Sri B. Arogya Reddy vs Show Reddy
2022 Latest Caselaw 6812 Tel

       HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No. 320 of 2013

JUDGMENT:

This appeal is filed by defendant No.1 aggrieved by

the judgment and decree of the learned III-Additional

District and Sessions Judge (FTC), Ranga Reddy District

passed in O.S.No.814 of 2007, dated 20.02.2013.

Appellant herein is defendant No.1; respondent No.1

herein is plaintiff and respondent Nos. 2 and 3 herein are

defendants 2 and 3 in the suit. The parties will be referred

to as arrayed before the trial Court.

The backdrop of the case leading to filing of this

appeal is as under:

The plaintiff filed the suit for cancellation of sale deed

vide document No.831 of 2007 dated 10.01.2007 executed by

defendant No.1 in favour of defendants 2 and 3 in respect of

the plaint scheduled property; for delivery of actual

physical possession and to send a copy of the decree to the

District Registrar, Hyderabad, for necessary action and also

for permanent injunction restraining defendants 2 and 3

from alienating, changing or altering the nature of the land.

It is stated by the plaintiff that his father Yeruva Chinnappa

Reddy is the absolute owner and possessor of plot No.121,

admeasuring 400 square yards in Sy.No.1009 situated at

Kukatpally, Phase IV, Rajendranagar Taluk, Ranga Reddy

District, having purchased the same from A.P. Housing

Board under sale deed No.8607 of 1988 dated 23.11.1988. It

is stated that his father was aged 95 years and was not in

good health for the last couple of years and on 14.12.2006 as

the condition of his father was critical, the plaintiff informed

the same to his brother and two sisters and that they came

down to Warangal to see their ailing father and in the

absence of the plaintiff, they had obtained thumb

impressions and signatures of their father on some blank

papers and stamp papers and created a forged and

fabricated GPA in favour of defendant No.1 alleged to have

been executed by the father of the plaintiff on 01.12.1989

and got notarized on 03.01.1990 by one Kandula Srinivas

Rao, advocate at Hyderabad, with anti-date. The plaintiff

got issued a legal notice on 22.12.2006 to his brother and

two sisters, who in turn issued a reply notice on 30.12.2006

about the existence of GPA in favour of the 1st defendant

and that the plaintiff got issued a rejoinder on 23.01.2007. It

is further stated that the plaintiff also filed a suit being

O.S.No.481 and 2007 for injunction against his brother and

sisters and in the said suit, his brother Rev.Fr.Y.Sebastian

Reddy (defendant No.1 therein) filed a memo stating that a

registered sale deed was executed in favour of defendants 2

and 3 herein vide document No.831 of 2007. It is stated by

the plaintiff that the said document is voidable as his

brother had no authority to execute the sale deed and that

the same is not valid and binding on the plaintiff. It is

further stated that the father of the plaintiff was hale and

healthy till 2004 and he used to attend functions and as such

there was no necessity for him to execute GPA in the year

1989 and moreover the contents of GPA were in English

language and his father was familiar only with Telugu

language and not familiar with English language. It is

further stated that his brother, two sisters and defendant

No.1 entered into a fraudulent transaction and created

fabricated GPA and that defendant No.1 sold away the

property to defendants 2 and 3, which is not valid and

binding on the plaintiff. Hence, the suit.

In the written statement filed by defendant No.1, it is

stated that the plaintiff has no locus standi to question the

sale deed executed by defendant No.1 in favour of

defendants 2 and 3. The suit scheduled property does not

belong to the plaintiff. The father of the plaintiff is not the

absolute owner of the suit scheduled property and that the

suit property was acquired by the wife of defendant No.1

with her own funds and out of love and affection it was

registered in the name of one Y.Chinnapa Reddy, the father

of the plaintiff, and as such he executed GPA in his favour.

He denied the allegation that on 14.12.2006, the brother and

sisters of the plaintiff went to Warangal to see their ailing

father and that they obtained his signatures and thumb

marks on blank stamp papers. It is further stated that the

plaintiff never gave notice to them on 22.12.2006 and he has

no right over the scheduled property and that he cannot

question the sale deed dated 10.01.2007 and, therefore

prayed to dismiss the suit.

Defendant No.2 filed a written statement, which was

adopted by defendant No.3 on similar lines as that of

defendant No.1. They contended that the GPA was validly

executed by the father of the plaintiff in favour of defendant

No.1 and GPA is not a compulsorily registrable one at that

time and that defendant Nos.2 and 3 are bona fide purchasers

for a value and, therefore, the suit is liable to be dismissed.

