Telangana High Court

Krishna Hyderabad And 4 Others vs T Dhanraj Hyderabad And 4 Others on 24 November, 2022

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                  C.C.C.A.No.29 of 2022

JUDGMENT:

C.C.C.A.No.29 of 2022 is filed against the Judgment of

the trial Court in O.S.No.2171 of 2022 dated 17.12.2013.

2. Plaintiffs filed suit against the defendants for partition

and separate possession of 5/8th share in the suit schedule

property. Plaintiff No.3 was examined as P.W.1, plaintiff No.4 as

P.W.2 and defendant No.3 as P.W.3 and marked Ex.A1 to A12.

Defendant No.2 examined as D.W.1 and marked Ex.B1 to B11.

The trial Court considering the evidence on record and

arguments of both sides observed that Ex.B1 to B3 discloses

that the suit schedule property is a self acquired property of Sai

Bai and as per Section 14 of Hindu Succession Act, it is her

absolute property and she conveyed the same as gift to the

defendant No.2 and defendant No.1 has no right to execute

Ex.A2. It was also held that as defendant No.1 died, the suit

claim in respect of recovery of service benefits become

infructuous and plaintiffs are not entitled for partition of the

suit schedule property and service benefits of their mother and

accordingly dismissed the suit. Aggrieved by the said Judgment they preferred an appeal and mainly contended that suit

schedule property was ancestral property of the appellants and

they constructed house with the joint family funds, as such it is

liable for partition. Even in the registered gift deed Ex.B3 dated

03.06.2002, it was clearly mentioned that the schedule house

property is the ancestral property, as such mother of the

appellants has no right to execute the Ex.B3 in favour of

defendant No.2 by excluding other legal heirs. They further

stated that even it is assumed that the site on which the house

was constructed was given by the Government to the mother of

the appellants and the second defendant, the patta was marked

as Ex.B9 in which it was specifically mentioned that it shall not

alienated. As such the execution of the gift deed executed by

their mother in favour of the defendant No.2 is not valid. The

trial Court failed to consider the admissions made by the

defendant No.2 during cross-examination and erred in holding

that suit schedule property is not liable for partition. The

evidence of P.Ws. 1 to 3 discloses right over the suit schedule

property, but the trial Court without considering the same

dismissed the suit illegally. They further stated that it is well

settled under Hindu Law that the presumption is that

immovable properties are joint family properties having

ancestral nature unless it is proved. The trial Court instead of

observing the fact that defendant No.2 failed to prove the

exclusive right of their mother dismissed the suit. The trial

Court has not considered the Ex.A2, Memorandum of

Understanding executed by the first defendant in favour of the

third defendant. The burden of proving the suit for partition is

on both parties i.e, on plaintiffs and defendants. But the trial

Court held that appellants failed to prove the contention raised

by them. Therefore, requested the Court to set aside the

Judgment of the trial Court in O.S.No.2171 of 2005.

3. Plaintiffs stated that defendant No.1 is their father,

defendant Nos.2 and 3 are brothers, one Sai Bai wife of

defendant No.1 is their mother and also the mother of defendant

Nos.2 and 3. The defendant Nos. 4 and 5 are the tenants of the

suit schedule property bearing premises No.7-1-632/17,

Bapunanagar, S.R.Nagar, Hyderabad. The first defendant

during his life time worked in Allwyn company and took

voluntary retirement in the year 1990, from then onwards he

was leading a retired life and their mother Sai Bai worked in a

Government Maternity Hospital, Nayapul, Hyderabad till her

death and she died intestate leaving behind plaintiffs, sisters,

father and brothers as legal heirs and successors. The

defendant No.1 is a habitual drunkard and used to extract

money from their mother and also from them. The property

bearing No.7-1-632/17 admeasuring an extent of 101.67

Sq.yrds situated at Bapunagar, S.R. Nagar, Hyderabad is an

ancestral house property with asbestos sheets roof and the

same was demolished and with the joint efforts and funds of

their mother and all the sisters constructed new R.C.C building

consisting of three non-residential shops and residential

portion. Their father and brothers have not contributed

anything in the construction of the property. Although, the

defendant No.2 got job in New India Assurance Company as

Attender in the year 1990 itself, he did not contribute anything

for the construction of the suit schedule property. He also

became habitual drunkard and used to spend his salary for

drinks without caring for the needs of the family members.

