Andhra Pradesh High Court - Amravati
K. Jhanai Laxhmi Bai vs B. Visweswara Rao on 9 August, 2024
APHC010376242003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
FRIDAY ,THE NINTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 809/2003
Between:
1. K. JHANAI LAXHMI BAI, W/O LATE VENKATA SAMBASIVA RAO R/O
DAVAGIGUDEM VILLAGE, GANNAVARAM MANDALAM
GANNAVARAM DMC.
2. K. SATISH, W/O LATE VENKATA SAMBASIVA RAO R/O
DAVAGIGUDEM VILLAGE, GANNAVARAM MANDALAM
GANNAVARAM DMC.
3. K. SUNEETHA, D/O K. VENKATA SAMBASIVA RAO R/O
DEVAGIGUDEM VILLAGE, GANNAVARAM MANDALAM
GANNAVARAM DMC.
...APPELLANT(S)
AND
1. B VISWESWARA RAO, S/o Sesha Rao R/o Davagigudem (V),
Gannavaram Mandalam, Gannavaram DMC.
...RESPONDENT
appeal against the judgment & decree dt. 24-10-02 passed in OS No.
19/94 on the file of the Senior Civil Judge, Gudivada, Krishna Dist.
IA NO: 1 OF 2003(CMP 9859 OF 2003
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
IA NO: 1 OF 2022
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to expedite the proceedings in the appeal i.e AS 809 of 2003 and fix
an early date for the hearing of the appeal and grant
Counsel for the Appellant(S):
1. DANTU SRINIVAS
Counsel for the Respondent:
1. CH DURGA PRASAD
2. T V JAGGI REDDY
The Court made the following:
Judgment:
The appeal is filed against the judgment and decree dated 24-10-2002
passed by the learned Senior Civil Judge, Gudivada, Krishna District,
in O.S.No.19 of 1994. The suit is filed for recovery of an amount of
Rs.61,150/-.
2. Brief averments in the plaint filed by the plaintiff are as follows:
(a) The plaintiff pleaded that the 1st defendant is the wife and
defendants 2 and 3 are minor children of one late Karempudi Venkata
Sambasiva Rao and the said Sambasiva Rao during his life time, borrowed
an amount of Rs.40,000/- from the plaintiff on 22-3-1991 for the purpose of his
joint family necessities and he executed a registered mortgage deed in favour
of the plaintiff in respect of the plaint schedule property.
(b) The plaintiff further pleaded that in spite of repeated demands, the
said Sambasiva Rao, during his life time, postponed the payment and he died
intestate and all the properties of Sambasiva Rao devolved upon the
defendants as his legal representatives and after the death of Sambasiva
Rao, though the plaintiff demanded the defendants to deposit the suit debt,
they failed to discharge the suit debt and that the plaintiff is constrained to file
the suit.
3. The case of the defendants, as per the written statement filed by
them, is that in the presence of elders, all the properties of late Sambasiva
Rao were divided by metes and bounds in the first week of January, 1991 and
in the said partition, the plaint schedule property fell to the share of Karempudi
Suneetha i.e. 3rd defendant and since then, the defendants 2 and 3 and late
Sambasiva Rao have been in separate possession and enjoyment of the
plaint schedule property. They further pleaded that subsequently, a regular
partition deed was executed on 11-9-1991 and registered the same and later
Sambasiva Rao died on 13-5-1992 and they further pleaded that the suit
mortgage deed is not supported by consideration.
4. Based upon the pleadings of both the parties, the trial Court framed
the following issues for trial:
(1) Whether the mortgage deed dated 22-3-1991 is true, valid and
binding on the defendants ?
(2) Whether the alleged mortgage is for legal necessity or for the
benefit of the joint family of Sambasiva Rao ?
(3) Whether the plaintiff is entitled to suit amount ? and
(4) To what relief ?
5. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 3 are
examined and Exs.A-1 to A-7 are marked. On behalf of the defendants,
D.W.1 is examined and Exs.B-1 and B-2 are marked.
6. After completion of the trial and hearing the arguments of both sides,
the trial Court passed a preliminary decree for Rs.61,150/- with costs and
interest at the rate of 12% per annum on Rs.40,000/- from the date of suit till
the date of redemption and thereafter, with interest at the rate of 6% per
annum from the date of redemption till the date of realization, granting
6 months' time for redemption. Felt aggrieved of the aforesaid judgment and
decree passed by the learned Senior Civil Judge, Gudivada, the unsuccessful
defendants therein filed the present appeal.
7. Heard Sri Dantu Srinivas, learned counsel appearing for the
appellants/defendants, through virtual mode. None appeared for the
respondent/plaintiff.
8. The learned counsel for the appellants would contend that if the
Court below had tried issue No.1 separately, it would be in favour of the
defendants because there was no prior demand by the plaintiff before the
death of Sambasiva Rao whom the plaintiff alleged to have been executed the
deed on 22-3-1991 in favour of him. He would further contend that the Court
below ought to have held issue No.2 in favour of the defendants as the
mortgage made by the 1st defendant's husband is not binding on them, as he
was having no issues over the property as it was already partitioned.
He would further contend that the Court below erred in holding that D.W.1
failed to produce any evidence on record to show that late Sambasiva Rao is
a man of bad vices. He would further contend that the appeal may be allowed
and the judgment and decree passed by the learned trial Judge may be set
aside.