During trial, the plaintiff examined himself as P.W.1

and got marked Exs.A-1 to A-8. On behalf of the

defendants, D.Ws.1 and 2 were examined and got marked

Ex.B1.

The trial Court, after considering the entire evidence,

both oral and documentary, and the respective contentions

of the learned Counsel appearing on either side, decreed the

suit of the plaintiff by declaring that the sale deed dated

10.01.2007 executed by defendant No.1 in favour of

defendant Nos.2 and 3 under EX.A7 as null and void and

not binding on the plaintiff. The trial Court also directed

the defendants to put the plaintiff in actual physical

possession of the suit scheduled property and that

defendants 2 and 3 were restrained by way of permanent

injunction from alienating the scheduled property.

Aggrieved by the aforesaid judgment and decree of

the trial Court, the present appeal has been preferred by

defendant No.1. He contended that the suit itself is not

maintainable as it was filed without seeking the relief of

partition, even though it was admitted by the plaintiff in the

plaint that his brother and two sisters have equal rights over

the property in question. Further, the plaintiff filed the suit

without impleading his father, Y.Chinnapa Reddy, who was

alive at the time of filing the suit, though it was alleged that

he was the absolute owner of the suit scheduled property.

It is further contended that the trial Court has erred in not

considering the settled legal position that the initial burden

of establishing the case is always on the plaintiff and

thereupon the onus of defending the suit would shift to the

defendants. The trial Court has also erred in not

considering the significant fact that since the father of the

plaintiff was alive by the date of filing of the suit, he could

have secured the evidence of his father either to confirm or

negate the execution of Ex.A8-GPA. Further, the trial Court

failed to give any finding on the validity of the GPA. There

was no evidence on record to show that the father of the

plaintiff was sick on 14.12.2006 and that the plaintiff has

failed to adduce any evidence to show that he was not

present on that day when allegedly his brother and sisters

had visited their ailing father. It is further contended that

the trial Court has erred in not considering the fact that the

application filed by the plaintiff for sending Ex.A8-GPA for

forensic examination, was dismissed on the ground that the

plaintiff failed produce any material for comparison in

support of his case. Therefore, the appellant/defendant

No.1 requested the Court to allow the appeal by setting

aside the judgment and decree of the trial Court.

Heard the learned Counsel appearing on either side

and perused the entire material available on record.

The plaintiff, who was examined as P.W1, filed his

chief-examination affidavit reiterating the contents of the

plaint. In his cross-examination, he stated that his father

had acquired Ac.4.00 of land at Nandanam village of

Warangal District and his grandfather had acquired Ac.4.00

of land and also a residential house at Nandanam village;

that he is in possession of the suit scheduled properties at

Nandanam village; that his brother sold Ac.5.00 of land at

Nandanam village, which was acquired by his father,

without his consent and that he did not file any case against

him as his brother claimed exclusive rights over that

property; that his father died on 11.09.2007 and he had not

executed any will deed during his life time. He further

stated that earlier he filed a suit being O.S.No.481 of 2007

for injunction against defendant No.1 herein and his brother

in respect of the same property; that when he came to know

that defendant No.1 sold away the property without his

consent, he filed the present suit. He further stated that he

did not give any police complaint against his brother and

sisters for obtaining thumb impressions of his father on

blank papers. He denied the suggestion that his sister

purchased the suit property in the name of her father, who

in turn executed the GPA voluntarily in favour of defendant

No.1 in the year 1989. One Hanumantha Rao and Innayya

Reddy are the attestors of GPA, whereas the said

Hanumantha Rao died in the year 1999.

Defendant No.1, who was examined as D.W.1, stated

in his chief-examination that his wife had purchased the

property out of her own funds in the name of her father,

who is his father-in-law, and in turn he executed GPA on

31.12.1989 in his favour. But, in his cross-examination, he

stated that his wife brought the application form from the

Housing Board, but he does not remember who filled up the

application form; that his father-in-law signed the

application form as an applicant, but he had not seen

personally when it was signed by his father-in-law; that he

does not remember the date of submission of the

application form to the Housing Board. He further stated

that his wife was a Teacher in the year 1986 and he does not

remember the salary details of his wife at that time; that the

suit plot was allotted in the year 1988 and he does not know

whether the letter of allotment was sent to his address or to

the address of his father-in-law; that his father-in-law had

stayed with him in the year 1986 when they applied for

allotment of plot; that the plot was allotted for Rs.36,000/-

in the year 1988; that he does not know whether the sale

consideration of the suit plot was paid through a cheque or

Demand Draft or in installments or in lump sum, as his wife

had paid the consideration; that he cannot produce the bank

account of his wife for the year 1988; that his father-in-law

received the sale deed from Housing Board and gave it to

his wife and they are in possession of the suit property and

thereafter his father-in-law executed a GPA in his favour.

