Annasani Hanumasani Rajender ... vs Annasani Anasuya A.Hamsamma C/O. ...
2021 Latest Caselaw 3855 Tel

      THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                                     AND
                  THE HON'BLE JUSTICE G. SRI DEVI


                         APPEAL SUIT No.700 of 2012

JUDGMENT: (per Hon'ble Justice G.Sridevi)

        The present Appeal Suit is filed against the judgment and

decree, dated 04.06.2012 passed in O.S.No.525 of 2007 on the file of

the III-Additional District and Sessions Judge (FTC), Ranga Reddy

District, wherein and whereby, the suit filed by the respondents/

plaintiffs for partition of the plaint schedule properties into two

equal shares and allotment of half share to the

respondents/plaintiffs and half share to the appellants/defendants,

was decreed.

Appellants herein are the defendants and the respondents

herein are the plaintiffs before the trial Court. For convenience of

reference, the ranks given to the parties in O.S.No.525 of 2007, before

the trial Court, will be adopted throughout this judgment.

The plaintiffs herein filed the above suit with the following

reliefs:

1) To pass a judgment and decree that the plaintiffs are entitled to half share in the suit schedule A, B & C properties and for partition and separate possession of such half share in the suit schedule properties to

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the plaintiffs and half share to the defendants in A to C schedule property.

2) A commissioner be appointed to make partition of the suit schedule property and for giving separate possession of plaintiffs' share of the property by metes and bunds.

The facts, in brief, of the plaint are that one late Annasani @

Hanumasani Laxmaiah was the owner of the schedule properties

through ancestors by succession and he got two wives namely i.e.,

1st plaintiff and Ramulamma, the mother of defendants 1 to 7. The

2nd plaintiff is the son of the 1st plaintiff and the defendants are the

children of Ramulamma, who is the second wife of Hanumasani

Laxmaiah. The plaint schedule properties are the properties left by

Laxmaiah. The plaintiffs made several demands for partition of the

plaint schedule properties by metes and bunds, but the defendants

did not cooperate for the partition. The plaintiffs submit that they

are entitled to half share and the defendants are entitled to half share

in the plaint schedule properties. Late Laxmaiah also executed a

partition deed, dated 25.06.1989 bequeathing half share to each of

the wives and it should be acted upon, but the defendants refused to

partition the schedule properties. While the things stood thus, the

plaintiffs came to know that the defendants in collusion with the

revenue officials got mutated the name of their mother in the

revenue records suppressing true facts in respect of 'C' schedule

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property. It is also submitted that in the pahanies for the years 1995-

96, 1997-98, 1998-99 and 2001-2002, the name of the 1st plaintiff was

shown as possessor of 'C' schedule property. The plaintiffs came to

know that with an intention to cause loss to the plaintiffs, the

defendants are trying to dispose of the plaint schedule properties

and as such the plaintiffs got issued legal notice, dated 18.03.2008,

but the defendants did not respond to the same. Hence, the

plaintiffs filed the above suit.

The 1st defendant filed written statement, which was adopted

by the other defendants. In the written statement, the defendants

admitted their relationship with the plaintiffs and also admitted that

the plaintiffs and defendants are the legal heirs of late Laxmaiah, but

they denied that the plaintiffs and the defendants are joint owners of

the suit scheduled properties. It is further stated in the written

statement that the house bearing No.3-6-30, to an extent of 360

square yards was purchased by the defendants from its original

owner in the year 1993 and the house bearing No.3-6-52

admeasuring 144 square yards was given to their mother by late

Laxmaiah and the defendants are in possession and enjoyment of

the same. It is also stated that during the life time of Laxmaiah, the

defendants and plaintiffs have entered into an agreement of sale

with M/s. Jana Chaitanya Housing Private Limited on 26.11.1998 in

respect of the land in Sy.No.518 admeasuring Ac.1.17 gts.; Sy.No.519

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admeasuring Ac.1.33 gts. and Sy.No.525 admeasuring Ac.0.17 gts.,

