Tuboti Venkateswarlu Died vs Rayasam Madhava Rao
2022 Latest Caselaw 95 AP

    THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

               APPEAL SUIT No.2592 OF 2000

JUDGMENT:-

        The deceased/1st appellant had filed O.S.No.348 of

1987, against the defendants/respondents in the present

appeal in the Court of the Additional Senior Civil Judge,

Guntur for possession of plaint - A schedule property, and for

future profits from the date of suit to date of possession. (The

parties are referred as they are arrayed in the plaint.) The said

schedule consisted of two items of property. Item No.1 was a

house property, in an extent of 200 sq.yards of land within

Guntur Municipal area. Item No.2 was agricultural land, to

an extent of Ac.1.50 cents in D.No.335/A of Govindapuram

Village, Guntur District. This suit was filed as a suit in

informa pauperis, by way of O.P.No.257 of 1986. The suit was

taken up and in the course of the proceedings, the 1st plaintiff

passed away and his son was brought on record as the 2nd

plaintiff, by way of an order dated 16.08.1999 in I.A.No.808 of

1999.

2. The case of the plaintiffs is that the 1st plaintiff

had a brother viz., Tubeti Sriramulu @ Pullaiah, who was

married to one Veeramma. Upon the death of Sriramulu after

a short married life, Veeramma continued to reside with the

joint family and on her request, she had been paid funds out

of the joint family funds towards her maintenance. She in

turn acquired schedule property, by using this maintenance

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money and the plaintiffs and their family members have been

assisting her whenever she required help. While matters stood

thus, the 1st defendant, who is the son of the brother of

Smt.Veeramma and the 2nd defendant, who is the wife of the

1st defendant, with a view to grab the properties of

Smt.Veeramma, had taken advantage of the incapacitated and

mentally weak stage of Smt.Veeramma in the last years of her

life to obtain conveyance of her property in their favour.

Having came to know of these attempts, the 1st plaintiff

issued a notice dated 24.03.1986, to the defendants that any

attempt to transfer the properties of Smt.Veeramma, by the

defendants would be resisted and any document brought into

existence by playing fraud, coercion or misrepresentation or

forgery would not have any legal validity. The 1st defendant

after receiving this notice, sent a reply through an advocate on

14.04.1986, denying the allegations of the 1st plaintiff.

3. Smt.Veeramma died intestate on 14.08.1986 and

her death ceremonies were carried out hurriedly without

informing the 1st plaintiff about the said demise. The 1st

plaintiff claiming that he becomes legal heir to the properties

of Smt.Veeramma, filed the suit, for possession of the A-

schedule properties as the defendants had taken unlawful

possession of the A-Schedule property, by attorning the leases

of the tenants situated in these properties in their favour.

4. The defendants filed their written statement

denying all these allegations. It is the case of the defendants

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that Smt. Veeramma, who separated from the family of the

plaintiffs when she was about 15 years old or so, had stayed

in the house of her parents at Guntur and had purchased A-

schedule properties, out of the proceeds of her wages as a

cook and that there was no relationship between late Smt.

Veeramma and her husband's family. As the defendants were

looking after late Smt. Veeramma, she, out of her affection

towards the 2nd defendant, executed a Registered Settlement

Deed dated 06.03.1986, in favour of the 2nd defendant, in

respect of the suit schedule property, and as such, there is no

property which would devolve on the 1st plaintiff.

5. The trial Court framed the following issues.

1. Whether the settlement deed dated 06.03.1986 in favour of D2 is true, valid and binding?

2. Whether the plaintiff is entitled for recovery of possession of suit property?

3. To what relief?

6. After completion of trial and hearing the

arguments of both sides, the suit was dismissed by the trial

Court, by way of judgment and decree dated 01.11.1999.

Aggrieved by the said order of dismissal, the 2nd plaintiff has

filed the present appeal.

7. Heard Sri N. Subba Rao, learned counsel for the

appellant and Sri N. Chandradhara Rao, learned counsel for

the respondents.

