Yeleti Sridevi Manikumari, vs Malireddy Krishnaveni,
2022 Latest Caselaw 3214 AP

           THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                     Appeal Suit No. 84 of 2012

JUDGMENT:

This appeal is preferred against the judgment and decree, dated

15.09.2011, passed in O.S.No.699 of 2009 on the file of the Court of

the Principal Senior Civil Judge, Kakinada.

2. The suit is filed by the 1st respondent herein against respondent

No.2/1st defendant and the appellants 1 and 2/defendants 2 & 3 for

recovery of amount under four promissory notes, dated 18.05.2007,

21.05.2007, 22.05.2007 and 01.11.2007, all for an amount of

Rs.1,54,000/- each allegedly executed by the 1st defendant agreeing

to repay the same with interest @ 18% per annum. The plaintiff

fastened the liability against the defendants 2 and 3 who are the

daughters of the 1st defendant, on the ground that they have full

knowledge of the debts of the 1st defendant, yet created a partition

deed, dated 06.12.2008 to defeat and delay the debts lawfully due to

the plaintiff; and, as such, the partition deed is illegal, invalid and not

binding on the plaintiff. It is the further case of the plaintiff that the

1st defendant executed two gift deeds, dated 06.12.2008, in favour of

defendants 2 & 3 and thus, they are universal donees since there is no

other property to the 1st defendant and liable to the suit claim.

3. The 1st defendant filed written statement denying the suit claim

and the alleged promissory notes including borrowal of any amount

and further contended that Uppuluri Subba Rao who is the uncle of the

plaintiff lent Rs.1,50,000/- in 1998 and renewed the promissory notes

for higher amount by including compounded interest at his choice and

BSB, J A.S.No.84 of 2012

further that Uppuluri Subba Rao obtained such promissory notes in the

name of his family members and relatives and thus, the suit

promissory notes are not fully supported by consideration. It is also

further pleaded that the 1st defendant agreed to settle the debts due to

the plaintiff, but as this defendant sustained loss in the rice mill

business, the plaintiff filed the suit under an apprehension that the

defendants may avoid discharge of the debt and got attached the

properties of the defendants 2 & 3 intentionally knowing that this

defendant had given the properties to them at the time of their

marriages and since then they have been in possession and enjoyment

of the same and pattadar passbooks were also issued in their favour

long back and they have been paying land revenue in their names, but

no registered document was executed at that time. The 1st defendant

further contended that in the gift deeds, it is recited that the property

was already delivered and thus, the gift deeds are valid and not

executed to defeat the debt. Thus, the 1st defendant contended that

the defendants 2 & 3 are not liable to the suit claim. It is further

pleaded that after receipt of notice, there was a settlement between

the plaintiff and the defendant. The plaintiff intended to purchase the

rice mill or the land of this defendant, but subsequently, she turned

round and filed this suit only to cause loss to this defendant.

4. The 2nd defendant filed a separate written statement stating that

this defendant got married to Sri Yelati Srinivasu on 15.04.1992 and at

the time of her marriage, her father/1st defendant and her mother

gave item No.2 of the schedule property as pasupu-kumkuma to her

and subsequently, in the year 1995, she obtained pattadar passbook

and has been in possession and enjoyment of the property with

BSB, J A.S.No.84 of 2012

absolute rights and that she has been residing with her husband since

the marriage and the debts incurred by the 1st defendant do not bind

her. It is further pleaded that on 13.11.2008, the 1st defendant and

3rd defendant executed a gift settlement deed in respect of item No.2

of the suit schedule property in favour of this defendant and thus, the

1st defendant has no interest or right in this item of property.

However, knowing fully well of all these facts, the plaintiff got filed the

suit and illegally pressurizing for payment of the suit debts. She

prayed to dismiss the suit.

5. The 3rd defendant filed a separate written statement praying to

dismiss the suit on the ground that she was married to Masina

Srinivasa Rao @ Srinivasu, on 27.02.1994, and even by the date of

the marriage, she had acquired the property mentioned in item Nos.1

and 3 of the plaint schedule as it was devolved on this defendant as

her pasupu-kumkuma and later, she obtained pattadar passbook in the

year 1995 from the government and has been in possession and

enjoyment of the property as an absolute owner. She further

submitted that in view of the gift of properties in item Nos.1 & 3 of the

plaint schedule to her very long back and it is incorrect to state that

defendants 2 & 3 have become universal donees of the suit schedule

properties. She denied the suit claim stating it as false.

