Andhra Pradesh High Court - Amravati
Madeti Satya Rao vs Smt. Nalam Saraswathi With Drawn on 18 September, 2024
1
APHC010248372009
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
WEDNESDAY, THE EIGHTEENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
APPEAL SUIT NO: 333/2009
Between:
Madeti Satya Rao ...APPELLANT
AND
Smt Nalam Saraswathi With Drawn and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. SARIPALLI SUBRAHMANYAM
Counsel for the Respondent(S):
1. G RAMA GOPAL
2. M SIVA JYOTHI
The Court made the following JUDGMENT:
1. The Appeal, under Section 96 of the Code of the Civil Procedure, 1908
(for short, 'C.P.C.'), is filed by the Appellant/
Appellant/Defendant No.1 challenging the
decree and Judgment, dated 13.02.2009 in O.S.No.13 of 2000 passed by
the learned I Additional
ditional District Judge, Vizianagaram (for short, 'trial C
Court').
2. Respondents 1 to 3 are the Plaintiffs,
s, who filed the suit in O.S.No.13 of
2000 for partition of the plaint schedule properties into five equal shares and
to deliver three such shares to them towards their share with separate
possession and to direct the Defendants to pay Rs.1,50,000/- towards past
income from the schedule ite
items besides directing the Defendants
s to account
for the profits of subsequent years till the date of delivery and for costs of the
suit. The Appellant herein is the Defendant No.1 and Respondents 4 to 15
are the Defendants 2 to 13 in the said suit.
3. Referring to the parties as arrayed in the suit is expedient to mitigate
potential confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the
contentious issues between the parties inter se, may be delineated as
follows:
The 1st Defendant is the only son of the late Madeti Sanyasayya,
whose wife predeceased him. Upon his death intestate, the 1st
Defendant and the Plaintiffs became his class-I legal heirs. The
parties are governed by the Mitakshara school of Hindu Law and
belong to the Vysya community. The said Sanyasayya did not
possess any ancestral properties. He started a business with the
support of his father-in-law and the goodwill of the villagers,
acquired both movable and immovable properties in and around
Pathivada village. His assets included: A-schedule landed property
i.e., coconut garden measuring approximately Ac.10.48 cents, dry
land measuring approximately Ac.4.07 cents and wet land
measuring approximately Ac.2.02 cents. He also acquired two
houses in Pathivada village and movable assets and cash listed in
the plaint C-schedule. The total worth of these properties exceeds
Rs.10,00,000/-. The coconut garden generates an annual income
of Rs.1,00,000/-, the wet land yields Rs.12,000/- annually, and the
dry land produces Rs.4,500/- annually.
As the only son, the 1st Defendant managed all these
properties as the Kartha of the family. He is also in possession of
approximately 75 tulas of family gold. The Plaintiffs reside with their
husbands at different locations. Until four years ago, the 1st
Defendant provided the Plaintiffs with a small share of the produce.
However, he has since been reluctant to account for the income
from the properties, leading to concerns about joint management
with him.
The Plaintiffs and the 2nd Defendant, who are the 1st
Defendant's sisters, have repeatedly requested a partition of the
properties and their 3/5th share. The 1st Defendant has
continuously delayed this process with various excuses over the
past three years and has been misappropriating the income from
the properties. Although the 2nd Defendant holds a 1/5th share, she
is complicit with the 1st Defendant, necessitating her inclusion as a
Defendant.
The 1st Defendant is accused of attempting to alienate the
properties, taking advantage of the Plaintiffs' and the 2 nd
Defendant's absence from the village. There is no statute of
limitations on recovering the Plaintiffs' shares as co-owners. The
Plaintiffs seek an accounting of the property income for the last
three years. They contend that the sale deeds dated 09.08.1986,
27.07.1993, 27.06.1985, and 03.02.1998, which involve alleged
sales by the 1st Defendant to the other Defendants, are fraudulent
and unknown to the Plaintiffs. The Plaintiffs were not parties to
these transactions, and thus, they are not binding on the co-
owners. Even if the sale deeds are valid, they should be allocated
to the 1st Defendant's share when equitable adjustments are made
under the Partition Act.
