Andhra Pradesh High Court - Amravati

S.Shamiuiddin vs S.Kurshiud Begum on 13 September, 2022

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


                    Appeal Suit No.308 of 2020


JUDGMNET:


      This appeal, under Section 96 CPC, is preferred by the

unsuccessful plaintiff aggrieved by the judgment and decree, dated

17.06.2020, passed in O.S.No.36 of 2012 on the file of the Court of

I Additional District Judge, at Chittoor.


2.    Heard Sri K. Ananth Rao, learned counsel for the appellant/

plaintiff and Sri T.C.Krishnan, learned counsel for the respondents/

defendants. The appellant also filed written arguments.

3. The case of the plaintiff, in brief, is G.M. Shahabuddin had a

wife, by name, S.Khurshid Begum, 1st defendant, and two sons,

namely, S.Kamaluddin, 2nd defendant, and S.Shamiuddin, the

plaintiff, and three daughters, defendants 3 to 5. G.M. Shahabuddin

died on 10.10.1979 leaving behind him his wife, sons and daughter,

i.e., the plaintiff and defendants 3 to 5 as his heirs. G.M.

Shahabuddin purchased the suit schedule property and other

properties through a registered sale deed, dt.11.11.1953. Since

then he was in possession and enjoyment of the same. After his

death, some of the properties covered under the sale deed, dated

11.11.1953, were sold by the plaintiff and the defendants to

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discharge the family debts. The 1st defendant is entitled to 1/8th

share in the suit schedule properties. After deducting the share

allotted to the 1st defendant, his sons, i.e., the plaintiff and 2nd

defendant are entitled to two shares each and three daughters of

G.M. Shahabuddin are entitled to one share each in the remaining

suit schedule property of Ac.2.32 cents situated in S.No.337 of

Mangasamudram village, Chittoor Mandal, Chittoor District.

(b) The plaintiff and the defendants are in joint possession of the

suit schedule properties. The 2nd defendant has been managing the

suit schedule property. Some disputes arose between the plaintiff

and the 2nd defendant. Hence, the 2nd defendant started to act

adverse to the interest of the plaintiff in collusion with the other

defendants and is making hectic efforts to alienate the suit schedule

properties to deprive the plaintiff's share in the suit schedule

properties. The plaintiff made several demands to the defendants

for amicable partition and separate possession of the plaintiff's

share in the schedule property. The last such demand was made on

20.06.2012. The suit is filed, since the defendants did not comply

with the demands of the plaintiff. During the pendency of the suit,

1st defendant, Khurshid Begum, died on 10.12.2013. Except the

plaintiff and the defendants 2 to 5, who are the legal

representatives of 1st defendant, already on record, there are no

other legal representatives of 1st defendant.

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4. The gist of the averments in the written statement and

additional written statement filed by the 2 nd defendant, in brief, is

that the total extent of the land purchased by their father as per

registered sale deed, dated 11.11.1953, was Ac.3.00 cents which is

actually found to be only Ac.2.97 cents, on survey and that after the

demise of the father of the 2nd defendant, in the year 2001, there

was an oral partition between the plaintiff and the defendants 1 to

5, in which Ac.0.76 cents was allotted to the share of the plaintiff,

Ac.0.36 ½ cents was allotted to each of the defendants 1, 3 to 5

and Ac.0.75 cents was allotted to the share of the 2nd defendant

and since then, defendants 1 to 5 are in joint possession of the suit

schedule property which fell to their share, but, the plaintiff sold the

property fell to his share, by dividing into plots, under various

registered sale deeds to third parties for his vices. Not being

satisfied, the plaintiff filed the false suit suppressing the oral

partition. The plaintiff has no manner of right, title or possession

over the schedule property. The plaintiff never looked after the

welfare of the family nor discharged the family debts. Since, after

partition of the property, the plaintiff sold his share of landed

property, the suit is bad for non-joinder of purchasers. The share of

the deceased 1st defendant has to be divided only between the

defendants 2 to 5 as they are jointly enjoying the said property.

The plaintiff has sold more than the extent which was allotted to

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him. Since the plaintiff is not in joint possession of the suit

schedule property, the court fee paid under Section 34(2) of A.P

Court Fee and Suits Valuation Act is incorrect. The suit is liable to

be dismissed.

