Smt Vella Shanthi Krishna Shanthi ... vs Vella Saroja Devi
2023 Latest Caselaw 4772 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

                    Appeal Suit No.787 OF 2017

JUDGMENT:-

        The judgment, dated 22.06.2016 in O.S.No.99 of 2014, on

the file of Special Judge for Trial of Cases under SCs & STs

(POA)        Act-cum-Additional   District   &   Sessions    Judge,

Vizianagaram ("Additional District Judge" for short), is under

challenge in the present Appeal Suit filed by the unsuccessful

defendants.

        2)     The parties to this Appeal Suit will hereinafter be

referred to as described before the learned Additional District

Judge for the sake of convenience.

        3)     The case of the plaintiff, in brief, according to the

averments in the plaint before the learned Additional District

Judge, is that she is the mother of the second defendant. Both

the defendants are wife and husband. The plaintiff had one son

i.e., the second defendant, who is a permanent resident of

Visakhapatnam and five daughters viz., Satyakala, Parvin,

Bhagyalakshmi, Rohini and Phanimala. Though the second

defendant is her son, he never looked-after his parents at any

time. At the time of annual ceremony function of his father, he

tried to destroy the function. By that time the plaintiff gave a

report to the Station House Officer, dated 21.08.2008. All her
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children neglected her. The plaintiff is living in the RCC building

bearing   D.No.12-10-3,     Plot       No.60,   Jagadamba   Nagar,

Poolbaugh, Vizianagaram. The plaintiff approached the II Town

Police Station on 21.08.2008 seeking police protection against

her all children on the day of annual death function of her

husband to be held on 13.09.2008.           The police gave receipt

bearing No.375/2008, dated 21.08.2008.          On coming to know

that the second defendant came to Vizianagaram to make

conspiracy with his friends, the plaintiff again approached the II

Town police station on 10.10.2009 and Police issued receipt

bearing No.587/2009, dated 10.10.2009 for the same. The

second defendant did not show any love and affection towards

his parents. While so, taking advantage of the illiteracy and

innocence of the plaintiff, both the defendants conspired

together and fraudulently misrepresented the plaintiff, as if the

registered sale deed No.55/1983, dated 11.01.1983, was called

by the Sub Registrar, Vizianagaram for computerization of the

document. In that pretext, they fraudulently misrepresented to

the plaintiff that an amount of Rs.5,000/- is necessitated for

computerization of the sale deed and for such necessity both the

defendants insisted the plaintiff on 09.04.2012 to attend before

the bank and compelled the plaintiff to give a blank signed

cheque to the defendants on 09.04.2012 and made the plaintiff
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to attend before the Sub Registrar Office at Vizianagaram on

12.04.2012 and got the plaintiff's signatures, thumb marks and

photos.    On 26.04.2012 while the plaintiff was withdrawing an

amount of Rs.7,100/-, she came to know that an amount of

Rs.12,00,000/- was transferred by way of RTGS to the account

of the first defendant.       The plaintiff questioned the defendants

for their illegal acts and said that she would give a complaint for

the illegal collection of Rs.12,00,000/- on 09.04.2012. Then

immediately both the defendants came down to Vizianagaram

and stopped the plaintiff not to give complaint to the police

promising to pay back the amount of Rs.12,00,000/- within a

short period. Thereafter, the plaintiff demanded the defendants

to repay the amount but they postponed the same on one

pretext or the other. On 01.04.2013 the plaintiff made enquiry

about     the   gift   deed    before    the   Sub      Registrar     Office,

Vizianagaram, where the plaintiff also heard that the second

defendant mortgaged the said property to the Sundaram B.N.P.

Home Finance, Viziangaram for Rs.1,00,000/- by executing a

simple mortgage deed with the help of registered gift deed

bearing No.1998/12, dated 12.04.2012.                 The plaintiff filed a

suit,   O.S.No.29      of   2013,   on   the   file   of   District   Judge,

Vizianagaram, against second defendant, who is the mortgagee,

for cancellation of the registered gift deed. Thus, the plaintiff is
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entitled   for   recovery   of   Rs.12,00,000/-    from    both      the

defendants.

      4)      The first defendant filed a written statement denying

material averments of the plaint and also denying the transfer of

Rs.12,00,000/- from the account of plaintiff to her account by

misrepresentation. It is further averred that the bank ordinarily

follow the rules to transfer any amount from the account of

individual to another account.        She is daughter-in-law of the

plaintiff and they are living in joint family and as such the

question of cheating or playing fraud is unnatural. The plaintiff

filed another suit, O.S.No.29 of 2013, on the file of this Court,

for declaration in respect of one property. The plaintiff filed the

suit after long time without proper explanation for the delay.