situated at Budwel Village, Rajendranagar Mandal and the

defendants are not willing to sell the entire property. M/s. Jana

Chaitanya Housing Private Limited, filed a suit for specific

performance and after negotiations it was specifically agreed to

execute a sale deed in respect of land in Sy.Nos.518 and 519 leaving

'C' schedule property i.e., Ac.0.17 gts., of land in Sy.No.526. The

plaintiffs received the entire sale consideration for the whole extent

of the land agreed to sell to M/s. Jana Chaitanya Housing Private

Limited and as such, the plaintiffs have no right and title over 'A' to

'C' schedule properties. It is further stated that 'A' to 'C' schedule

properties exclusively belonged to the defendants and they got

mutated the same in the name of Ramulamma and the pahanies

filed by the plaintiffs have no relevancy and the plaintiffs are not

entitled to any relief and the document dated 25.06.1989 is a

fabricated one and the suit is a speculative one and prayed to

dismiss the suit.

On the basis of the aforesaid pleadings, the trial court

framed the following issues-

1. Whether the plaint schedule properties are the joint family properties of plaintiffs and defendants?

2. Whether the plaintiffs are entitled to a preliminary decree for partition of 'A', 'B', 'C' schedule properties into two equal shares and for allotment of half share to them and for delivery of possession as prayed for?

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3. To what relief?

During trial, on behalf of the plaintiffs, P.Ws.1 and 2 were

examined and Exs.A1 to A17 were got marked. On behalf of the

defendants, D.Ws.1 and 2 were examined and Exs.B1 to B7 were

marked. Ex.A18 was marked during the cross-examination of

D.W.1.

The trial Court, on consideration of the rival contentions and

also the entire material available on record, decreed the suit.

Against the said judgment and decree, the defendants filed the

present appeal.

Heard learned Counsel for the appellants/defendants, learned

Counsel appearing for the respondents/plaintiffs and perused the

record.

Learned Counsel for the appellants/defendants would submit

that the trial Court miserably failed to appreciate the documents

Exs.B1 to B7 and no reasons were assigned for discarding the same;

that the documents Exs.B1, B2 and B7 are sufficient to prove that 'A'

schedule property is not at all the joint family property, but

purchased independently by defendants and the 'B' schedule

property was given to the defendants by their grandmother; that the

trial Court miserably failed to frame a specific issue, as per

pleadings and evidence of defendants, with regard to H.No.3-6-30

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(new), 4-13 (old) and also discarded Ex.B7 without assigning any

reasons and, hence, the decree is liable to be set aside; that the trial

Court came to a wrong conclusion that the suit properties are joint

family properties and the plaintiffs are entitled to half share each

which is totally contrary to law; that the plaintiffs created,

forged/concocted a false story of partition deed dated 25.06.1989

without examining any witnesses to prove the same and no partition

is disclosed in their earlier suit O.S.NO.288 of 1990, which was

dismissed, and hence the present suit itself is not at all maintainable;

that the trial Court failed to appreciate that earlier the plaintiffs got

issued a legal notice dated 16.04.1990 without mentioning partition

deed, dated 25.06.1989 and filed O.S.No.288 of 1990, which was

dismissed on 02.08.1995, and hence the present suit is not at all

maintainable on facts and law; that the trial Court miserably failed

to prove the partition deed dated 25.06.1989, joint possession of

undivided Hindu family etc., and hence the suit is liable to be

dismissed; that the trial Court cannot unsettle the already settled

issues as stated; that the trial Court ought to have rejected oral

evidence without pleadings of plaintiffs and prayed to allow the

appeal suit. In support of his contentions, he relied upon the

following judgments:-

1. State of M.P. v. Uma Devi1

2. Rangammal v. Kuppu Swami2

(2015) 8 SCC 672

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3. Smt. Yamunabai Anantrao Adhav v. Anantrao Shivaram3

4. B. Chandrakala v. A. Anuradha4

5. Lakkoji Mohan Rao v. Lakkoji Vishwanatham5

6. Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust v. Chandran6

7. State of Uttarakhand v. Mandi Sri Laxman Maharaj7

8. Phool Patti v. Ramsingh8

Learned Counsel appearing for the respondents/plaintiffs

would submit that the 1st plaintiff being the first wife of Laxmaiah,

and the 2nd plaintiff being the son of the 1st plaintiff and Laxmaiah

and they being the legal heirs of A. Laxmaiah, who died intestate,

are entitled to half share in the schedule property, which was left by

the deceased A.Laxmaiah. He further submits that when the

plaintiffs demanded for partition of the suit schedule property, the

defendants did not cooperate for the same and as such, the plaintiffs

filed the suit and after considering the oral and documentary

evidence adduced on behalf of both the parties, the trial Court has

rightly decreed the suit and that there are no merits in the appeal.