5. The defendants 3 to 5 adopted the written statement as well

as the additional written statement filed on behalf of the 2 nd

defendant.

6. Basing on the above pleadings, the following issues were

settled for trial:

(i) Whether there was an oral partition in 2001 and the suit schedule properties fell to the share of D1 to D5 in partition?

(ii) Whether the plaintiff has sold away his share of properties?

(iii) Whether the plaintiff is entitled to seek partition of his share?

(iv) To what relief?

During the course of trial, 1st defendant died. The plaintiff examined

himself as PW1 and he got examined a third party as PW2 and

exhibits A1 to A3 were marked. On the other hand, on behalf of the

defendants, defendants 2, 4 and 5 were examined as DWs 1, 4 and

5, third parties as DWs 2 and 3 and marked exhibits B1 to B17.

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7. On hearing both sides and on consideration of material on

record, the trial Court dismissed the suit of the plaintiff.

8. The aggrieved plaintiff is therefore before this Court by way of

this appeal contending that the decree & judgment of the trial Court

are based on assumptions and presumptions, without evidence

about an oral partition; that the trial Court failed to see that after

the death of the 1st defendant, her share is to be distributed to the

legal representatives, including the appellant, that the trial Court

failed to consider that even the 2nd defendant sold properties, for

determining the correct share of the plaintiff and thus, grave

injustice is caused to the appellant herein.

9. The appellant/plaintiff seeks partition on simple ground that

the suit schedule property was purchased by his father and after his

death, he along with the defendants are entitled to the share as he

claimed. The suit was resisted on the ground that the properties

were partitioned and the plaintiff has sold his property in his

individual capacity and suppressing the same, he filed the suit. In

answer to the sales made by the plaintiff, he pleaded that the sales

were made by him to discharge the family debts and to meet the

family expenses. The defendants filed exhibits B1 to B15, to show

that the plaintiff sold the properties in his individual capacity

describing in the sale deeds, that he got the property as his share in

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the partition. According to the defendants, the partition was

effected in the year 2001. All the sale deeds, exhibits B1 to B15,

are subsequent to the year 2001.

10. As rightly pointed out, no signature of any other family

member was taken on the sale deeds. It is pertinent to note that

out of Ac.3.60 cents, he has chosen to divide only the suit schedule

property of Ac. 2.32 cents. He failed to explain the remaining

extent of the property. Under the sale deed of the father of the

plaintiff, in addition to the suit schedule property, there are several

other properties purchased under the same document. The plaintiff

is silent about all other properties also.

11. The appellant filed I.A.No.1 of 2022 to file additional evidence

of the sales made by the 2nd defendant. The same has been

dismissed on merits, by a separate order passed today.

12. Learned counsel for the appellant relied on the decision in

R.Mahalakshmi v. A.Kanchana 1 , wherein at paragraph No.8, it

was held as follows:

"8. ....... As stated earlier, this Court in its judgment dated 03.08.2009 in Civil Appeal No. 5053 of 2009 has categorically held that all the properties that were inherited by Sri A.V. Venkataraman by virtue of a registered deed of partition dated 27.04.1954 have not

(2017) 11 SCC 548

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been included in the suit schedule. This Court clearly held in the said judgment that another ground for remand was that the Appellant has taken a consistent stand from the beginning that the suit for partial partition was bad in law. In our view, the First Appellate Court was right in remitting the matter to the Trial Court to take into account the other properties which were inherited by the Appellant's father......."

Learned counsel for the appellant further relied on certain decisions

which deal with law of partition of property of Hindus which are

different from the law applicable to the parties in the present suit.

13. On a reading of the entire evidence, it is clear that the

defendants could establish their defence. There is ample evidence

placed by the defendants which clearly indicates that there was a

partition and the plaintiff has sold his part of property in his

individual capacity pursuant to the partition. The sales made by the

2nd defendant under exhibits A2 and A3 also indicate that he has

also sold part of the property fell to his share in his individual

capacity. As such, this Court finds that the trial Court has rightly

dismissed the suit and there is no merit in the appeal.