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8. Sri N. Subba Rao, learned counsel for the

appellant assails the order of the trial Court on the following

grounds.

i) The trial Judge had proceeded on a fundamental mis-

conception that the burden of proof of demonstrating

title is on plaintiffs. The trial Judge ought to have

appreciated that once the defendants had set up a

settlement deed, the burden of proving the settlement

deed would fall on the defendants and not on the

plaintiff.

ii) The trial Judge did not take into account Ex.A3 which

demonstrates that the source of money with which late

Smt.Veeramma had purchased the suit schedule

property, was the money given to her out of the joint

family property. (Ex.A3 is a memo of payment of

permanent alimony to late Smt.Veeramma by the family

of the plaintiff)

iii) The trial Judge did not take into account the

inconsistencies made out in the depositions of D.Ws.1

to 5 in relation to the execution of the Settlement Deed

(Ex. B3) which are as follows:

a) D.W.1 states that at the time of the execution of the

Settlement deed, there were no other persons except

herself, her husband (DW5), her father, her brother

and the scribe.

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b) D.W.4 states that all the persons mentioned in the

document were present at the time of the

execution of the settlement deed.

c) The stamps were purchased on 6th March and the

document was prepared on that day. The Sub-

Registrar was brought to the house of late

Smt.Veeramma on 10th March, for execution of the

document. However, the document was not

executed on the ground that she was unwell.

Thereafter, the document was executed and

registered on 24.03.1986. The trial Judge did not

consider the contentions of the plaintiffs that her

refusal to sign the documents on 10th March was

because she was unwill to sign the document and

not she because unwell.

d) D.W.4, who is said to be the person who had

identified late Smt.Veeramma in the Registrar

Office had stated in his cross examination that he

was unaware whether the deed of settlement had

been registered or not. This statement which

throws a cloud over the entire registration process

had not been taken into account by the trial

Judge.

e) The trial Judge without taking any of these issues

in to account had held in paragraph No.11 of the

Judgment that the burden of proof has been

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discharged. This finding is clearly in violation of

paragraph Nos.14 and 19 of the Judgment of the

Hon'ble Supreme Court in Rangammal vs.

Kuppuswami and another1.

f) The 1st defendant in the reply affidavit of

14.04.1986 had stated that no documents were

obtained from Late Smt. Veeramma, while the

settlement deed is said to have been registered on

24.03.1986 itself. This vital discrepancy has been

glossed over by the trial Judge.

9. Sri N. Subba Rao, learned counsel for the

appellants submits that none of these issues had been taken

into account by the trial Judge while dismissing the suit and

as such, the judgment and decree of the trial Court requires to

be set aside. He further submits that the deed of settlement is

a void document and has to be eschewed even without any

prayer to that effect in the suit. He further submits that

viewed from any angle irrespective of the fact whether the

property purchased by late Smt.Veeramma was a joint family

property or absolute property of late Smt.Veeramma, the

plaintiffs would be the legal heirs of late Smt.Veeramma under

the provisions of Hindu Succession Act, 1955 and as such, the

suit needs to be decreed with a declaration of title in favour of

the plaintiffs and possession of the property along with mesne

profits has to be decreed.

AIR (2011) SC 2344

RRR,J A.S.No.2592 of 2000

10. Sri. N. Chandradhara Rao, learned counsel for the

respondents submits the following contentions in support of

the judgment of the trial Judge.

a) The theory of joint family set up by the plaintiffs

has not been demonstrated before this Court and

no evidence to show that it is joint family

property or that the suit schedule property has

been purchased out of joint family funds has

been placed before this Court.

b) Ex.A.3 receipt showing payment of permanent

alimony to late Smt.Veeramma is a document

dated 10.07.1930, for a sum of Rs.450/- whereas

the agricultural land was purchased by her on

30.07.1948 and the house property was

purchased by her on 07.07.1955. The

presumption that these properties were

purchased by her with the amount of Rs.450/-

given in 1930 has to be dismissed. In any event,

Section 14 of the Hindu Succession Act, 1955

clearly stipulates that any money given as

maintenance or alimony to a Hindu female

becomes her absolute property and the joint

family theory has to be given up in view of the

provisions of Section 14 of the Hindu Succession

Act.