He admitted in his cross-examination that he got validated

the GPA 20 years after its execution. He further admitted

that after receipt of Ex.A2-legal notice got issued by the

plaintiff to his wife and others dated 22.12.2002, he got

validated the GPA. It was suggested to D.W.1 that there

was sufficient time between execution of GPA and its

validation to obtain a registered GPA from his father-in-law

and that there was no problem to obtain a registered gift

deed from his father-in-law in favour of his wife. He

further stated that though his father-in-law executed GPA at

Hyderabad, he had mentioned the address of his father-in-

law at Warangal in the GPA.; that his father-in-law died in

October, 2007; that his father-in-law was hale and healthy

and was able to move from one place to another place one

month prior to his death and he was immobilized for a

period of one month and he was not suffering from any

major ailment.

D.W.2, who is the GPA holder of defendants 2 and 3,

stated in his cross-examination that he worked as a lecturer

in Saint Mary's Degree College; that defendant No.1 is his

employer; that defendant No.2 asked his assistance to

purchase the property; that defendant No.1 was

contemplating to dispose of his property since 2005 and that

he introduced defendant Nos.2 and 3 to defendant No.1 in

the year 2006; that in the house of defendant No.2, the

documents were verified in his presence and that he was

not aware as to what was the sale consideration fixed for

suit scheduled property; that he was not present when the

possession of the scheduled property was delivered to

defendants 2 and 3.

The trial Court, considering the cross-examination of

D.W.1, observed that the burden lies on the defendants to

prove the validity of the GPA. Though as per the directions

of this Court in C.R.P.No.398 of 2012, defendants 2 and 3

filed the Original GPA before the Court on 28.06.2012, they

did not choose to examine their Notary, who drafted it, or

the attestors of GPA to prove the same and as such Ex.A8-

GPA, the sale deed executed by defendant No.1 in favour of

defendants 2 and 3 under Ex.A7 is not valid and binding on

the plaintiff. It was also observed that defendants 2 and 3

did not choose to enter into the witness box to show that

they are bona fide purchasers for a value without notice of

the GPA being fabricated.

The Point that arises for consideration is whether the

finding of the trial Court declaring that Ex.A7-sale deed

dated 10.01.2007 executed by defendant No.1 in favour of

defendant Nos.2 and 3, as null and void and not binding on

the plaintiff, is on proper appreciation of facts or not?

Admittedly, Ex.A1-registered sale deed in respect of

suit scheduled property was in favour of the father of the

plaintiff, vide document No.8607 of 1988 dated 23.11.1988,

having purchased the same from A.P. Housing Board. The

main contention of the plaintiff is that at the age of 95 years

when his father fell sick on 14.12.2006, his brother and two

sisters came to Warangal to see their ailing father and

obtained thumb impressions and signatures of his father on

blank papers in the absence of the plaintiff and got a

fabricated GPA in favour of defendant No.1 with anti-date

on 01.12.1989 and thereafter it was notarized on 03.01.1990

by one Kandula Srinivasa Rao, advocate at Hyderabad. The

said stamp paper was purchased from one Syed

Mohammed, a stamp vendor at Hyderabad and the address

of the plaintiff's father was shown as Jaggayya Gundla

village, Warangal District. Thereafter, the plaintiff got

issued Ex.A2-legal notice on 22.12.2006 to his brother and

the sisters. In the said legal notice, the plaintiff clearly

stated that there was no partition of properties between

him, his brother and two sisters. The plaintiff further stated

that if they misuse the thumb impressions collected from his

father on blank white papers and on Non Judicial Stamp

papers, he will proceed against them by filing civil and

criminal proceedings. In Ex.A3-reply notice dated

30.12.2006, the brother and sisters of the plaintiff stated that

they never visited Warangal on 14.12.2006 and collected

signatures or thumb impressions of their father on blank

papers and on Non Judicial stamp papers. It is further

stated that the father of the plaintiff executed GPA in favour

of the 1st defendant on 01.12.1989 and the same is still

subsisting and that they expressed their willingness for

amicable settlement of the issue. Through Ex.A4-rejoinder

for reply notice dated 23.01.2007, the plaintiff called for the

original GPA dated 01.12.1989 from the 1st defendant and

also expressed his willingness for a meeting at Warangal.