Their mother separated the second defendant and he started

residing separately along with his wife and children at premises

No. 7-1-632/163/A at Bapunagar, S.R.Nagar, Hyderabad. After

completion of the construction work, two shops let out to the

defendant No.4 who is running a kirana general store and

another shop to defendant No.5 who is running an authomobile

parts shop. The defendant No.1 was allowed to collect rents and

manage the affairs of the family. The first defendant entered into

agreement with the advertising company for display of

hoardings over the top of the suit schedule property in

consideration of the receipt of hire charges and thus deriving

income on behalf of the plaintiffs and defendant Nos. 2 and 3.

He also received entire service benefits of her mother on behalf

of them and admitted the same by executing the memorandum

of understanding dated 07.09.2002 and assured to pay their

respective shares.

4. The plaintiffs and defendant Nos. 1 to 3 are entitled to

share equally all the service benefits of late Sai Bai as legal heirs

and successors and also hired charges/rental income as joint

and co-owners. They got issued legal notice on 22.08.2005 to

the first defendant as he is avoiding to pay their shares by

giving lame excuses and also requested him to render the

accounts. They further requested him for 5/8th share. The

copies of the said legal notices have also sent to the defendant

Nos. 4 and 5. But, none of them came forward or replied to the

said notices, as such they filed suit for partition and separate

possession of 5/8th share.

5. On service of summons, the suit against defendant No.1

was dismissed as abated, defendant Nos.3, 4 & 5 remained

exparte and defendant No.2 filed written statement admitting

the relationship with the plaintiffs, defendants 1 and 3 also

admitted that Sai Bai was wife of defendant No.1 and

defendants 4 and 5 are the tenants of the suit schedule

property. The defendant No.2 stated that defendant No.1 worked

in Allwyn company and took voluntary retirement during the

year 1990, from then onwards he is living a retired life and his

wife Sai Bai worked in Government Maternity Hospital, Nayapul,

Hyderabad and died intestate on 25.06.2002 leaving behind the

plaintiffs, defendant Nos.1 to 3 as her legal heirs and

successors. It was also represented that Sai Bai was Pattadar in

respect of the land bearing H.No.7-1-632/17 admeasuring

101.67 Sq.yards vide Patta certificate bearing No.D/1234/90,

also he denied the fact that house was constructed with the

joint funds of the plaintiffs. He further stated that he was not

addicted to liquor and stated that two shops were let out to the

defendant Nos. 4 and 5 and the rents were collected by

defendant No.1 as he is the senior member of the family. He

also stated that plaintiffs and defendants are not entitled for

any share of service benefits of their mother.

6. The trial Court in issue No.1 observed that P.W.1 stated

that she has not filed any document to show that the plaint

schedule property is ancestral property and she is not aware

whether the plaint schedule property was originally belonged to

Government and that Government issued Pattas to the persons

who are in occupation. P.W.2 stated that the old house was in

existence upto 1993 and house number was given by the MCH

authorities in the name of their father. D.W.1 stated that his

mother executed gift deed in his favour on 03.06.2002, his

father acted as a witness to it, from then onwards he is in

possession of the same. He filed the registered gift settlement

deed under Ex.B3, property tax receipt under Ex.B4 and B5,

Ex.B1 is the copy of the representation given to the R.D.O,

Ex.B2 is the letter addressed to the R.D.O, Ex.B6 is the

electricity bill, Ex.B7 is the mediclaim certificate issued by the

New India Assurance Company, Ex.P.8 is the sanctioned plan of

the premises, Ex.B9 is the form -D Patta certificate, Ex.B10 and

B11 are the tax receipts. He further stated that he invested

Rs.3,60,000/- for construction of the suit schedule property, at

that time he was getting salary of Rs.4,000/- per month. He has

not filed any document to show that he obtained loan for

reconstruction of the house. He further denied the fact that he

was sent out of house by his parents about 15 years back. The

complaint was given by the plaintiffs in S.R. Nagar Police

Station and during the life time of his father he let out some

portion to the tenants and getting rent of Rs.16,000/- per

month from 3 mulgies. Ex.A1 is the death certificate of Sai Bai

dated 02.08.2002. Ex.A2 is the memorandum of understanding

executed by defendant No.1 in favour of plaintiff No.3. Ex.A3 is

the legal notice. The trial Court considering the evidence on

record held that it is not ancestral property and dismissed the

suit. Aggrieved by the said order appeal is filed and they also

filed the copy of the gift settlement deed dated 03.06.2002.