9. Now, the points for determination in the appeal are:
(1) Whether the trial Court is justified in decreeing the suit and
whether the judgment and decree passed by the learned trial
Judge needs any interference ? and
(2) To what extent ?
10. Point No.1: Whether the trial Court is justified in decreeing the suit
and whether the judgment and decree passed by the learned trial Judge
needs any interference ?
The case of the plaintiff is that one Karempudi Venkata Sambasiva Rao
borrowed an amount of Rs.40,000/- from him on 22-3-1991 and he executed
a registered mortgage deed on the same day by mortgaging the plaint
schedule property and subsequently, though the plaintiff made several
demands, the said Sambasiva Rao postponed the payment of debt and later
Sambasiva Rao died intestate and all his properties devolved upon the
defendants as his legal representatives. The plaintiff further pleaded that after
the death of Sambasiva Rao, though he demanded the defendants to repay
the said amount, they failed to discharge their duty and the assets of the
deceased Sambasiva Rao are in the possession of the defendants.
11. To discharge his burden, the plaintiff relied on the evidence of
P.Ws.1 to 3. P.W.1 is none other than the plaintiff. The registered mortgage
deed got exhibited as Ex.A-1. P.W.2 is one of the attestors in the registered
mortgage deed. P.W.3 is the scribe of Ex.A-3 registered mortgage deed. It is
in the evidence of P.W.1 about borrowing Rs.40,000/- by the husband of
1st defendant, by name Karempudi Venkata Sambasiva Rao and also
execution of a registered mortgage deed Ex.A-1 in favour of the plaintiff.
The borrowing of an amount of Rs.40,000/- and so also the execution of
a registered mortgage deed Ex.A-1 in favour of the plaintiff by late Sambasiva
Rao is narrated by P.W.1 in his evidence and the same is supported by
P.W.2. The evidence of P.W.2 also goes to show that consideration
of Rs.40,000/- was passed under Ex.A-1 registered mortgage deed.
His evidence is further corroborated by the evidence of P.W.3, who is the
scribe of Ex.A-1 mortgage deed. The evidence of P.Ws.1 to 3 clinchingly
proves about borrowing of Rs.40,000/- by late Karempudi Venkata Sambasiva
Rao and also execution of Ex.A-1 registered mortgage deed in favour of the
plaintiff.
12. The execution of registered mortgage deed Ex.A-1 is not at all
disputed by the appellants and their relationship with Sambasiva Rao is also
not at all disputed by them. The defence put forth by the appellants in the
written statement itself is that Ex.A-1 registered mortgage deed was obtained
by the plaintiff while Sambasiva Rao was under the influence of liquor.
Admittedly, there is no material on record to show that the said late
Sambasiva Rao was addicted to bad vices. Absolutely, there is no evidence
on record to show that Ex.A-1 was obtained by the plaintiff while Sambasiva
Rao was under the influence of liquor. Another defence put forth by the
appellants is that the plaint schedule property was got by the 3rd defendant in
a family partition under Ex.B-1 registered partition deed and prior to Ex.B-1,
there was an oral partition in between both the parties. Admittedly, Ex.A-1
registered mortgage deed is much prior to Ex.B-1 partition deed. Though the
appellants pleaded that there was an oral partition in between both the parties,
the same is not at all proved by the appellants on record.
13. The evidence on record clearly proves about the borrowing of
an amount of Rs.40,000/- by late Karempudi Venkata Sambasiva Rao and
also the execution of Ex.A-1 registered mortgage deed in favour of the plaintiff
by mortgaging the plaint schedule property. It is not the case of the appellants
that the said property is not in their possession. The defence put forth by the
defendants is that Ex.A-1 was obtained by the plaintiff while late Sambasiva
Rao was under the influence of liquor. Admittedly, there is no evidence on
record to show that Ex.A-1 was obtained by the plaintiff while the executant
was under the influence of liquor. Morevoer, to discharge their burden, the
appellants failed to prove the defence taken by them in the written statement
itself except examining the 1st defendant as D.W.1. There is no evidence on
record to show that Ex.A-1 was obtained by the plaintiff from Sambasiva Rao
while he was under the influence of liquor. Absolutely, there is no evidence on
record to show that there was an oral family arrangement in between the
defendants prior to alleged Ex.B-1. As stated supra, though the appellants
relied on Ex.B-1, Ex.A-1 registered mortgage deed is much prior to Ex.B-1
transaction. The learned trial Judge rightly held in his judgment that Ex.B-2
registration extract of gift deed executed by the parents of D.W.1 in her favour
has no relevance to the suit transaction. For the aforesaid reasons, I do not
find any illegality in the judgment and preliminary decree of mortgage passed
by the learned trial Judge. Therefore, the judgment and decree passed by the
learned trial Judge is perfectly sustainable under law and it requires no
interference.
14. Point No.2:- To what extent ?
Resultantly, the appeal is dismissed, confirming the judgment and
decree, dated 24-10-2002, in O.S.No.19 of 1994 on the file of Senior Civil
Judge's Court, Gudivada. Pending applications, if any, shall stand closed.
Considering the circumstances of the case, I order each party to bear their
own costs in the appeal.
VENUTHURUMALLI GOPALA KRISHNA RAO,J
To,
2. Two CD Copies
HIGH COURT
VGKRJ
DATED:09/08/2024
ORDER