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c) The cross examination of P.W.1 clearly shows

that there is no material placed before the Court

to show that late Smt. Veeramma ever lived with

the plaintiffs or that the plaintiffs had any cordial

relations with late Smt. Veeramma.

d) In the face of the deed of settlement which has

been marked in evidence, the suit is clearly not

maintainable as there was no prayer of

declaration or cancellation of settlement deed

and the only prayer is a prayer for possession

without declaration of title or setting aside of the

deed of settlement.

11. While there was an allegation against the deed of

settlement in the plaint, no mention is made relating to the

said Deed of Gift in the chief examination of P.W.1 nor was

any evidence put forward supporting the allegation in the

plaint and as such, the initial burden of proof on the plaintiffs

does not shift to the defendants in view of the Judgment of the

Hon'ble Supreme Court in Union of India vs. Vasavi Co-

operative Housing Society Ltd & Others.2

12. The case of the plaintiffs is that the consent of late

Smt. Veeramma was not free which would at best place the

deed of settlement in the category of a voidable document, as

defined under Section 19 of the Indian Contract Act, 1872. It

(2014) 2 SCC P.269

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is only if this document is set-aside, that relief can be granted

to the plaintiffs. The contention of the plaintiffs that such a

relief does not require to be sought is incorrect and it is only

void documents which need not be set-aside, by way of a

separate prayer.

13. Since the attestor and scribe to the deed of

settlement and the person who identified late Smt.Veeramma

in the registrar office have been examined by the defendants,

nothing further requires to be done by the defendants in

defense of their case.

14. Sri N. Subba Rao, learned counsel for the

appellants relied upon the Judgments of this Court in Jetty

Nagalakshmi Parvathi & Ors vs. Union of India3.,

(paragraphs 18,19 and 20) in relation to the issue of burden of

proof and the Judgment of the Hon'ble Supreme Court in

Union of India vs. Moksh Builders & Financiers Ltd., and

Ors.4

15. The undisputed facts in this case are that late

Smt. Veeramma had died intestate, being possessed of the suit

schedule property as the owner of the property.

16. The case of the plaintiff is that this property was

purchased by late Smt.Veeramma, out of the proceeds of the

corpus of the joint family property which was given to her and

as such, she was incompetent to execute a deed of settlement

2012 (1) ALD 331

AIR 1977 SC 409

RRR,J A.S.No.2592 of 2000

conveying these properties to any other person. In any event,

the said deed of settlement was obtained from her by undue

influence, coercion and fraud on the part of the defendants.

Consequently, the deed of settlement is to be ignored and

possession of the property should be given to the plaintiff on

account of the fact that they are the true and proper legal

heirs of late Smt.Veeramma either as coparceners or as legal

heirs to her personal property under the provisions of the

Hindu Succession Act, 1955.

17. The case of the defendants is that the property is

not joint family property and the properties belonging to late

Smt. Veeramma had already been settled in favour of the 2nd

defendant even before her demise and the plaintiffs cannot

succeed to the properties which had already been conveyed by

late Smt. Veeramma before her demise. Further, in the

absence of any relief of declaration of title or for setting aside

the deed of settlement, the plaintiffs cannot seek a relief of

possession of the property.

18. Section 14 of the Hindu Succession Act, 1955

stipulates that any property in the possession of a female

Hindu including movable and immovable property acquired by

such a female Hindu in lieu of maintenance or arrears of

maintenance becomes her absolute property.

19. In the circumstances, the question of whether the

property in the name of late Smt. Veeramma was a joint family

property or her own absolute property is answered by the

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above provision of law and it must be held that the suit

schedule property was the absolute property of late Smt.

Veeramma. Even otherwise, the only material placed before

this Court was the payment of Rs.450/-, under Ex.A.3, to the

father of Smt. Veeramma in the year 1930 while the properties

in question had been purchased a decade or so later and

Ex.A3 is not sufficient to make out a case of joint family

property.

20. As late Smt.Veeramma had died intestate, the

question of who would be the legal heirs entitled to inherit her

absolute property remains. Section 15 of the Hindu

Succession Act, 1955 stipulates that the property of a female

Hindu dying intestate would devolve firstly upon her children

and husband and secondly upon the heirs of her husband. In

the present case, the plaintiffs being the heirs of the husband

of Smt. Veeramma, would be the heirs to whom the property

held by Smt.Veeramma at the time of her death would devolve.