The plaintiff has also issued another legal notice on

31.01.2007 under Ex.A5, in which he expressed his

willingness for a meeting in order to resolve the issue. In a

memo filed by defendants 2 to 4 in O.S.No.481 of 2007

under Ex.A6, it was stated that the suit filed by the plaintiff

for perpetual injunction restraining the defendants is not

maintainable as it was filed after execution of Ex.A7-

registered sale deed dated 10.01.2007. In view of exchange

of legal notices between the parties till 31.01.2007, the

plaintiff filed the suit on 03.09.2007. The written statement

of the 1st defendant was filed on 28.10.2007. It was

contended by the defendants that by the date of filing of the

suit, the father of the plaintiff was alive, but he died on

11.09.2007, hence, he was not impleaded as a party to the

suit. The question of examining the father of the plaintiff as

a witness does not arise as he died prior to the filing of the

written statement by defendant No.1. Defendant No.1 is the

brother-in-law of the plaintiff as he married his sister by

name Y.Mary. Defendant No.1 contended that there was no

partition between the parties and that the suit filed by the

plaintiff for declaration of Ex.A7-sale deed as null and void

and is not maintainable. The plaintiff admitted in his cross-

examination that there was no partition between his family

members. But, the grievance of the plaintiff is that his

brother and two sisters came to their house on 14.12.2006 to

see their ailing father and obtained thumb impressions and

signatures of his father on blank papers in his absence and

got fabricated a GPA in favour of defendant No.1 with anti-

date on 01.12.1989 and as such he sought for declaration of

Ex.A7-sale deed dated 10.01.2007 executed by defendant

No.1 in favour of defendants 2 and 3 in pursuance of GPA

as null and void. Therefore, the contention of the learned

Counsel for the appellant/defendant No.1 that the suit is

not maintainable, as there was no partition between the

parties, is not tenable. Admittedly, Ex.A1-registered sale

deed in respect of the suit scheduled property was in favour

of the father of the plaintiff. D.W.1 stated in his evidence

that the suit scheduled property was purchased by his wife

with her own funds in the name of her father and as such

the father of the plaintiff executed GPA in his name in the

year1989, but he got validated the same 20 years after its

execution in the year 2006. If at all it was purchased by the

wife of D.W.1 in the name of her father in 1989, her father

might have gifted the same to her at a later point of time

instead of executing GPA in the name of her husband

(D.W.1). Moreover, D.W.1 could not state the details of

payment of sale consideration amount either by cash or by

Demand Draft. The trial Court discussed his cross-

examination at length and disbelieved his version. Even

D.W.1 admitted in his cross-examination that his father-in-

law was hale and healthy till one month prior to his death.

When the father-in-law of D.W.1 was active till August,

2007, what was the necessity for him to execute GPA in

favour of D.W.1 in the year 1989. Moreover, there was no

partition among the plaintiff, his brother and two sisters

during the life time of their father and he died intestate.

Initially, the plaintiff filed the suit for injunction and when

he came to know that the suit property was sold out by

defendant No.1 in favour of defendants 2 and 3 on

10.01.2007, the Counsel appearing for the plaintiff not

pressed the suit and filed the present suit for declaration.

P.W.1 clearly stated in his evidence that his father used to

sign in Telugu language and he never affixed his thumb

impression during his life time, but the GPA under Ex.A8

bears the thumb impression of his father. D.W.1 stated that

due to old age, the father of the plaintiff could not sign

properly and as such he affixed his thumb impression. As

per the evidence on record, the father of the plaintiff was

aged 95 years as on 14.12.2006 and he might have aged 72

years in the year 1989. Therefore, the contention of D.W.1

that the father of the plaintiff could not sign at that point of

time and that he affixed his thumb impression on the GPA,

cannot be accepted. As per the memo filed by D.W.1, the

sale deed was executed in favour of defendants 2 and 3 just

before filing of the suit by the plaintiff. Defendants 2 and 3

did not choose to enter into the witness box to show that

they are the bona fide purchasers for a value.

In view of the foregoing reasons, I find that the trial

Court, after evaluating the entire material available on record,

rightly decreed the suit filed by the plaintiff by declaring that

Ex.A7-sale deed dated 10.01.2007 executed by defendant No.1 in

favour of defendants 2 and 3, as null and void and not binding

on the plaintiff and that there is no infirmity or illegality in the

judgment of the trial Court. I do not find any ground

warranting interference with the findings recorded by the trial

Court and as such this appeal is devoid of merits and is liable to

be dismissed.

Accordingly, the Appeal Suit is dismissed, confirming the

impugned judgment and decree, dated 20.02.2013, passed in

O.S.No.814 of 2007 on the file of the III-Additional District and

Sessions Judge (FTC), Ranga Reddy District. There shall be no

order as to costs.

Miscellaneous petitions, if any, pending, shall stand

closed.

_______________________ JUSTICE P.SREE SUDHA 15.12.2022 Gsn