5. The 1st Defendant filed a written statement, which has been
subsequently adopted by the 2nd Defendant, asserting that the 1st Defendant
is in possession of 3.39 acres in Survey No. 32/1 and 2.48 acres in Survey
No. 32/2, where a coconut garden is located. Additionally, the 1st Defendant
possesses and is utilizing 1.15 acres in Survey No. 37/5 and approximately
2.00 acres in Survey No. 35/4, which are dry lands. The 1st Defendant
confirms that these are the only lands under his possession. Item No. 1 of
the B-schedule pertains to a family residential house where the 1 st
Defendant resides with his family. Item No. 2 of the B-schedule refers to a
building used for storing agricultural produce and instruments. Both houses
listed in the B-schedule are occupied by the Plaintiffs and the 2nd Defendant,
along with their respective spouses. There is no gold described as Item No.4
of the C-schedule. The 1st Defendant possesses only one cow, valued at
Rs.2,000/-, and has no carts or bulls. Furthermore, there are no household
utensils belonging to his parents in his home. The 1 st Defendant disputes the
claim that he derives an annual yield of Rs.70,000/- from the coconut
garden, paddy, and dry crops, as alleged in the plaint. He also contends that
the plaint schedule is inaccurate. The 1st Defendant challenges the
adequacy and correctness of the court fee paid by the Plaintiffs and denies
that the Plaintiffs are in joint possession and enjoyment of the scheduled
properties. He asserts that the Plaintiffs are not entitled to a partition and
that he is not liable to account for the income as demanded.
6. Subsequently, the 1st Defendant filed additional written statement
correcting an earlier error about land in Survey No. 35/4, which he sold to
Kanumuri Venkata Satyanarayana Raju on 19.08.1986. This land was
subsequently resold to Kancherla Revathi and her family on 27.07.1993. He
also sold land in Survey No. 37/2 to Mangalampalli Surya Prakasarao on
June 27, 1985, and 4.00 acres in Survey No. 32/1 to Smt. Madeti Lakshmi
on 18.08.1988. The Defendant stated that these sales were made to fund his
sister's marriage and to settle related debts. He claims no rights or interest in
these properties, which the Plaintiffs are aware of. He argues that the
purchasers are necessary parties to the suit, and asserts that the suit is bad
due to their non-joinder.
7. The 5th Defendant filed a separate written statement, which was
adopted by the Defendants 6 and 7. They contend that they have purchased
Ac.1.98 cents in S.No.35/4 from the 1st Defendant under a registered sale
deed dated 19.08.1986, for valuable consideration. This property was
subsequently sold to Defendants 8 and 9 under a registered sale deed dated
02.07.1993, approximately seven years prior to filing of the suit. As a result,
the purchasers were in physical possession and enjoyment of the said
property, and their names were duly mutated in the revenue records. On
enquiry, they came to know that the Plaintiffs were not co-parceners and had
married before the amendment of the Hindu Succession Act applicable in
Andhra Pradesh. The Plaintiffs are alleged to have filed the present suit for
partition while concealing the sale transactions made by the 1st Defendant in
their favour. They purchased the above said land bonafidely and
subsequently, sold it to Defendants 8 and 9, they argue that the Defendants
8 and 9 not necessary parties to the suit.
8. The 9th Defendant filed a written statement, which was adopted by
Defendants 8 and 10. They assert that the 9 th Defendant's mother, Smt.