21. In the circumstances, the only issue left before

this Court is the effect of the deed of settlement on the

disposition of the property set out in the suit schedule.

22. This question, in view of the evidence and

arguments placed before this Court raises two issues.

1) Whether in the absence of the relief of seeking

declaration of title and setting aside the deed of

settlement, this Court is required to go into the

issue of the validity of the deed of settlement?

RRR,J A.S.No.2592 of 2000

2) Whether the deed of settlement executed by late

Smt.Veeramma in favour of the defendants is a

valid document which had been sufficiently

proved?

ISSUE NO.1:

23. The fact that there is a deed of settlement said to

have been executed by late Smt.Veeramma is within the

knowledge of both the plaintiffs as well as the defendants.

This fact is within the knowledge of the plaintiffs, at least by

the time of written statement of the defendants had been filed.

The prayer in this suit is for possession of the suit schedule

property and for mesne profits. No declaration of title to the

property was sought nor was any relief of setting aside the

deed of settlement sought.

24. It is the contention of the plaintiffs that no such

relief is necessary as those documents which are void abinitio,

do not require the plaintiffs to seek a relief of setting aside

these documents.

25. This stand is taken on the basis of two

contentions. Firstly, the property is joint family property and

late Smt. Veeramma was incompetent to convey these

properties to any third parties. Secondly, the said deed of

settlement was obtained by fraud, misrepresentation and

coercion and as such, is illegal and void abinitio and the

plaintiffs need not ask for any relief in this regard.

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26. As far as the first contention is concerned, this

Court has already arrived at a finding that the property

belonging to late Smt. Veeramma is her personal absolute

property and is not joint family property as such, the first

contention fails.

27. In reply to the 2nd contention Sri N.Chandradhara

Rao, the learned counsel for the respondents contends that

even if the stand of the plaintiffs that the deed of settlement

had been executed by way of fraud, misrepresentation or

coercion, is accepted, the same would only make the deed of

settlement a voidable document and not a void document and

unless the relief of setting aside the said document is sought,

the other prayers sought in the plaint cannot be granted.

28. The question of whether a document needs to be

declared by a Court to be invalid and not binding on the

plaintiffs before further relief can be sought by the plaintiffs

has come up before the Courts even earlier. The Hon'ble High

court of Madras in K. Tirupathi Mudali v. T. Lakshmana Mudali,

1952 SCC OnLine Mad 274 : AIR 1953 Mad 545 : (1953) 1 Mad LJ

123 at page 547 had held as follows:

15. (His Lordship after examining the evidence and holding that Ex. P. 1 was a real document intended to be given effect to stated): The next question is that if this document was not a mere sham and colourable transaction but a real one, could the plaintiffs ask for a mere declaration that they are entitled to the property without asking for the avoidance of that document? In my judgment, they cannot do it. The document not being void but only voidable will be valid till it is set aside and the plaintiffs without having it avoided cannot recover the property. In this case, there is no prayer for setting aside the sale deed and the reliefs asked for are the declaration mentioned above and recovery of possession of the property. Consequently they cannot recover possession of the property from the 1st defendant. It follows that the reliefs asked for cannot be granted

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and the suit has to be dismissed. The decision of the lower appellate Court decreeing the suit is unsustainable. Hence the appeal is allowed. In the circumstances of this case, I direct the parties to bear their own costs throughout. No leave.

29. The judgment of the Hon'ble Supreme Court in the

case of Thota Ganga Laxmi and Another vs. Government of

Andhra Pradesh and Others 5and the judgment of the

erstwhile High Court of Andhra Pradesh in Sannidhi

Ratnavathi vs. Arava Narasimha Murthy and Another6, are

essentially on the same lines.

30. These judgments have effectively held that in the

case of a void document, a party assailing such a document

need not seek its cancellation or a declaration that the said

document is not binding on the said party. Such a situation

does not arise in the case of a voidable document. To ascertain

whether the said document is void or voidable, a look at

Section 19 of the Indian Contract Act, which reads as follows,

is necessary:

19. Voidability of agreements without free consent.--When consent to an agreement is caused by coercion, 1*** fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.

