Telangana High Court

M/S. Kakatiya Infra vs Shyamapanth Venkatram on 3 August, 2021

Bench: M.S.Ramachandra Rao, T.Vinod Kumar

      HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                       AND
             HONOURABLE SRI JUSTICE T. VINOD KUMAR

             CIVIL MISCELLANEOUS APPEAL NO.192 OF 2021

                                 JUDGMENT:

(Per Sri Justice M.S.Ramachandra Rao)

This Civil Miscellaneous Appeal is preferred against the order

dt.22.02.2021 passed by the VII Additional District Judge at Warangal in

I.A.No.422 of 2018 in O.S.No.184 of 2018.

2. The appellant herein is defendant No.10 in the suit.

3. The 1st respondent herein / plaintiff filed the said suit for partition

and separate possession of the suit schedule properties and for allotment

of 1/3rd share to him and to declare that certain sale deeds and gift

settlement deeds mentioned in the prayer in the plaint be treated as null

and void and not binding on him.

4. The plaintiff, one Rajeshwar Rao, Hemalatha, Swamy and Sri

Kishan are the children of Sri Laxman Rao @ Kakaji and his wife Smt.

Laxmibai.

5. Kakaji had died in 1964 and his wife Laxmibai died on 25.09.2000

intestate.

6. Swamy died on 08.10.2010 unmarried and even Rajeshwar Rao

died in 2016 unmarried. Defendant No.1, Smt. Sandhya, Dr. Ravinder,

Smt. Udaya and Smt. Sudha are the children of Sri Kishan and his wife

Laxmi Narsu Bai.

7. It is not in dispute that Sri Kakaji purchased the suit schedule

properties in the name of his wife Laxmibai under a registered sale deed

dated 1st Bahaman 1353 Fasli. After the death of Kakaji in 1964,

O.S.No.24 of 1968 was filed for partition and separate possession before

the Subordinate Judge at Warangal by the 1st respondent against his

brothers and mother. Thereafter, the suit ended in a compromise on

24.04.1968 and a compromise decree Ex.P4 was passed.

8. Though respondents 2 and 3 contended that Laxmibai during her

life time executed a Will dt.25.10.1990 and a Codicil dt.26.05.1994, the

originals of the said Will and Codicil were not filed in the Court and the

appellant herein filed photo copies of the said two documents.The Court

below did not receive them as secondary evidence under Section 63 of

the Evidence Act by passing a detailed order and the said order was not

challenged by respondents 2, 3 and the appellant.

9. On the death of Laxmibai on 25.09.2000, under Section 16 of the

Hindu Succession Act, the property would devolve on all her Class-I

legal heirs.

10. However, it appears that Swamy, claiming that he owned the

property had executed a gift settlement deed Ex.P3 dt.25.04.2003 gifting

the plaint A schedule property in favour of the 1st defendant and her

husband the 2nd defendant / respondents 2 and 3 as if it was owned by

him exclusively as per the decree Ex.P4 passed in O.S.No.24 of 1968.

11. Subsequently, under Ex.P2 sale deed dt.26.06.2018, respondents 2

and 3 sold 1000 square yards in favour of the appellant/defendant no.10

in the plaint A schedule property. Thereafter, subsequent documents

Ex.R9 to R13 and R18 to R21 also came to be executed.

12. The 1st respondent / plaintiff challenged in the suit the right of

Swamy to execute the gift settlement deed Ex.P3 dt.25.04.2003 in favour

of the 2nd respondent and her husband the 3rd respondent and contended

that under Ex.P4 decree in O.S.No.24 of 1968, the said property did not

fall to the share of Swamy and so he could not have executed the said

document in favour of respondents 2 and 3 in regard to Item no. A of the

suit schedule property.

13. We are not concerned with the other items of suit schedule

properties in this CMA.

I.A.No.422 of 2018

14. Respondent No.1 filed I.A.No.422 of 2018 under Order XXXIX

Rules 1 and 2 CPC to grant an ad interim injunction restraining

respondents 2, 3 and the appellant from changing the physical features /

existing features by converting the open site in any manner for

construction / development by way of a commercial and residential

complex in item No.A of the suit schedule property till the disposal of the

suit on the basis of the above contentions.

The stand of 2nd respondent

15. The 2nd respondent / 1st defendant filed a counter denying the

plaint allegations and stating that Swamy had executed a registered gift

settlement Ex.P3 dt.25.04.2003 under which the Item No. A of schedule

property was gifted to her and her husband, the 3rd respondent. She

denied the right of the 1st respondent to the said property and contended

that Ex.P2 sale deed dt.26.06.2018 was voluntarily executed by her and

the 3rd respondent in favour of the appellant.

The stand of the appellant/defendant no.10

16. The appellant filed a counter adopting a similar stand.

17. It also pleaded that the suit had been filed 15 years after execution

of Ex.P3 gift settlement deed and that the son of the 1st respondent had

filed O.S.No.41 of 2003 before the II Additional District Judge,

Warangal against the 1st respondent and some of the other respondents,

which was dismissed. It stated that the existing structure in Item No.A of

schedule property was dismantled and it is open place except for a

watchman's quarter and a wash room.