Kancherla Rajavathi and his wife Smt. Kancherla Venkata Ratnavani and his
two sons viz., Rohit and Ram sisir, purchased Ac.53.69 cents in one bit
covered by S.Nos.41/1 and 2, 38/1 and 4, 39/1 and 2, 44, 35/4, 6 and 7,
43/1 to 16, 45/3, 49/9, 94/17 to 21 and 94/24 to 26 under a registered sale
deed dated 27.7.1993 from Defendants 3, 4, 5, 6, 7 and Nanda Kishore
Varma. Additionally, under a registered sale deed dt.27.08.1993, they
purchased Ac.0.48 cents from Seeraju Musalaiah, adjacent to the previously
mentioned land. Their names are also mutated in the revenue records. The
Mandal Revenue Officer had issued five separate pattadar passbooks and
title deeds in their favour. They have been in possession and enjoyment of
these lands, including extensive investments in cultivation, bore wells and
planting coconut, mango and cashew trees. The land in Sy.No.35/4, known
as 'Ramachandra Farms', is Ac.1.98 cents and forms part of the Ac.53.69
cents purchased. The 9th Defendant's two sons are not listed as parties in
the suit. The suit is barred by limitation. The Plaintiffs should have filed a suit
for declaration of title and for possession of the property. The suit is bad for
non-joinder of necessary parties.
9. The Defendants 3 and 4 died during the pendency of the suit. The
Defendants 11 to 13 remained exparte.
st
10. The Plaintiffs filed a rejoinder, refuting the claim that the 1 Defendant
sold the property to cover the marriage expenses of the 2 nd Defendant. The
1st Defendant could not sell the property without their consent, making the
alleged sale deeds non-binding. They are not parties to the alleged sale
deeds and that the revenue records show the 1st Defendant remains in
possession of the schedule property. In a partition suit, the rights of the
parties are determined equitably, and any sale deed to third parties, even if
valid, would still be considered as part of the 1st Defendant's share. The sale
deed in favour of the 1st Defendant's wife is a benami document and that the
alleged sale deeds are legal invalid and should be disregarded.
Consequently, it is prayed to decree the suit.
11. Based on the above pleadings, the trial Court framed the following
issues:
(1) Whether the Plaintiffs are entitled for partition of any of the
properties, if so, what is the share of each Plaintiff?
(2) Whether the Plaintiffs are entitled to claim partition of B-schedule
house property?
(3) Whether the Defendant No.1 alone is in possession of the schedule
property and if so, liable to pay past profits?
(4) Whether the description of the property is correct?
(5) Whether the Court fee paid by the Plaintiffs is correct?
(6) To what relief?
The trial Court also framed the following additional issues on 09.08.2005:
Whether the suit is bad for non joinder of necessary parties?
The trial Court further framed the following additional issues on
24.01.2008:
i) Whether D.5 to D.7 were the bonafide purchasers of Ac.1.98 cents
in S.No.35/4 under regd. Sale deed dated 19.08.1986?
ii) Whether the D.8 and D.9 are the bonafide purchasers for value and
became the absolute owners to an extent of Ac.1.98 cents in
S.No.35/4?
12. During the trial, on behalf of the Plaintiffs, PWs.1 to 4 were examined
and marked Exs.A.1 to A.7. On behalf of the Defendants, DWs.1 to 3 were
examined and marked Exs.B.1 to B.19.
13. After completion of the trial and hearing the arguments of both sides,
the trial Court preliminarily decreed the suit in favour of the Plaintiffs for
partitioning the plaint A and B schedule property into five equal shares and
to allot three such shares to the Plaintiffs 1 to 3. The Defendants 1 and 2
are entitled to take the remaining two shares equally. The Plaintiffs are not
entitled to claim Rs.1,50,000/- towards past profits from the 1st Defendant.
At the same time, the Plaintiffs are entitled to claim their shares in the
income of the plaint A and B schedule properties from the date of the suit till
the date of delivery of possession on a separate application to be filled by
them.
14. As per the Order dated 16.10.2023 in I.A.No.1 of 2023, the Appeal has
been dismissed as withdrawn against the Respondents 1, 2 & 4/Plaintiffs 1
and 2 & 2nd Defendant. The Appeal has been dismissed for default against
the Respondents 7 to 9 and 13 to 15/Defendants 5 to 7 & 11 to 13 vide
orders dated 13.04.2017.