The suit is not maintainable without a declaration that the

transaction is null and void. The suit is not maintainable without

adding the Andhra Bank, Vizianagaram where the plaintiff got

account. The second defendant is not a necessary party.           The

suit is bad for non-joinder and mis-joinder of necessary parties.

      5)      On the basis of the above pleadings, the learned

Additional District Judge, settled the following issues for trial:

      (1) Whether the suit is maintainable under law?

      (2) Whether the suit is bad for non-joinder of necessary
      parties?
      (3) Whether the plaintiff has valid cause of action to file the
      suit?
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        (4) Whether the plaintiff is entitled to the suit amount as prayed
        for?

        (5) To what relief?

        6)    During the course of trial, on behalf of the plaintiff

before the Additional District Judge, P.W.1 to P.W.4 were

examined and Ex.A.1 to Ex.A.4 and Ex.X.1 to Ex.X.6 were

marked. The first defendant examined herself as D.W.1, but no

documents were marked.

        7)    The learned Additional District Judge on conclusion

of the trial and on considering the oral as well as documentary

evidence,     decreed    the   suit   of   the   plaintiff   directing   the

defendants to pay Rs.12,00,000/- with subsequent interest at

the rate of 12% per annum from the date of Ex.X.1 i.e.,

09.06.2012 till the date of realization and also directing them to

pay exemplary costs of Rs.1,000/- to the plaintiff. Felt aggrieved

of the same, unsuccessful defendants filed the present Appeal

Suit.

        8)    Now, in deciding the appeal, the points that arise for

consideration are as follows:

        (1) Whether the plaintiff before the learned Additional District
        Judge proved her entitlement to claim back Rs.12,00,000/-
        from the defendants?

        (2) Whether the judgment and decree of learned Additional
        District Judge is sustainable under law and facts and whether
        there are any grounds to interfere with the same?
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       (3) To what relief?

Point Nos.1 and 2:

       9)    P.W.1 is no other than the plaintiff, who got filed her

chief examination affidavit narrating the averments in the plaint.

Through her examination, Ex.A.1 to Ex.A.4 were marked i.e.,

Ex.A.1 is copy of the plaint in O.S.No.29 of 2013, Ex.A.2 is

registered application, dated 12.04.2013 sent under RTI Act to

the P.R.O., Andhra Bank, Vizianagaram, Ex.A.3 is registered

letter sent by Zonal Office, Andhra Bank, dated 22.04.2013

addressed to the Advocate for the plaintiff and Ex.A.4 is account

copy issued by Andhra Bank, Main Branch, Vizianagaram

pertaining    to    plaintiff   A/c.No.060910025701725.     Further

through her examination Ex.X.1 to Ex.X.3 were marked i.e.,

Ex.X.1 is cheque, dated 09.06.2012 for Rs.12,00,000/-, Ex.X.2

is counter foil of Ex.X.1 for encashment and Ex.X.3 is report

given to police by the second defendant marked as Ex.B.1 in

O.S.No.29 of 2013.

       10)   The plaintiff further examined P.W.2 and P.W.2 is

Vella Bhagya Lakshmi, the daughter of plaintiff and in her chief

examination affidavit she deposed in support of the case of the

plaintiff.

       11)   The Plaintiff examined P.W.3, who is Assistant

Manager in Andhra Bank, Vizianagaram, who deposed that he
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brought the information pertaining to account of Vella Saroja

Devi S.B. A/c.No.060910025701725. The account cheque issued

by Saroja Dedvi in favour of Indian Bank, Seethammapeta

Branch was for Rs.12,00,000/- and Ex.X.1 is the same. The

requisition slip for RTGS made by Saroja Devi on 09.04.2012 is

Ex.X.2. Ex.A.4 is the account copy related to P.W.1.

       12)   The plaintiff further examined A.S.I., II Town Police

Station, Vizianagaram, as P.W.4, who brought the documents

upon    summons     and    according       to   him    he   gave    one

acknowledgement for the complaint copy made by Saroja Devi

i.e., plaintiff. Ex.X.4 is the said original complaint pertaining to

receipt. Ex.X.5 is statement of Saroja Devi recorded by them.

The plaintiff's son, who is the second defendant, also gave a

report to the Superintendent of Police and Superintendent of

Police forwarded the same to the S.I. of Police. Ex.X.6 is the

endorsement given by Superintendent of Police.

