Smt. Nadipinneni Padmaja vs Smt. Doddapaneni Sampoorna
2022 Latest Caselaw 5954 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.469 of 2015

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 09.12.2013 in A.S.No.4 of 2010 on the file of VII

Additional District Judge, Bodhan, Nizamabad, which is arising

out of the judgment and decree dated 04.11.2009, passed in

O.S.No.49 of 2008 on the file of Senior Civil Judge, Bodhan,

Nizamabad.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court. The appellant is the 6th defendant.

3. The plaintiff has filed a suit for partition and separate

possession and for share in schedules 'A', 'B', and 'C', of suit

schedule property. As the suit is for partition, it is necessary to

discuss about the properties. 'A' schedule properties are the

agricultural lands situated in Sy.Nos.342/1 and Sy.No.342/1/1 and

342 admeasuring Ac.1-07 gts, Ac.1-20 gts and Ac.2-13 gts

respectively, situated at Varni Shivar of Varni Mandal, Nizamabad.

'B' schedule properties are also the agricultural lands in

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Sy.No.318/1 admeasuring Ac.2-28 gts situated at Veerapur shivar

of Varni Mandal. 'C' schedule properties relates to residential

house bearing H.No.9-16 situated at Satyanarayanapuram Village,

Varni Mandal, Nizamabad District.

4. It is important to discuss about the relationships of the

parties as the suit is relating to partition. The plaintiff is the elder

sister of the 1st defendant. Defendant Nos.3 and 4 are the sons of

Smt.Kothapally Durga Vijaya Laxmi, who is the elder sister of the

plaintiff. Defendant Nos.5 and 6 are the younger sisters of the

plaintiff and the 2nd defendant is the mother of the plaintiff. They

all belong to Hindu Joint Family and have coparcenery rights in

'A', 'B', and 'C' schedule properties, wherein it is the claim of the

plaintiff that he is entitled for one share.

5. On the other hand, the defendant Nos.1 to 6 have filed a

written statement contending that the suit is not maintainable. It is

the further contention of the defendants that late Yelamanchi

Subramaneshwar Rao migrated to Nizamabad District, died on

24.12.1964 leaving behind his four sons namely Venkatehwar Rao,

Prasad Rao, Madhava Rao and Mohan Rao and except Madhava

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Rao, all the three sons died. During their life time, all of them have

partitioned both movable and immovable properties. Later, the

marriage of the plaintiff was performed on 07.05.1980 and at the

time of marriage, an amount of Rs.50,000/-was given to her

towards 'pasupukumkuma'. The written statement further

discloses that Venkateshwar Rao purchased the 'A' schedule

properties and died on 12.09.2002 and after his death i.e., on

12.09.2002, the properties got mutated in the name of the 1st

defendant. Since the marriage of the plaintiff was performed on

07.05.1980, she is not entitled to claim 1/6th share out of the

properties mentioned in 'A' schedule and that the marriage of the

5th defendant was performed on 28.03.1986 and therefore,

defendant Nos.5 and 6 alone are entitled for partition due to the

reason that they got married subsequent to amendment of Hindu

Succession Act and it is also contended that the suit is barred by

limitation.

6. Considering the pleadings, the trial Court has framed the

following issues:-

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"1. Whether the plaintiff is entitled to claim 1/6th share out of the property mentioned in the 'A' and 'B' and 'C' schedules annexed with the plaint?

2. Whether the plaintiff entitled to claim future mesne properties as prayed?

3. To what relief?"

7. On behalf of the plaintiff, P.W1 was examined and Exs.A-1

and A-2 were marked and on behalf of the defendants, D.Ws.1 to 3

were examined.

8. Being aggrieved by the same, the unsuccessful plaintiff has

preferred an appeal vide A.S.N.4 of 2010 before the VII Additional

District Judge, Nizamabad, Bodhan.

9. Considering the material on record, the first appellate Court

has framed the following points for consideration:-

"i. Whether the suit schedule properties are Joint Hindu Family properties?

ii. Whether plaintiff is entitled to 1/6th share in the suit schedule properties?

iii. To what relief?"

10. The first appellate Court has considered the crucial

document i.e., Ex.A-12 which reveal that 'A' and 'B' schedule

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properties are the ancestral properties, where the name of

Yelamanchi Venkateshwar Rao was shown in the patta column for

the year 1965-66, 1975-76, 1979-80, 1990-91 and only the name of

Subramanyam has been recorded in the pahani for the year, 2001-

2002 and 2002-06 but there are corrections in the pahani for the

year 2001-02 and 2005-06 and that there was no initial or stamp for

carrying corrections and concluded that the plaintiff is entitled for

1/6th share being coparcener as per the amendment of Section 6 of

the Hindu Succession Act and also allowed the suit by setting aside

the judgment and decree O.S.No.49 of 2008 dated 04.11.2009 on

the file of Senior of Civil Judge, Bodhan and directed to prepare

preliminary decree.

11. Being aggrieved by the same, the 6th defendant, who is the

younger sister of the plaintiff has filed Second Appeal raising

following substantial questions of law along with Memorandum of

grounds:-

"a. Whether the findings of the Lower Appellate Court contrary to evidence on record vitiate the Preliminary Decree and Judgment of Lower Appellate Court below?