18. It is contended that in view of the compromise dt.24.04.1968 in

O.S.No.24 of 1968, the instant suit itself is not maintainable and that it

operates as res judicata.

19. It is also contended that the 1st respondent / plaintiff never resided

in Item A of the plaint schedule property and he resided at a village in

Karimnagar District for some time and is now residing at Kishanpura of

Hanamkonda.

20. According to the appellant, the 1st respondent should have also

sought relief of cancellation of the gift settlement deed Ex.P3

dt.25.04.2003 and also Ex.P2 registered sale deed dt.26.06.2018.

21. In the Court below, the 1st respondent marked Exs.P1 to P4,

respondents 2 and 3 marked Exs.R1 to R8 and the appellant marked

Exs.R9 to R50.

Order in I.A.No.422 of 2018

22. By order dt.22.02.2021, the Court below allowed I.A.No.422 of

2018.

23. The Court below recorded that there was a compromise decree

passed in O.S.No.24 of 1968 under Ex.P4 with a plan annexed thereto;

that Item A is the house property and was the exclusive property of late

Laxmibai, who is the mother of the 1st respondent; that after compromise

decree in O.S.No.24 of 1968, Item A of the plaint schedule property was

mutated in the name of S. Swamy who then gifted under Ex.P3 gift

settlement deed dt.25.04.2003 to respondents 2 and 3 and they got it

mutated in their names on 23.06.2003. It also held that they enjoyed the

property till 2018 and then sold 1000 square yards of it to the appellant

under Ex.P2 registered sale deed dt.26.06.2018.

24. It then referred to the contents of Ex.P3 registered gift settlement

deed executed by Swamy in favour of respondents 2 and 3 and also

Ex.R2 registered Will deed dt.08.07.2010 executed by Swamy in favour

of respondent No.2 and observed that though it is recited that Swamy was

the absolute owner of the A schedule property, in Ex.P4 decree, Item No.

A of schedule property was not allotted to him; and he wrongly

mentioned in Ex.P3 gift settlement deed dt.25.04.2003 that he got it

under the decree in O.S.No.24 of 1968.

25. It observed that in Ex.R2 registered Will dt.08.07.2010, Swamy

stated that he got item A of the plaint schedule property under the Will

deed dt.25.10.1990 and Codicil dt.26.05.1994 allegedly executed by late

Laxmibai, and the contents of Ex.R2 registered Will are contrary to the

contents of Ex.P3 gift settlement deed.

26. In any event the Will deed dt.25.10.1990 and the Codicil

dt.26.05.1994 have not been filed before the Court below by respondents

2 and 3 who claimed that Swamy got the property through the said Will

and Codicil. It further observed that Swamy had no authority to execute

Ex.P3 gift settlement deed in favour of respondents 2 and 3 and therefore

it can be said that the 1st respondent had established his prima facie case.

27. It also observed that prima facie it has to be presumed that

Laxmibai, owner of the A schedule property, died intestate and under

Section 16 of the Hindu Succession Act, the property would devolve on

her Class-I legal heirs.

28. It then observed that photographs filed under Ex.R39 show that the

appellant was making hectic efforts to construct a building in 1000

square yards in Item No A of schedule property and if it is completed, it

would be difficult for the 1st respondent to ascertain his 1/3rd share in it.

29. It also referred to Ex.R28 a Photostat copy of Samagra Diguva

Angeekara Patram dt.03.10.2001 produced by the appellant and observed

that it is an unregistered document, that the recitals therein indicate

relinquishment of rights by some parties in favour of other parties, and

the said document is hit by Section 17(1) of the Registration Act and it is

inadmissible in law. It also stated that the document appears to be

executed on 19.09.2001, but two of the Non-Judicial Stamp papers, on

which it is written, are dated 22.09.2001 and 26.09.2001 and so its

execution is suspicious.

30. It also pointed out that even under Ex.R28 understanding Swamy

got only 800 square yards, but A schedule property is 1200 square yards.

31. It then held that the 1st respondent is the joint owner of the A

schedule property and he need not be in actual possession of the A

schedule property and his joint and constructive possession is sufficient

and mere mutation in the name of Swamy in municipal records would not

create any right in favour of respondents 2 and 3.

32. It therefore held that the 1st respondent had established prima facie

case, that balance of convenience was in his favour, and irreparable loss

would be caused to him if respondents 2, 3 and the appellant are not

restrained from changing the physical features or the existing features by

permitting development in the Item No.A of schedule property till the

disposal of the suit.

The present Civil Miscellaneous Appeal

33. Assailing the same, this Appeal is filed by the appellant.

34. Counsel for the appellant contended that the view taken by the

Court below is not valid in law, that it has misconstrued the material

placed before it and erred in granting interim relief to the 1st respondent.

35. But the counsel could not dispute that the registered sale deed in

respect of the Item No. A of schedule property was in the name of

Laxmibai and it was not the subject matter of O.S.No.24 of 1968 and

only some plots were subject matter of the said suit.