15. I have heard learned counsel appearing on behalf of the respective
parties at length and have gone through the Judgment and findings recorded
by the learned trial Court while decreeing the suit. I have also re-appreciated
all the evidences on record, including the deposition of witnesses examined.
16. Sri Madeti Satya Rao, learned counsel for the Appellant/Defendant No.1
contends that the Plaintiffs were never in joint possession or enjoyment of
the schedule property. The First Defendant is not in possession of the
properties except for those specified in the written statement and asserts
that the schedule provided by the Plaintiffs is incorrect. The father of the
Plaintiffs and Defendants 1 and 2 has been deceased for many years, and
the marriages of the Plaintiffs occurred well before the amendment of the
Hindu Succession Act. The 2nd Defendant's marriage was arranged by the
1st Defendant, and the sales made by him were to settle debts incurred for
her marriage, making these transactions binding on the Plaintiffs. The
counsel emphasizes that the Plaintiffs' claim that all co-sharers divided a
fixed deposit from their deceased father's account does not establish that
the Schedule A and B properties are ancestral or that the Plaintiffs are
entitled to a share. Additionally, the counsel argues that the suit is flawed
due to the non-joinder of necessary parties, as some purchasers were not
included in the proceedings.
rd
17. Per contra, Sri G. Rama Gopal, learned counsel representing the 3
Respondent/3rd Defendant, argued that the trial Court appreciated the case
facts and reached a correct conclusion. The reasons given by the trial Court
do not require any interference.
18. With regard to the pleadings in the suit, the findings recorded by the trial
Court and in light of the rival contentions and submissions made on either
side before this Court, the following points would arise for determination:
1) Whether the trial Court is justified in passing the
preliminary decree in favour of the Plaintiffs for partition of
the plaint A-Schedule properties into five equal shares and
to allot such share to the Plaintiff and remaining two
shares to the Defendants 1 and 2?
2) Whether the trail Court is justified in holding that
Defendants 5 to 7 are not bonafide purchasers and
Defendants 8 and 9 are not purchasers for value?
3) Does the trial Court judgment need any interference?
POINT NO.1:
19. In addressing the various contentions, it is essential to consider the
established facts. The relationships among the parties are undisputed. The
Plaintiffs 1 to 3 and the 2nd Defendant are siblings of the 1st Defendant.
Their father, Sanyasayya died intestate approximately 20 years ago. The
Plaintiffs claim a 3/5th share in the A-schedule property and B-Schedule
houses, arguing that these properties were acquired solely by the deceased
Sanyasayya. To support their claim, they rely on Ex.A1 to A4, which are sale
deeds indicating that their father purchased the schedule properties. They
further rely on Ex.A.5 to A.7, which are revenue records showing
Sanyasayya's name in the pattadar pass book for the schedule properties,
with the 1st Defendant acquiring them after their father's death. As seen from
the grounds of appeal and the cross examination of witnesses examined on
behalf of the Plaintiffs, Defendants contended that B-schedule property is
described as ancestral property in the plaint.
st
20. In reviewing the submissions, the Trial Court observed that the 1
Defendant had not claimed in his pleadings that the schedule property was
ancestral property of late Sanyasayya. The Trial Court noted the 1 st
Defendant failed to provide any documentary evidence to support such a
claim, and only stated in his testimony that his father had received some
property from his grandfather. The trial Court also acknowledged that the 1st
Defendant was the only son of deceased, and the Plaintiffs' marriages
occurred during their father's life time, whereas the marriage of the 2nd
Defendant was performed by the 1st Defendant after their father's death. The
Defendants relied on Ex.B5, a sale deed executed by 1 st Defendant in favor
of his wife, lakshmi, to demonstrate the expenses incurred for the 2nd
Defendant's marriage. Although Ex.B5 sale deed includes a recital that the
1st Defendant sold the property to perform the marriage of his sister i.e.,
2nd Defendant. The trial Court has not given credence to the said recitals on
the ground that sale deed was executed in favour of the 1st Defendant's wife
and noted that she was not examined to verify the payment of the
consideration amount.