In support of his contention, learned Counsel for the respondents

relied upon the following judgments of the Apex Court as well as

this Court.

(2011) 12 SCC 220

AIR 1988 SC 644

(2015) 15 ALT 383 DB

(2012) 3 ALD 327

(2017) 3 SCC 702

(2017) 9 SCC 579

(2015) 3 SCC 164

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1. Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal9

2. Toyla etc. V. State of M.P. and another etc.10

3. The Greater Bombay Cooperative Bank Ltd., v. Mr. Nagraj Ganeshmal Jain and others11

4. Akkireddi Narayanamma and another v. Adhikari Appalanaidu and another12

The case of the plaintiffs is that they filed the aforesaid suit for

partition of schedule properties stating that the 1st plaintiff is the

first wife and the 2nd plaintiff is the son through 1st wife and the

defendants are the sons of late A.Laxmaiah, through his second wife

Ramulamma and when the plaintiffs demanded for partition of the

suit schedule properties, the defendants did not respond and as such

they filed the suit. The case of the defendants is that the suit

schedule properties are their exclusive properties and the plaintiffs

are not entitled to any share. A perusal of the evidence of D.W.1

would show that his father has got two wives and the 1st plaintiff is

the 1st wife and the 2nd plaintiff is the son of the 1st plaintiff and his

father and that all the defendants are the legal heirs of his father

through second wife Ramulamma. He admitted that the lands in

Sy.Nos.518, 519 and 526 are their ancestral property. He further

admitted that when his father was alive, they sold away Ac.3-27

guntas of land to Jana Chaitanya Housing Company under an

1992 Law Suit (SC) 190

2014 Law Suit (SC) 701

Civil Appeal No.009777-009778 of 2017, dt. 26.07.2017

(2011) 2 ALD 71

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agreement of sale and the plaintiffs are parties along with them. He

further admitted that they executed sale deed in respect of

Sy.Nos.518 and 519 in favour of Janachaitanya Housing Company

and received consideration for two survey numbers excluding 'C'

schedule property. He further admitted that they have not filed any

document to show that the plaintiffs received sale consideration

from Janachaitanya Housing Society in respect of 'C' schedule

property and they did not pay any amount to the plaintiffs for 'C'

schedule property. He also admitted that they did not file any

document to show that 'A' schedule property was purchased by

himself and D-3 and 'B' schedule property was purchased by his

father. He further admitted that his father did not execute any will

or settlement bequeathing 'B' schedule property to them.

D.W.2, who is the third party to the suit, also admitted the

relationship of the plaintiffs and defendants with late Laxmaiah.

He also admitted that his maternal grandmother by name

Chittamma died intestate and she did not execute any will deed. He

further admitted that he sold the house bearing No.1-13 to the 1st

defendant and the document dated 30.12.1993 does not reveal as to

how he acquired that property.

Learned Counsel for the respondents/plaintiffs, while

answering to the contentions raised by the learned Counsel for the

appellants/defendants, vehemently argued that the appellants have

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brought out only those contentions which are in their favour, but the

major part of the cross-examination, which demolishes their own

case, has not been brought to the notice of this Court. He further

argued that the claim of the defendants that by virtue of the

documents Exs.B1 and B7, they became the owners of the suit

schedule 'A' property, is contrary to the evidence on record and

further from the document-Ex.B1, which is a registered General

Power of Attorney, dated 30.12.1993, the defendants cannot claim

right or ownership over the suit schedule 'A' property. Ex.B7, which

is an un-registered agreement of sale without possession, does not

confer title to the alleged purchase made by the defendants over the

suit schedule 'A' property. Moreover, according to the learned

Counsel for the respondents, the description of the property in the

aforesaid two documents, through which the defendants claimed do

not match with the properties as mentioned in the plaint 'A'

schedule property. Thus, the claim of the defendants that they

became the owners of the suit schedule 'A' property by virtue of

Exs.B1 and B7 is not correct and accordingly, the learned Court

below has rightly come to the conclusion that 'A' to 'C' schedule

properties are the joint properties of the parties and are liable for

partition. Learned Counsel for the respondents/plaintiffs has

drawn our attention to the own admission of D.W.1 during his

cross-examination, which is extracted hereunder:-

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"We have not filed any document to show that 'A' schedule property was purchased by myself and D-3, 'B' schedule property was purchased by my father. My father did not execute any will or settlement bequeathing 'B' schedule property to us."

