Sirimalla Mohan Rao vs Sirimalla Pushpa
2022 Latest Caselaw 6232 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.659 of 2015

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 18.06.2015 in A.S.No.138 of 2009 on the file of II

Additional District Judge, Warangal, which is arising out of the

judgment and decree dated 27.07.2009 passed in O.S.No.1098 of

2001 on the file of II Additional Senior Civil Judge, Warangal.

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

arrayed before the trial Court. The appellant is the defendant No.1.

3. Initially, the suit is filed by the plaintiffs against the

defendants seeking partition of suit schedule property into four

equal shares and for allotment of one share each to plaintiff Nos.1

and 2. The case of the plaintiffs is that the 1st plaintiff is the wife,

and defendant Nos.1 and 2 are the children of one late S.Krishna

Rao and the 1st plaintiff. The said late S.Krishna Rao was a

business was doing business in textiles, foot wear and liquor who

died on 16.04.1985. At the time of his death, he possessed two

houses bearing Nos.1/332 and 1/333 situated at Krishna Nagar,

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Kazipet and a Shopping Complex bearing No.1/3/110 situated at

main road, Kazipet consisting of 8 mulgies besides 1/3rd undivided

share in house bearing H.No.1-4-95 situated at Vishnupuri,

Kazipet. Further, late Krishna Rao also owned properties jointly

with his brothers namely late Satyanarayana and late Srinivasa

Rao. On 26.04.2001, house bearing H.No.1-4-95 was sold to one

Ravula Venkata Reddy wherein the plaintiffs have also signed the

sale deed along with defendant No.1 and others and the share

allotted to late Krishna Rao was Rs.2,83,000/- which was received

by defendant No.1 on behalf of plaintiffs and others. Late Krishna

Rao died in the year 1985, by that time, defendant No.1 was only

14 years old, therefore, 1st plaintiff managed the properties and got

performed the marriage of defendant No.2 in the year 1998. The

husband of defendant No.2 was the nephew of 1st plaintiff. In the

year 1993, defendant No.1 took over the entire management of the

property and the plaintiff No.1 handed over Rs.70,000/- cash to

defendant No.1 and the said amount was utilized for the marriage

of defendant No.2 which took place in the year, 1998.

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4. It is the further case of the plaintiffs that defendant Nos.3 to

9 are the tenants in the mulgies and defendant No.10 is the tenant

of the portion of house bearing H.No.1-5-5 situated at Krishna

Nagar, Kazipet and they all were paying rents. In the month of

Novenmber, 2000, defendant No.1 married a girl of his choice and

started neglecting the plaintiffs. As defendant No.1 was collecting

all the rents and neglected the plaintiffs, the plaintiff No.1

constrained to issue notice to the 1st defendant demanding him to

pay Rs.4,000/- per month out of the rents for her maintenance.

Further, the 1st defendant got mutated the shopping complex

bearing H.No.1-3-110 on his name in the municipal record by

taking some lady personating as his mother. Later, the defendant

No.1 left the house along with his wife and neglected the plaintiffs,

for which they were constrained to file a suit for partition as Class

1 heirs for the property of late S.Krishna Rao.

5. On the other hand, the 1st defendant filed a detailed written

statement admitting the fact of relationship, the death of his father

and his age as on the date of death of his father. It is further

submitted by the defendants that the 2nd plaintiff is a lunatic and

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not represented by her guardian/next friend and therefore, suit has

to be dismissed. It is the specific contention of defendant No.1 that

late S.Krishna Rao executed a Will Deed in his favour and

therefore, the plaintiffs are not entitled for the properties of late

S.Krishan Rao in view of the testamentary deed and therefore

prayed to dismiss the suit as it is devoid of merits.

6. Basing on the above pleadings, the trial Court has framed the

following issues:-

"1. Whether the plaintiff No.2 is mentally retarded person, if so, whether she ought to have been represented by next friend/guardian?

2. Whether the father of the defendant i.e., husband of plaintiff No.1 died intestate or he has executed a Will Deed dated 04.02.1985?

3. Whether all the property of the plaintiff and defendant Nos.1 and 2 are included in the petition schedule lands?

4. Whether the suit schedule properties are ancestral properties or "joint family property"?

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5. Whether the plaintiffs are entitled for partition of the petition schedule property if so whether they are entitled for 1/4th share each in the petition schedule property?

6. To what relief?"

7. On behalf of plaintiffs, P.Ws.1 and 2 were examined and

Exs.A-1 to A-22 were got marked and on behalf of the defendants

D.Ws.1 to 3 were examined and Exs.B-1 to B-24 were got marked.