21. Considering these factors, the trial Court noted that it is implausible to
believe that the 1st Defendant sold the property covered under Ex.B5
specifically for the purpose of funding the 2nd Defendant's marriage. The trial
Court did not place significant weight on the argument from the 1 st
Defendant's counsel that the B-schedule item No.1 property was described
as ancestral property. The trial Court has correctly observed that the entire
plaint should be reviewed as a whole, rather than focusing on isolated
sentences or entries within the schedule to understand the details of the
property. The 1st Defendant contends that, since his name was shown as
owner of purchaser schedule property in the revenue record, he had
acquired absolute ownership of it. However, the trial Court found that the
entries in the revenue records did not confer any legal title to the property.
22. The trial Court relied on the observations made in the case of Balwant
Singh and Another V. Daulat Singh (dead) by L.Rs and others1, wherein
the Hon'ble Apex Court held that "mutation entries do not convey or
extinguish any title and those entries are relevant only for the purpose of
collection of land revenue". The trial Court has considered that the co-heir in
possession cannot make their possession adverse to another co-heir, who is
not in possession, merely by any secret hostile animus on his own part in
derogation of the other co-heirs' title. In contrast, the DW1's testimony during
cross examination clearly indicated that A and B schedule properties, as well
as the Ex.A1 to A4 sale deeds, were in existence at the time of their father's
death. Additionally, DW.1 testified that items 1 and 2 of the B-schedule were
197 (4) ALT page 17
constructed by their father and were part of the property divided by him.
Based on the evidence, the trial Court concluded that the plaint A-schedule
and B-schedule properties were acquired by deceased. Considering these
aspects, the trial Court correctly determined that the Plaintiffs are entitled to
a 3/5th share in both the A and B schedule properties. However, the Plaintiffs
did not succeed in proving the existence of C-schedule properties. The trial
Court provided sound reasons for accepting the Plaintiffs' case based on the
evidence presented.
st
23. The material placed on record reveals that the 1 Defendant sold
Ac.1.98 cents of land in S.No.35/4 in favour of Defendants 3 to 5 under a
registered sale deed dated 19.08.1996 (Ex.B2). To substantiate the said
transaction, the 5th Defendant was examined as DW.3. He testified that he,
along with his family members, purchased the property covered under
Ex.B.2 from the 1st Defendant. However, cross-examination of PW.1
revealed that that DW.3 did not verify the title deeds of the 1 st Defendant nor
did he inquire about the source of the 1st Defendant's ownership of the
property. DW.3 also did not know whether the 1st Defendant had any sisters
or if the Plaintiffs were aware of his possession and enjoyment of the
property. Similarly, the 9th Defendant as DW.2 testified that he did not
enquire the village officials about how the 1st Defendant had acquired the
land. Furthermore, he did not inform the Plaintiffs before purchasing the
property from the 1st Defendant to determine whether they had any
objections. Based on the testimonies of both the Defendants 5 and 9, the
trial Court concluded that they purchased portions of the schedule property
under the assumption that the 1st Defendant was the sole absolute owner.
As a result, the transactions were held not to bind the Plaintiffs.
24. Upon a thorough examination of the evidence on record, this Court
concludes that the trial Court has duly evaluated the evidence in its proper
context and rendered its findings with the accuracy, in alignment with the
material on record. The conclusions reached by the trial Court are grounded
in a sound interpretation of the evidence and do not warrant any
interference. Consequently, the findings stand affirmed, and this point is
answered accordingly.
POINT NOs.2 and 3:
25. During the pendency of the Appeal, the Appellant filed I.A.No.1 of 2023,
seeking leave to withdraw the claim against Respondent Nos.1, 2 and 4 in
the above appeal. In the affidavit, the Appellant/1st Defendant stated that the
plaint schedule property was acquired by his father during his lifetime and
that he, being the only son, took possession and enjoyment of the plaint
schedule properties after his father's demise. He further asserted that the
plaint schedule property was sold to Respondent Nos.5 to 15. However, the
trial Court had already made a clear finding that the sale transactions he
executed in favour of the purchasers were not binding on the Plaintiffs.