Thus, it is submitted by the learned Counsel for the

respondents/plaintiffs that this admission of D.W.1 will prove the

case of the plaintiffs that 'A' to 'C' schedule properties are the joint

properties of the parties to the suit and hence they are liable for

partition amongst the parties. In order to support of the above

contentions, learned Counsel for the respondents relied upon the

judgment of the Hon'ble Supreme Court in Civil Appeal No.9777

and 9778 of 2017 (The Greater Bombay Cooperative Bank Limited v.

Mr. Nagraj Ganeshmal Jain and others), wherein it was held that

"immovable property can be transferred only by a registered

document. There can be no transfer of any right, title or interest of

any immovable property except by way of a registered document. "

In Suraj Lamp and Industries (Pvt.) Limited v. State of

Haryana13, it was categorically held by the Apex Court as under:

"18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

(2012) 1 SCC 656

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19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Section 54 and 55 of T.P. Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of T.P. Act). According to the T.P. Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the T.P. Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

24. We, therefore, reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of the 'G.P.A. sales' or 'SA/GPA/will transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53-A of the T.P. Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records."

Thus, relying upon the aforesaid case laws, learned Counsel

for the respondents/plaintiffs vehemently contended that the claim

of the defendants that they have proved purchase of suit schedule

'A' property from D.W.2 under Ex.B1 and Ex.B7 falsifies to their

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claim as the said documents are not admissible under law, which

cannot confer any title to the defendants, rather the plaintiffs

through the document Ex.A6, dated 25.06.1989, though titled as

partition deed, executed by the deceased Laxmaiah during his life

time, clearly establishes the fact that, it was the wish/will of their

father Laxmaiah to bequeath/settle his properties among his two

wives and accordingly, it was reduced into writing under Ex.A6.

Thus, the claim of the defendants that none of the witnesses

examined out of 15 witnesses to prove Ex.A6/Partitition deed is

incorrect. The fact remains that one of the attesters to Ex.A6 viz.,

S.K.Habeeb was examined as P.W.2 in front of whom Ex.A6 was

scribed and the executant has signed in his presence. It is also

contended by the learned Counsel for the respondents/plaintiffs

that Ex.A6 does not require any stamp duty as the said document is

a will/wish of the executant, but not a partition deed and hence the

contention of the appellants/defendants that Ex.A6 being the

partition deed requires stamp duty and as it was not duly stamped

is not admissible in evidence, is not correct. In this connection,

learned Counsel for the respondents/plaintiffs relied upon the

judgment of the Apex Court reported in Tamboli Ramlal Motilal v.

Ganachi Chimalal Keshavalal (9 supra), wherein the Hon'ble Apex

Court at paragraph No.16 of the judgment held that "it is also settled

law that nomenclature of the document is hardly conclusive and

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much importance cannot be attached to the nomenclature alone

since it is the real intention which requires to be gathered." Hence, it

was contended that the trial Court has rightly exhibited the said

document and has given the finding of fact which cannot be agitated

by the appellants/defendants at this stage.

With regard to 'C' schedule property, learned Counsel for the

respondents/plaintiffs has drawn our attention to the cross-

examination of D.W.1 to show that the admissions of D.W.1

demolishes the whole case of the appellants/defendants that the

respondents/plaintiffs are not entitled for partition of 'C' schedule

property. The relevant portion of the cross-examination of D.W.1 is

extracted hereunder:-

"We executed the sale deed in respect of Sy.No.518 and 519 in favour of Jana Chaitanya Housing Company. Plaintiffs did not join as parties to the sale deed in favour of Jana Chaitanya Housing Company. We have not filed any document to show that the plaintiffs received the sale consideration from Jana Chaitanya Housing Company in respect of 'C' schedule property. We did not pay any amount to the plaintiffs for 'C' schedule property. "