7. Plaintiffs mainly contended that gift deed was executed by

their mother on 03.06.2002 and she died due to ill health on

25.06.2002, as such they alleged that defendant No.2 obtained

her signatures and fabricated the gift settlement deed in his

favour. Even in the gift deed it was specifically mentioned that it

is ancestral property as contended by the plaintiffs. As such

they contended that she has no right to execute gift deed in

favour of defendant No.2 excluding other legal heirs and it is not

valid. They also filed undertaking dated 15.11.1999 in which it

was mentioned that house bearing No.7-1-632/17 measuring

an extent of 101.67 Sq. yards is an ancestral property of

T.Dhanraj. They also filed memorandum of understanding dated

07.09.2002 executed by T.Dhanraj in favour of P.W.3, even in

the said understanding it was mentioned that the marriage of

the second party was performed with one Ramulu in the year

1990. Subsequently, in pursuance of O.P.No.142 of 1991 their

marriage was dissolved by a decree of divorce dated 04.10.1991.

From then onwards, first party was residing with the second

party in house bearing No.7-1-632/17 which is ancestral

property of the first party. First party is having 5 daughters and

2 sons. Even in the said memorandum of understanding, it was

specifically mentioned that the house is ancestral property and

the said documents are also filed before the trial Court. But the

trial Court failed to appreciate the facts properly and held that

plaintiffs did not file any document to prove that the property is

an ancestral property and held that it is self-acquired property

of Sai Bai as per Ex.B1 to B3, and it is her absolute property

under Section 14 of the Hindu Succession Act, as such gift deed

executed by her in favour of defendant No.2 is valid. When it

was specifically mentioned in the gift deed and also in the

memorandum of agreement that the property is an ancestral

property, the mother of the plaintiffs has no right to execute gift

settlement deed in favour of defendant No.2 ignoring other legal

heirs. Moreover, the first defendant executed memorandum of

understanding subsequent to the gift deed in which he

mentioned the date of death of his wife and also the fact that

how many children he is having and he further stated that he

was staying along with plaintiff no.3 in the said house and it is

ancestral property. D.W.1 stated that his mother executed the

gift deed in his favour and his father acted as witness for it. The

defendant No.3/ surender had also given complaint against his

brother D.W.1 on 22.08.2011 to the President and Panchayat

Committee Chairman of Bapunagar Banjara Welfare Association

in which he stated that their elder brother harassed and

tortured them and not allowed him to stay in the house after the

death of his father on 01.08.2010 and requested the committee

members to resolve the problem at an early time. They also filed

legal heir certificate issued by the M.R.O, Kahairthabad Mandal,

Hyderabad District on 11.09.2002.

8. Plaintiffs relied upon the Judgment of the Hon'ble

Supreme Court in the case of K.C. Laxmana Vs. K.C.

Chandrappa Gowda and another in which it was held as follows:

"14. It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P.1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See : Thimmaiah Vs. Ningamma). Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation."

9. Perusal of the document shows that father and brother

Surender attested the gift deed. When the mother of the D.W.1

has no right over the property, she cannot pass better title to

D.W.1 by way of executing gift deed, as such the gift deed

executed by Sai Bai in favour of his son D.W.1 is not valid. She

has no right to execute gift deed when the property is an

ancestral property, as such the gift deed is declared as null and

void and the suit against defendant No.1 was dismissed as

abated. The plaintiffs are daughters and defendants are sons of

the deceased Sai Bai, they are entitled for 5/7th share in the suit

schedule property and also in the service benefits of their

mother.