During the pendency of the Appeal, on the advice of family members, well
wishers and, village elders, Respondent Nos.1 and 2/Plaintiffs 1 and 2 and
4th Respondent/2nd Defendant, amicably settled the matter out of Court and
executed registered Relinquishment Deed dated 16.12.2022 at the Sub-
Registrar Office, Bhogapuram. As a part of the settlement, the Appellant
paid Rs.25,00,000/- each, amounting to a total of Rs.75,00,000/-, to the
Respondents, who acknowledged receipt through a stamped cash receipt.
Considering the submissions made on behalf of the Appellant, leave was
granted to withdraw the Appeal against Respondents No.1, 2 and 4, and
accordingly, the Appeal was withdrawn as it pertained to those
Respondents.
26. The affidavit filed in I.A.No.1 of 2023 indicates that during the pendency
of the Appeal, the Appellant/1st Defendant admitted to the claims made by
the Plaintiffs and the 2nd Defendant, settling the matter with them by
executing a registered Relinquishment Deed. However, it appears that the
1st Defendant/Appellant did not reach a settlement with the 3rd Plaintiff. The
contents of the affidavit and the material on record clearly establish that the
3rd Plaintiff is also entitled to a 1/5th share in the plaint schedule properties.
Even according to the claim of Plaintiffs 1 to 3, they are entitled to a 3/5 th
share, but the 1st Defendant/Appellant obtained relinquishments from
Plaintiffs 1 and 2 for their respective 1/5 th shares. As a result, this Court
holds that the 1st Defendant/Appellant is entitled to the shares relinquished
by the 1st Plaintiff, 2nd Plaintiff, and the 2nd Defendant, in addition to his own
1/5th share. Therefore, the 1st Defendant/Appellant is entitled to a total of
4/5th of the schedule properties (i.e., plaint A and B schedule properties),
while the 3rd Plaintiff is entitled to a 1/5th share. The trial Court's observation
that the sale transactions held in favour of the Defendants 5 to 9 were not
binding on the Plaintiffs will be considered during the final decree
proceedings when the lands are allotted to the 1st Defendant as part of his
share. This Court agrees with the trial Court's findings and confirms them, as
none of the parties have raised any objections to these directions. When
passing the final decree, the trial Court may take into account the
relinquishment deed executed by the Plaintiffs 1 and 2 and 2 nd Defendant for
their respective shares in favour of the 1st Defendant and accordingly
allocate the appropriate share to the 1st Defendant.
27. With the aforementioned observations, the Appeal is dismissed against
the Respondent No.3 without costs, and the Appeal is dismissed as
withdrawn against Respondent Nos.1, 2 and 4.
28. After careful consideration, the trial Court correctly appreciated the
evidence. There is no reason for this Court to arrive at a different conclusion
than the one arrived at by the trial Court. I hold the findings arrived at by the
trial Court are correct, and no justifiable reasons have been shown by the
appellants/Defendants for arriving at different conclusions. I agree with the
conclusion reached by the trial Court.
rd
29. Accordingly, the Point is answered in favour of the 3 Plaintiff. Given
the preceding discussion, the view taken by the trial court does not call for
any interference, and this Appeal fails. The impugned Decree and Judgment
passed by the trial court is upheld.
30. As a result, the Appeal is hereby dismissed without costs by
confirming the Decree and Judgment in O.S.No.13 of 2000, dated
13.02.2009, passed by the learned I Additional District Judge, Vizianagaram
District.
Miscellaneous petitions pending, if any, in this Appeal, shall stand
closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 18.09.2024
ASR / SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
APPEAL SUIT NO. 333 OF 2009
Date: 18.09.2024
SAK