8. Admittedly, there is no dispute with regard to relationship

between the parties in this case. The 1st plaintiff is the wife of

late Krishna Rao and the 2nd plaintiff, defendant Nos.1 and 2 are

daughter and sons of late Krishna Rao. The entire dispute in this

case revolves around the properties as to whether late S.Krishna

Rao died intestate leaving behind his legal heirs as the original

sharers of the property or whether he has executed a Will Deed

dated 04.02.1985 in favour of 1st defendant. Further, the dispute is

also relating to collection of rents from the tenants either by the 1st

plaintiff or by the 1st defendant and whether the said amounts

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which have been received either by the 1st plaintiff or by the 1st

defendant are accounted.

9. The trial Court after considering the oral and documentary

evidence on record has passed preliminary decree as under:-

"1. That the suit properties are partitioned by allotting one share to the first plaintiff and noting one share to the 2nd plaintiff out of 4 equal shares of the suit schedule property.

2. That the defendants do pay to the plaintiff a sum of Rs.5,925/- towards cost of the suit"

10. Being aggrieved by the said judgment and decree, the 1st

defendant preferred A.S.No.138 of 2009 on the file of II Additional

District Judge, Warangal. On hearing the appellant, the 1st

appellate Court has framed the following points for consideration:-

"1. Whether additional documents filed during appeal through a petition under Order 41 Rule 27 of C.P.C can be allowed and received in evidence?

2. Whether the judgment and decree passed by the learned II Additional Senior Civil Judge is erroneous in facts, and law and therefore, liable to be set aside?

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3. To what relief?"

11. Considering the rival contentions of the parties and oral and

documentary evidence, the 1st appellate Court dismissed the appeal

with costs confirming the judgment and decree passed by the II

Additional Senior Civil Judge, Warangal in O.S.No.1098 of 2001,

dated 27.07.2009.

12. Being aggrieved by the judgment and decree of the 1st

appellate Court, the 1st defendant preferred the present Second

Appeal raising the following substantial questions of law along

with memorandum of grounds:-

"a) Whether or not the Courts below is justified in allotting equal share to the appellant and the respondents 1 to 3 without taking into account the expenses incurred for performing the marriage of respondents 2 and 3 and the money given to them at the time of their marriage?

b) Whether the Courts below is justified in allotting equal share to the 2nd respondent by not taking into account the expenses incurred for performance of her marriage and also the

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amounts spent for treatment of the 2nd respondent?

c) Whether the Courts below justified in holding that the suit schedule properties are self acquired properties of the father of the appellant in the absence of any evidence on record?

d) Whether or not the findings of the Courts below that the father of the appellant acquired the joint family properties with the income earned by him by carrying on business in the absence of any evidence on record?

e) The judgments and decrees passed by the Courts below are not sustainable in law in the absence of evidence in support of the findings recorded therein?

f) Whether or not the Courts below is correct in allotting equal shares to the appellant and his mother and sisters in a ancestral properties?"

13. Heard the learned counsel for the appellant. Perused the

record.

14. On perusal of the entire record, it is evident that the

substantial questions of law which were mentioned at paragraph 8

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i.e., 'a' to 'f' are not on law but they are relating to the facts which

have been already decided by the Courts below concurrently. The

1st appellate Court can deal with mixed questions of facts and law

but the 2nd appellate Court has to interfere with the judgment and

decree of the Courts below, if there is any substantial question of

law is involved. In the present case, no substantial question of law

is involved.

15. It is the specific plea of the appellants that late Krishna Rao

has executed a Will Deed dated 04.02.1985 in favour of the 1st

defendant/appellant but the appellant has not filed any document

before the Courts below to prove his case. As per Section 101 of

C.P.C, whoever ascertains a particular fact, it is for them to prove

the same. It is the specific contention of the 1st defendant that he

inherited the property of late S.Krishna Rao by way of testamentary

document i.e., Will Deed dated 04.02.1985 and it is for him to

prove the said fact.

16. On the other hand, it is the specific case of the plaintiffs and

defendant Nos.1 and 2 who are interrelated to each other i.e., wife,

daughter and sons of late Krishna Rao and that the properties are

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self acquired properties of late Krishna Rao and he died intestate.

In order to prove the said fact, the plaintiffs have relied on oral and

documentary evidence i.e., Exs.A-1 to A-9 which clearly show that

the said properties are on the name of late S.Krishna Rao.

Therefore, both the Courts have rightly decreed the suit in favour

of the plaintiffs by giving 1/4th share to each of them.

33. 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 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.

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

admission confirming the judgment and decree 18.06.2015 in

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A.S.No.138 of 2009 on the file of II Additional District Judge,

Warangal. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date:29.11.2022 dv