6. Basing on the above pleadings, the following issues are framed:

1. Whether the suit promissory notes dated 18.05.2007, 21.5.2007, 22.5.2007 and 01.11.2007 are true, valid, supported by consideration and binding on the defendants?

2. Whether the defendants 2 and 3 are proper and necessary parties for the suit and whether their properties are liable for suit claim?

BSB, J A.S.No.84 of 2012

3. Whether the plaintiff is entitled for recovery of suit amount from the defendants?

4. To what relief?

7. The plaintiff, apart from getting herself examined as PW1, one of

the attestors to the promissory note, by name Morampudi Sreenivas,

was examined as PW2. All four promissory notes were filed as exhibits

A1 to A4 and Photostat copy of the auction notice was marked as

exhibit A5 and Photostat copy of the partition deed, dated 06.12.2008,

was marked as exhibit A6. On behalf of the defendants, all three of

them were examined as Dws 1 to 3 respectively and no documentary

evidence was filed.

8. After hearing both sides, the trial Court decreed the suit with

costs against all the three defendants. Feeling aggrieved by the same,

the defendants 2 & 3 preferred the present appeal mainly on the

ground that since the properties were acquired by them as pasupu-

kumkuma at the time of their marriages very long prior to the alleged

date of borrowal of the suit amount, these debts do not bind them and

the suit is bad for mis-joinder of parties and further that they are not

universal donees since the 1st defendant has some other property.

9. Though notice was received by the 1st respondent/plaintiff and

2nd respondent, they have not entered appearance.

10. Heard Sri P.Girish Kumar, learned senior counsel appearing on

behalf of Sri G.Venkateswara Rao, learned counsel for the appellants.

11. Learned senior counsel reiterated the contents of the written

statement and the grounds alleged in the appeal. He further

submitted that in Second Appeal No.82 of 2020 before this Court,

BSB, J A.S.No.84 of 2012

between the same parties, in the similar issue, the claim of the plaintiff

that defendants 2 & 3 are universal donees and liability to the suit debt

has been rejected. That apart, he has drawn the attention of this

Court to the admission of PW1 that the 1st defendant has rice mill

property at G. Medapadu which is being run by himself and also house

at Medapadu where he is residing and further that she admitted that

he has a Maruti Car bearing No.AP5L 5252 and the lands also in his

name.

12. Section 128 of the Transfer of Property Act, 1882, states that

subject to the provision of Section 127, where a gift consists of the

donor's whole property, the donee is personally liable for all the debts

due by and liabilities of the donor at the time of the gift to the extent

of the property comprised therein. In view of the admissions made by

PW1, it is not 'whole' property of the 1st defendant which was

transferred under the gift deeds which are admitted to have been

executed in the year 2008. Of course, there is no document of the gift

deeds or pattadar passbook adduced in evidence by either of the

parties.

13. Therefore, irrespective of such absence of evidence, the learned

counsel for the appellants contended that even as per the categorical

admission of PW1, since there are some other properties of the 1st

defendant, the plaintiff cannot take shelter under Section 128 of the

Transfer of Property Act to mulch liability on the defendants 2 and 3 to

the suit claim. Accepting the submissions in this regard, this Court is

of the view that the trial Court ought not to have fastened liability

against defendants 2 and 3 for the suit claim as universal donees.

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Thus, the appellants succeeded in establishing their case and in

defending the suit claim against them.

14. The decision in Shaik Fathima Bi v. M/s. Sri Venkata

Chalapathy Finance Corporation, Rayachoty referred in the

judgment of the trial Court does not apply to the present case as the

observations therein were made with regard to having property other

than the salary; whereas, in the present case, the 1st defendant is

admittedly having other properties. The trial Court failed to take into

account the admission of PW1/plaintiff regarding the properties owned

by the 1st defendant and has been carried away by the case of the

defendants that the properties have been partitioned and some

properties have been gifted to defendants 2 & 3.

15. Thus, the decree and judgment passed in O.S.No.699 of 2009 on

the file of the Court of the Principal Senior Civil Judge, Kakinada, are

partly set aside as against the appellants/defendants 2 & 3 and the

suit against them is dismissed.

16. In the result, the appeal is allowed setting aside the decree and

judgment in O.S.No.699 of 2009 on the file of the Court of the

Principal Senior Civil Judge, Kakinada, as against the appellants/

defendants 2 & 3. Both parties shall bear their own costs throughout.

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 01st July, 2022

Note:- L R Copy to be marked (B/o) RAR

AIR 1978 AP 401