       13)   D.W.1 got filed her chief examination affidavit

adverting to the case as per the written statement.

       14)   Smt.   S.    Lakshmi       Prameela,     learned   counsel,

representing Sri Kuriti Bhaskara Rao, learned counsel for the

appellants, would contend that the first defendant is the

daughter-in-law of the plaintiff and the second defendant is the

son of the plaintiff. After the demise of husband of the plaintiff,
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defendants could take care of the welfare of the plaintiff. They

used to reside together in a joint family. Considering the same,

the plaintiff made transfer of Rs.12,00,000/- to the account of

the first defendant and according to the evidence adduced she

was physically present at the bank while effecting the said

amount from the account of the plaintiff to the account of the

first defendant. Apart from this, the second defendant could

take care of the necessary death ceremonies of the husband of

the plaintiff and on account of the instigation made by the

daughters of the plaintiff, she developed a fabricated version

and filed a suit, O.S.No.99 of 2014 falsely. She also filed suit,

O.S.No.29 of 2013 to declare the settlement gift deed executed

by her in favour of the second defendant as false. The learned

Additional District Judge did not appreciate the evidence in

proper perspective.     According to the evidence of P.W.3, the

bank officer, they have followed the rules while effecting the

transfer. So, as the amount was duly transferred to the account

of the first defendant by the plaintiff by following the rules, it

cannot   be   held    that   the   defendants    played   fraud   and

misrepresented any fact to her. The learned Additional District

Judge totally erroneously appreciated the evidence on record, as

such, the Appeal Suit is liable to be allowed.
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        15)     Dr. Majji Suri Babu, learned counsel appearing for

the respondent, would contend that it is brought in evidence

that right from the year 2008, there were serious ill-feelings

between the plaintiff and the defendants. Anticipating troubles

to her, she lodged necessary police complaints. Whether the

police investigated into the complaints or not is not material

here. Even the second defendant lodged Ex.X.6 with all false

allegations against the plaintiff as if she conveyed immovable

property in his favour and further conveyed a sum of

Rs.12,00,000/- in his favour. Therefore, the plaintiff could know

about the fraud played by the defendants only when she was

summoned to enquiry into the said complaint. Later, after due

verification, she came to know about the second defendant

obtained a gift deed and first defendant obtained Rs.12,00,000/-

by RTGS transfer falsely by misrepresenting the facts. The

learned Additional District Judge rightly appreciated the

evidence of P.W.1 to P.W.4 and found favourable circumstances

in the case of the plaintiff and unfavourable circumstances in the

case of the defendants and rightly decreed the suit, as such, the

Appeal Suit is liable to be dismissed.

16) Admitted facts are that the defendants are the

daughter-in-law and son of the plaintiff respectively. There is no

dispute about the death of husband of the plaintiff. Even there

is no dispute about the fact that a sum of Rs.12,00,000/- was

transferred from the account of the plaintiff to the account of

the first defendant. Now the thing that is to be considered here

is as to whether the plaintiff before the learned Additional

District Judge probabilized her contention satisfactorily that the

defendants played fraud upon her and got the said amount from

her account to the account of the first defendant by way of

RTGS transfer.

17) Firstly, this Court would like to make it clear that the

contention of the plaintiff is that there is no question of

executing the gift deed in favour of the second defendant and

transferring a sum of Rs.12,00,000/- in favour of the first

defendant on account of ill-feelings between the plaintiff and the

defendants. There is no dispute as evident from Ex.A.1 the

plaintiff filed suit, O.S.No.29 of 2013, on the file of Special

Judge for Trial of Cases under SCs & STs (POA) Act-cum-

Additional District Judge, Vizianagaram and there is no dispute

that now the same is the subject matter in A.S.No.125 of 2017.

The plaintiff to prove the ill-feelings examined P.W.4. As evident

from the evidence of P.W.4, the Asst. Sub Inspector of Police,

coupled with Ex.X.4 to Ex.X.6, the plaintiff made a report

against the children to have police protection and further police

recorded a statement under Ex.X.5 from her. Though the fact

remained is that the police did not investigate into the

allegations, but there is no doubt that apprehending the danger

and nuisance, she lodged reports with police. It is not that

Ex.X.4 and Ex.X.5 are the fabricated documents. Apart from

this, it is also borne out that after alleged gift deed and alleged

RTGS transfer, which is the subject matter in this, the second

defendant lodged a report under Ex.X.6 to the police alleging

that his mother voluntarily conveyed the immovable property in

his favour and further transferred a sum of Rs.12,00,000/- to

his account, but on account of the instigation she is creating

troubles. Even police could not investigate to the allegation and

could not find the bonafides. Therefore, the evidence of P.W.1

and P.W.2 coupled with the evidence of P.W.4 and Ex.X.4 to

Ex.X.6 probabilizes a theory that there were no good relations

between the plaintiff and defendants 1 and 2 and in fact bad

blood was flowing between them. The plaintiff is relying upon

the above circumstances to show that she had no occasion to

transfer a sum of Rs.12,00,000/- voluntarily to the first

defendant.