Thus, relying upon the aforesaid admissions made by D.W.1

during his cross-examination, learned Counsel for the

respondents/plaintiffs submits that the aforesaid admissions of

D.W.1 clearly show that the plaintiffs never consented for the sale of

the property pertaining to Sy.Nos.518 and 519 and they never

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received the sale considerations from Jana Chaitanya Housing

Company, which clearly goes to show that the plaintiffs are also

having equal rights in 'C' schedule property and that 'C' schedule

property is still joint property of the parties, which is liable for

partition in equal shares. In this regard, the contention of the

appellants/defendants that the protected tenancy rights were

surrendered and the defendants purchased 'C' schedule property by

way of a simple money receipt, which was marked as Ex.B3, falsifies

the claim of the defendants. The claim of the defendants cannot

withstand the scrutiny of law as the P.T. rights cannot be sold or

purchased by executing a simple receipt. Further, the author of the

alleged document Ex.B3 K.Harinath Reddy was not examined in the

aforesaid case and as such, the claim of the defendants that 'C'

schedule property is their absolute property cannot be sustained.

While relying upon the document Ex.A17, which is the order of the

Special Grade Deputy Collector and Revenue Divisional Officer,

Chevella Division, Rangareddy District, the learned Counsel for the

respondents/plaintiffs submitted that by virtue of the orders under

Ex.A17, the orders passed by the M.R.O. under Ex.B2 were set aside

holding that 'C' schedule property belongs to A.Laxmaiah. The said

order was not challenged by the defendants and as such, the order

under Ex.A17 has attained finality. In the same way, when the

defendants are claiming the ownership of 'A' and 'C' schedule

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property, it is for the defendants to establish the same by way of

documentary and oral evidence, but the own admissions of D.W.1

clearly proves the fact that the defendants are not having any

documentary proof to show that 'A' and 'C' schedule properties are

the self-acquired properties of the defendants. Even according to the

defendants, Exs.B1 and B7 do not relate to 'A' schedule property,

rather the plaintiffs have proved their case through cogent evidence

by examining P.Ws.1 and 2 and also by producing the documents

Exs.A1 to A4, A.6 and A.17. That apart, the defendants by their own

admissions and their documents strengthened the case of the

plaintiffs that the suit schedule properties are the joint properties of

the parties and hence, they are liable for partition.

As rightly pointed out by the learned Counsel for the

respondents/plaintiffs that the burden heavily lies upon the

appellants/defendants, as they claimed that the schedule properties,

particularly 'A' and 'C' schedule properties are not the joint family

properties, but they are their self acquired properties. However, the

documents filed in support of their claim, does not satisfy the

statutory requirements, rather the documents Exs.A17, B-1 and B-7

fully supported the case of the respondents/plaintiffs. The learned

trial Court has categorically dealt with all the documents filed by the

respective parties and has given its findings with cogent reasons.

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Further, in view of the admissions made by D.Ws.1 and 2, the

trial Court has given a categorical finding that the suit schedule

properties are the ancestral properties of Laxmaiah, who died

intestate leaving behind the plaintiffs and the defendants

bequeathing the suit schedule properties in favour of the plaintiffs

and the defendants and as such the plaintiffs are entitled for a share

in the suit schedule properties. Though the defendants contended

that they are the exclusive owners of the suit schedule properties by

virtue of Exs.B1 to B6, but in view of the admissions made by

D.Ws.1 and 2, the said contention is unsustainable and hence, the

trial Court has rightly held that the suit schedule properties are the

joint family properties of the plaintiffs and defendants and that the

plaintiffs are entitled to half share and the defendants are entitled to

half share in the suit schedule properties. Therefore, we do not find

any error or perversity in the findings arrived at by the learned trial

Court.

In view of the foregoing reasons, we find that the findings of

the trial Court, which are cogent, clear and clinching, do not warrant

any interference by this Court and as such this appeal is devoid of

merit and is liable to be dismissed.

Accordingly, the Appeal Suit is dismissed, confirming the

judgment and decree, dated 04.06.2012 passed in O.S.No.525 of 2007

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on the file of the III-Additional District and Sessions Judge (FTC),

Ranga Reddy District. There shall be no order as to costs.

Consequently, miscellaneous petitions, if any, pending shall

stand closed.

__________________________ A. RAJASHEKER REDDY, J

_____________ G. SRI DEVI, J

30.11.2021 gkv/Gsn.