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b. Whether Ex.A-12 was properly interpreted in the light of Evidence of DW.2?

c.   Whether     the   amended    Sec.6     of     Hindu
     Succession Act can be applicable to the
     Respondent No.1?

d. Whether the Respondent No.1 is entitled any share under the benefit of Sec.29 (A) of Hindu Succession Act?

e. Whether Ex.A12 is properly interpreted by the Lower Appellate Court in relation to Ex.1 and Ex.2, which was filed by the 1st respondent/plaintiff interpreted by the trial Court in respect of partition, was affected prior to 2004?

f. Whether mere recording of the name in the record discloses ancestral property as finding of the Lower Appellate Court? Vitiated the reason of the Appellate Court below.

g. Whether the mere mutation of the name in the revenue records amounts to partition in the absence of the partition deed or any oral partition in respect of suit schedule property under the law?

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h. When and what circumstances and How the amendment to Sec.29 (A) of Andhra Pradesh Amendment to the Hindu Succession Act is applicable as opinioned by the both courts? Vitiated the reasoning of the court below?"

12. It is pertinent to mention that the Second Appeal is filed by

the 6th defendant giving a go-bye to the contents of the written

statement which was signed by her. It is contention of the

appellant/6th defendant that she is the absolute owner of the 'B'

schedule properties under the un-registered gift deed dated

15.08.1991 for which her father was the absolute owner and it was

given to her as 'pasupukumkuma' at the time of her marriage and

that the property is a self acquired property of her father. It is also

the contention of the appellant that lower Court has not considered

the evidence of D.W2 that the 'B' schedule properties was gifted

by the father of the appellant and it amounts to exclusion of factual

aspect and the plaintiff is not entitled for 1/6th share in 'B' schedule

properties.

13. The chief affidavit of D.W1 is nothing but repetition of the

facts of the written statement. The chief affidavit of D.W1

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discloses that 'A' schedule properties were originally purchased by

his father Venkateshwar Rao on 12.09.2002 and after the death of

his father, his name was mutated. Since the marriage of the

plaintiff was performed on 07.05.1980, she was not entitled for a

share in the suit schedule property as per Section 29-A of the

Hindu Succession Act.

14. It is specifically deposed by D.W1/1st defendant that he has

read over the contents of his chief affidavit in his mother tongue

and the said contents were admitted by the other defendants to be

true and correct. It was also his specific admission that after the

death of his father, the properties mentioned in the suit schedule

property were mutated on his name. D.W2 is the mother of the

plaintiff. Her evidence discloses that wet land was given to the last

daughter Padmaja by executing a registered document but no such

document was filed before the Court, to prove that the 6th

defendant/petitioner had acquired right over the property.

15. Further, the evidence of D.Ws.1 to 3 nowhere discloses that

property was given to the 6th defendant by way of registered gift

deed by his father Venkateshwar Rao. It is the specific admission

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of D.W2 that suit schedule property was purchased by her husband

Venkateshwar Rao and after his death, the properties were

transferred in the name of her son. Neither the recitals in the

written statement nor the evidence of defendants discloses that 'B'

schedule properties were transferred by way of gift deed by the

father of the plaintiff to the 6th defendant.

16. In Ponnayal alias Lakshmi versus Karuppannan (dead)

through legal representative Sengoda Gounder And Another1,

their lordships held that the issues in respect of documents neither

pleaded nor in respect of which any issues were framed, held,

cannot be adjudicated. Civil suits are decided based on pleadings

and issues framed and parties to suit cannot be permitted to travel

beyond pleadings.

17. The above said proposition squarely applies to the present

facts and circumstances of the case. There is no pleading before

the Court that the 'B' schedule properties were transferred to the 6th

defendant by way of unregistered gift deed. Moreover, any

unmovable property transferred by way of gift shall be registered.

(2019) 11 SCC 800

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Admittedly, the 6th defendant also signed the written statement and

she is not an illiterate. Further, no such ground has been raised

before the first appellate Court claiming right by virtue of

unregistered gift deed. Therefore, it is not proper for the party to

come up with a new plea by giving a go-bye to the entire

pleadings, issues and findings of the Courts below. The first

appellate Court rightly appreciated the evidence on record while

determining the rights of the parties and further a preliminary

decree has been granted in favour of the plaintiff for 1/6th share of

'A', 'B' and 'C' schedule properties. Therefore, it is not proper to

interfere with the orders passed by the first appellate Court as well

as the trial Court.

18. Second Appeal is of the year, 2015 and it underwent

numerous adjournments and still coming up for admission.

19. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

Courts. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, only then, this Court

can interfere with the orders of the Courts below. On perusal of

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the entire material on record, this Court is of the considered view

that the orders of the Courts below are not perverse and there is no

misreading of evidence, and therefore in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

findings of the Courts below. Therefore, the Second Appeal

deserves to be dismissed.

20. In the result, the Second Appeal is dismissed at the stage of

admission confirming the judgment and decree dated 09.12.2013 in

A.S.No.4 of 2010 on the file of VII Additional District Judge,

Bodhan, Nizamabad. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 17.11.2022 dv