18) Now, it is appropriate to look into the cross

examination of P.W.1. As seen from the evidence of P.W.1, she

deposed in cross examination that she came to know about the

transfer of Rs.12,00,000/- from her account to the account of

the first defendant when she went to the bank for withdrawing

some amount. Though she questioned the defendants, but they

postponed the matter with a promise to repay the amount. She

received an amount of Rs.19,00,000/- as sale consideration and

kept that amount. That amount was deposited within one month

before withdrawing. She did not give any notice to the

defendants when they failed to give that amount. She never

suspected while signing the cheque that they will cheat her as

they met her after five years when she was in happy mood. She

denied that she voluntarily transferred Rs.12,00,000/- in favour

of the first defendant through RTGS out of love and affection

fearing that the second defendant may mishandle cash and that

the defendants did not cheat her.

19) P.W.2, the daughter of P.W.1, during cross

examination denied the theory of the defendants that the

amount was transferred to the account of first defendant

voluntarily by the plaintiff.

20) Coming to the evidence of P.W.3, he was a bank

officer and according to him a requisition slip for RTGS was

made by Saroja Devi on 09.04.2012 and Ex.X.2 is the same.

Ex.A.4 is the account copy.

21) It is to be noted that absolutely there is no dispute

at all about the transfer of the amount and according to the

evidence of P.W.3, P.W.1 was present at the time of affecting

the amount transfer.

22) Now, it is appropriate to look into the cross

examination part of D.W.1, who is no other than the first

defendant. During cross examination, she deposed that they

had no house at Visakhapatnam. She got other address proof

like Aadhaar card as resident of Visakhapatnam so also her

husband-second defendant. She is income tax assessee from 20

years. She had to show all her income to income tax authorities.

Her father-in-law never lived with them along with P.W.1. After

the death of her father-in-law, P.W.1 lived with them in

Visakhapatnam. They never lived in Vizianagaram, though they

visited now and then. P.W.1 executed gift deed in the first

instance and subsequently Ex.X.1-the cheque transaction took

place. She mentioned about Ex.X.1 in her income tax returns,

but she does not remember how it was mentioned. Ex.X.1

amount was transferred to her account but not to the account of

her husband. P.W.1 can write in Telugu and she cannot write in

English. On the date of Ex.X.1 transaction, she and P.W.1 only

went to the bank. Her husband waited outside in the car. He

took them to the bank in car. Ex.X.1 and Ex.X.2 were filled up

by her (DW.1) in her handwriting. She denied that they took the

plaintiff falsely representing that the registered sale deed

No.55/1983, dated 11.01.1983 is to be computerized and in that

connection they fraudulently represented before P.W.1 that an

amount of Rs.5,000/- is necessitated for computerization of the

sale deed, as such, they took her signatures on Ex.X.1 and

Ex.X.2. She denied that there is no love and affection to give

Ex.X.1 to them by P.W.1 and that she is deposing false. When a

question was posed by the trial Judge as on the date whether

any other amount were lying in the account of P.W.1, she

answered that it is only amount available in her account and she

gave it to her.

23) It is to be noted that the very written statement filed

by the first defendant which is adopted by the second defendant

is confined to the contention that there was no fraud played by

them and the bank would follow the rules only. They did not

explain whatsoever under what circumstances the plaintiff made

such transfer of Rs.12,00,000/- to the account of the first

defendant. Thus, without any basis from the pleadings, a

suggestion was put forth before P.W.1 during cross examination

that out of love and affection she voluntarily transferred a sum

of Rs.12,00,000/- to the account of first defendant. Curiously,

the chief examination affidavit of D.W.1 is replica to the

contents of written statement which is absolutely missing that

out of love and affection, the plaintiff made transfer of

Rs.12,00,000/- to the first defendant. Therefore, the defendants

miserably failed to make a proper pleading in the written

statement to explain the circumstances under which the amount

was transferred to the account of the first defendant. Even

D.W.1 admitted in cross examination about the conduct of her

husband as she deposed that plaintiff thought that the amount

will be mishandled by her husband, as such, the amount was

transferred to her.

