introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."

13. The Hon'ble Apex Court in Yadavarao Dajiba Shrawane

Vs. Nanilal Harakchand Shah (Dead) and Ors.2 held thus:

"From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis- interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High

2002 (6) SCC 404

Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."

14. In Leela Soni vs. Rajesh Goyal3, the Hon'ble Apex Court

held thus:

"21. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

15. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal4,

held thus:

2001 (7) SCC 494

AIR 2009 SC 1481

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding

prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

16. In the light of the law laid down by the Hon'ble Apex Court

on the scope of interference by the High Court in second appeal,

this Court while exercising jurisdiction under Section 100 of

CPC must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Court are

perverse and contrary to the evidence on record.

17. Undisputed facts are that the plaint schedule property

belonged to Balamma. Kariyanna filed suit O.S.No.51 of 1974

against Balamma and the said suit was decreed on 05.11.1974.

Kariyanna also filed I.P.No.17 of 1974 to declare Balamma as

insolvent and the same was allowed on 18.12.1979 adjudicating

Balamma as insolvent. The Court also appointed official

receiver to manage the properties and the official receiver filed

O.P.No.40 of 1981 to annul the sale deed executed by Balamma

in favour of Maregowd. The said O.P. was ordered declaring the

sale deed dated 08.02.1974 as null and void. Against the said

order in O.P.No.40 of 1981, defendants 1 to 6 filed appeal

A.S.No.7 of 1994 on the file of Additional District Judge,

Hindupur and the same was dismissed. Aggrieved by the same,

C.R.P.No.4071 of 1999 on the file of High Court was filed. By

order dated 19.06.2011, the High Court allowed the C.R.P,

whereby the orders of the Subordinate Judge, Penukonda in

O.P.No.40 of 1981 and orders of Additional District Judge,

Hindupur in A.S.No.7 of 1994 were set aside.

18. It is pertinent to note here that Balamma during her

lifetime never challenged the sale deed dated 08.02.1974 as null

and void or the sale was obtained by playing fraud, when

Kariyanna filed I.P.No.17 of 1974 to declare as insolvent and the

same was ordered. The insolvency Court also appointed an

official receiver to manage the properties and the official receiver

got filed O.P.No.40 of 1981 to annul the sale deed executed by

Balamma in favour of Maregowd and it was allowed. Against

the said order, defendants filed A.S.No.7 of 1994 on the file of

Additional District Judge, Hindupur and the same was

dismissed. Aggrieved by the same, C.R.P.No.4071 of 1999 was

filed and the same was allowed setting aside the orders of the

Courts below.

19. Defendants filed suit O.S.No.12 of 2002 on the file of

Junior Civil Judge, Madakasira against the plaintiff seeking

perpetual injunction and also filed I.A.No.76 of 2002 for grant of

ad-interim injunction and the same was granted. Against the

said order, when the plaintiff filed C.R.P.No.6849 of 2004 and

the same was dismissed.

20. Whether the suit filed for cancellation of sale deed

dated 08.02.1974 by the non-executant is maintainable

without asking for declaration of title?

21. The Hon'ble Apex Court in Suhrid Singh Vs. Randhir

Singh and Ors.5, held thus:

"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' -- two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the

AIR 2010 SC 2807

deed executed by 'A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding.

22. In view of the law declared by the Hon'ble Apex Court, suit

filed by the plaintiff to annul the sale deed is not maintainable.

23. The executant of the document during her lifetime did not

challenge the document.

24. The sale deed was executed on 08.02.1974 in favour of

Maregowd. When the sale deed was declared as null and void in

I.P. proceedings, defendants in the suit carried the matter upto

the High Court vide C.R.P.No.4071 of 1999 and the same was

allowed setting aside the proceedings in I.P. as well as lower

appellate Court, thereby the sale deed was restored.

25. Apart from that to cancel the registered sale deed, suit has

to be filed within three years. Sale deed is dated 08.02.1974