Exception.--If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

(2010) 15 SCC 207

AIR 2004 AP 29

RRR,J A.S.No.2592 of 2000

Explanation.--A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practiced, or to whom such misrepresentation was made, does not render a contract voidable.

31. The contention of the Plaintiffs is that the deed of

settlement marked as Exhibit B-3, was obtained by fraud and

coercion. This would place the document in the category of

voidable documents as set out in section 19 of the Contract

Act. This would mean that the plaintiffs cannot seek recovery

of possession without seeking to set aside the said document.

No such prayer has been made and consequently, the suit

would have to be dismissed.

ISSUE NO.2:

32. The case of the Plaintiffs is that they are the legal

heirs of late Smt. Veeramma and on her demise succeed to all

her properties. The case of the Defendants is that she had

executed a deed of settlement in favour of the 2nd defendant

and as such the suit schedule properties belong to the 2nd

defendant.

33. The relationship between the Plaintiffs and late

Smt. Veeramma is admitted on all sides and as such the case

of the plaintiffs is made out. The assertion of the defendants

about the execution of the settlement deed is not admitted by

the plaintiffs. Accordingly, in view of section 101 of the

Evidence Act and in view of the judgements cited by Sri N.

Subba Rao, regarding burden of proof, the burden of proving

the execution of a settlement deed is on the defendants. The

defendants have marked the said deed of settlement dated

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06.03.1986 as Exhibit B-3. As already held above, the suit

schedule property was the absolute property of late Smt.

Veeramma and she was entitled to alienate it in any manner

she wanted. The question that now remains is whether the

said document has been proved or whether the objections

raised, about the said document, by the plaintiffs merit

acceptance and consequently the said document requires to

be rejected.

34. Exhibit B3 was marked by the 2nd defendant, who

was deposing as D.W.1. She also deposed that she was

present when late Smt. Veeramma has executed the said

document in her presence. D.W.2, who was the attestor of the

document also deposed that late Smt. Veeramma executed

Exhibit B3 and that he was also one of the attestors to the

document. D.W.3 was examined to depose that he was present

at the office of the sub registrar when late Smt. Veeramma

executed the deed of settlement marked as Exhibit B3. D.W.4

deposed that he was one of the attestors of the deed of

settlement, who saw that late Smt.Veeramma was the

executant of the deed of settlement marked as Exhibit B3. The

first defendant who was examined as D.W.5 also attested to

the same facts. The aforesaid statements of the witnesses are

sufficient to say that the initial burden of proof was discharged

by the defendants.

35. The burden of proof to show that the deed of

settlement (exhibit B3) had not been executed by late Smt.

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Veeramma or that the said execution was against her will now

shifts to the plaintiffs. This burden is sought to be discharged

by showing that the evidence of the witnesses on the side of

the defendants is so riddled with inconsistencies that the

entire evidence requires to be eschewed and that in any event

the deposition of these witnesses in cross examination is

enough to show that the deed of settlement was never

executed and does not bind the plaintiffs.

36. The discrepancies pointed out by the plaintiffs

have already been set out above. To my mind, these

discrepancies do not make out a case for rejecting the

execution and registration of the document itself. In fact, the

case of the plaintiffs is that the said document was obtained

by fraud or coercion. However, no evidence to make out a case

of fraud or coercion has been forthcoming. The only material

available to make out such a case is the fact that the sub

registrar was initially called to register the document on the

10th of March, 1986 but was asked to return on that day as

Smt. Veeramma was said to have been ill. The plaintiffs claim

that the actual reason for asking the sub registrar to return

was that Smt. Veeramma was unwilling to sign the document

and was resisting the attempts of the defendants to make her

sign the document. I am not willing to make that leap of faith

and draw such conclusions on the one fact that the deed of

settlement was not signed on the 10th of March, 1986. It must

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be held that the plaintiffs have not made out any case on facts

either.

37. In the circumstances, the appeal fails and is

accordingly dismissed with costs.

Miscellaneous petitions, pending if any, in this Appeal

Suit, shall stand closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 07-01-2022 RJS

RRR,J A.S.No.2592 of 2000

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

APPEAL SUIT NO.2592 OF 2000

Date : 07-01-2022

RJS