24) It is to be noted that the defendants had no occasion

to reside along with plaintiff in Vizianagaram at her house which

is evident from the cross examination. The second defendant did

not step into the witness box. As seen from Ex.X.1-cheque, it

was issued in the name of Indian Bank. The contents are in

English and the signature of the plaintiff is in Telugu. Quietly,

there is an admission from D.W.1 that she filled up the contents

thereof. If really the plaintiff had love and affection, she would

have straight away issued a cheque in favour of the first

defendant instead of effecting RTGS transfer. There is every

reason to believe that the contents of Ex.X.1 and Ex.X.2 are not

within the knowledge of the plaintiff. Apart from this, the second

defendant did not step into the witness box. In fact, when

D.W.1, second defendant and the plaintiff together went to the

bank, there was no need or necessity for the second defendant

to remain outside the bank. The answers spoken by D.W.1 in

cross examination thrown out the circumstances that absolutely

P.W.1 had no knowledge about the contents of Ex.X.1 and

Ex.X.2 as she cannot write in English and she can only write in

Telugu. The admissions made by D.W.1 throw any amount of

doubtful circumstances about the bonafides of Ex.X.1 and

Ex.X.2. According to D.W.1, except the amount of

Rs.12,00,000/-, plaintiff had no amount in her account.

Therefore, when the plaintiff was aged about 75 years or so at

the time of transaction, it is quite improbable to assume that

she ventured to effect the transfer of Rs.12,00,000/- that too to

the account of first defendant that too by way of RTGS transfer.

The contention of the defendants that due to love and affection,

the plaintiff affected such transfer as suggested to P.W.1 has no

basis from the pleadings. When there were serious ill-feelings

between the plaintiff and the defendants, it is quite improbable

to assume that she ventured to affect the transfer of huge sum

of Rs.12,00,000/- without retaining any amount whatsoever for

her needs. There is no dispute that the plaintiff was alone

residing at Vizianagaram. In such circumstances, when the

defendants had no occasion to reside along with her, the

contention of the first defendant that she developed love and

affection in favour of her (first defendant) cannot stand to any

reason.

25) In the light of the above reasons, I am of the

considered view that absolutely the plaintiff is able to probabilize

her contention with satisfactory evidence and the defendants

miserably failed to substantiate their contentions. When huge

amount of Rs.12,00,000/- was transferred from the account of

the plaintiff to the account of first defendant and when the

plaintiff alleged fraud and misrepresentation in the plaint

averments, it is the bounden duty of the defendants to throw

light as to the circumstances under which that transaction was

effected. The written statement of the first defendant which is

adopted by the second defendant did not contain any whisper

throwing out any reasonable circumstances in which the plaintiff

made such transfer. The contention that the bank will not effect

transfer and there is no question of fraud, etc., deserves no

merits in the absence of a proper pleading. Therefore, the

contentions of the defendants developed for the first time during

the course of trial before P.W.1 as if such things were done by

P.W.1 due to love and affection cannot stands to any reason.

Even D.W.1 failed to state those things in her chief examination

affidavit.

26) The learned Additional District Judge as evident from

the judgment rightly looked into overall facts and circumstances

and rightly believed the case of the plaintiff. The evidence on

record goes to prove that the transaction under Ex.X.1 and

Ex.X.2 was on account of the fraud and misrepresentation.

There were no possibilities for voluntarily transfer of such huge

amount. Hence, in my considered view the plaintiff before the

learned Additional District Judge proved her entitlement to get

back the amount transferred under Ex.X.1 and Ex.X.2 from the

first defendant and the judgment, dated 22.06.2016 in

O.S.No.99 of 2014, on the file of Special Judge for Trial of Cases

under SCs & STs (POA) Act-cum-Additional District Judge,

Vizianagaram, is sustainable under law and facts and there are

no merits in the appeal.

Point No.3:

27) In the result, the Appeal Suit is dismissed with costs

confirming the judgment, dated 22.06.2016 in O.S.No.99 of

2014, on the file of Special Judge for Trial of Cases under SCs &

STs (POA) Act-cum-Additional District Judge, Vizianagaram.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

__________________________ JUSTICE A.V. RAVINDRA BABU Dt. 07.10.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.787 of 2017

Date: 07.10.2023

PGR