36. Therefore, the recital in Ex.P3 gift settlement deed dt.25.04.2003

that Swamy got the A schedule property pursuant to the decree in

O.S.No.24 of 1968 is prima facie incorrect.

37. This recital in Ex.P3 is contradicted by the recital in Ex.R2

registered Will dt.08.07.2010 executed by Swamy in favour of the 1st

respondent, which recites that the property was obtained by Swamy

under the Will deed dt.25.10.1990 and Codicil dt.26.05.1994 executed by

Laxmibai in his favour.

38. Any way the Will deed dt.25.10.1990 and Codicil dt.26.05.1994

have not been filed before the Court below and an attempt to file photo

copies of the same did not succeed.

39. Therefore, the prima facie finding of the Court below that the Item

No.A of schedule property is the property of Laxmibai, does not warrant

any interference.

40. Consequently, on her death on 25.09.2000, the said property would

devolve on all her five (5) children including the 1st respondent / plaintiff.

41. Thus, prima facie the 1st respondent would be a co-owner and

possession of one co-owner has to be deemed to be the possession of the

other co-owner as well.

42. Therefore, Swamy, one of the co-owners could not have executed

prima facie Ex.P3 registered gift settlement deed dt.25.04.2003 in favour

of respondents 2 and 3 and they in turn could not have executed Ex.P2

registered sale deed dt.26.06.2018 in favour of the appellant.

43. Mere long possession of respondents 2 and 3 between 2003 and

2018 will not prima facie confer any title on both of them since one co-

owner is deemed to be in possession on behalf of other co-owners as

well. Admittedly, there is no pleading of adverse possession raised by

respondents 2 and 3 in their written statements.

44. The contention of the appellant based on Samagra Diguva

Angeekara Patram dt.03.10.2001 also prima facie appears to be

untenable since the same is an unregistered document, and any

relinquishment of rights under the said document would require

registration to have any effect. Also, in the said document, Swamy was

given only 800 square yards, but respondents 2 and 3 are claiming rights

over 1327 square yards.

45. More importantly, one A. Ram Babu had filed O.S.No.18 of 2003

on the file of the II Additional District Judge, Warangal against Swamy

for declaration of title and perpetual injunction in respect of a portion of

the A schedule property. But the suit was dismissed on 25.10.2005.

Therefore, A. Ram Babu filed A.S.No.689 of 2005 in the High Court. A

Division Bench of this Court on 01.12.2005 restrained both parties from

alienating the suit schedule property pending disposal of the Appeal.

46. During the pendency of the suit O.S.No.18 of 2003, Swamy had

executed Ex.R1 gift settlement deed dt.25.04.2003. But he did not inform

this fact to the trial court.

47. After the death of Swamy, it is alleged by the 1st respondent that

respondents 2 and 3 filed an Application to bring them on record as the

legal representatives of Swamy, and having got so impleaded in 2010,

they are bound by the injunction order granted on 01.12.2005 in ASMP

No.2383 of 2005 inA.S.No.689 of 2005. But they violated the said

injunction order by executing Ex.P2 sale deed in favour of the appellant.

We find force in this contention.

48. These facts have not been brought to the notice of the Court below

by respondents 2 and 3 in the counter affidavit filed by them in

I.A.No.422 of 2018.

49. We also prima-facie do not find any substance in the plea of the

appellant that the 1st respondent should have relief of cancellation of the

gift settlement deed Ex.P3 dt.25.04.2003 and also Ex.P2 registered sale

deed dt.26.06.2018 because he is not eo nomine a party to these

documents.

50. It is settled law that a plaintiff, who is not eo nomine a party to a

sale deed, need not pray for cancellation of the sale deed and it is open

for him to question the validity and binding nature of the sale deed. It is

prima-facie also not necessary for the plaintiff to file the suit within 3

years from the date of alienations.

51. In Ramaswamy vs. Rangachariar1, the Full Bench of Madras

High Court held that that in respect of alienations by the father to which

the minor son was not eo-nomine party, which are challenged by him in

the suit for partition against his father, the plaint need not contain a

prayer for a declaration or cancellation. It quoted the following passage

in Unni v. Kunchi Amma2 :

"If a person not having authority to execute a deed , or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist."

The Supreme Court approved the decision in Ramaswami (1

supra) in Nagappan v. Ammasai3.

In Bijoy Gopal vs. Krishna Mahishi Debi4 , same principle has

been followed regarding alienations made by a widow of the last male

owner which are sought to be impeached by the reversioners as not

binding on them. The Privy Council held that the relief for declaring that

a sale deed is null and void when prayed in a plaint by a party, who is not

eo nomine a party to it, is in fact an unnecessary relief.

In Patamata Seshagiri Rao v. Pamidimukkala Sree

Ramachandra Rao and others5 a learned single Judge of this court held

that if a suit is filed by a son for partition of joint family properties , and

there is a sale by his father, it is not necessary for him to pray for