Telangana High Court
N.Ramesh vs N.Kanthamma on 3 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
SECOND APPEAL No.636 of 2010
JUDGMENT:
This Second Appeal is filed by the appellant - defendant aggrieved by
the judgment and decree dated 19.04.2010 in A.S.No.137 of 2007 passed by
the I Additional Chief Judge, City Civil Court, Secunderabad, confirming
the judgment and decree dated 02.06.2007 in O.S.No.486 of 2002passed by
the III Senior Civil Judge, City Civil Court, Hyderabad.
2. The respondent is the plaintiff.
3. The parties are hereinafter referred as arrayed before the trial court as
plaintiff and defendant.
4. The plaintiff filed the suit for delivery of possession by evicting the
defendant from the suit schedule property and claiming future damages at
the rate of Rs.5,000/- per month from the date of suit till delivery of
possession. The contention of the plaintiff was that she was the step mother
of the defendant. She was married to one Sri N. Yadagiri. She was the
second wife to Sri N. Yadagiri. The first wife of her husband by name,
Smt. Sakku Bai died after begetting three children, P. Rajamani, Sujatha and
the defendant N. Ramesh. The mother of the defendant died in the year
1957. She was also blessed with three children Smt. Padma, N.
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Chandrasekhar and N. Rajeshwar. The plaintiff submitted that she
purchased a residential plot admeasuring 277 Sq.yards vide registered
document No.1090 of 1964 dated 28.06.1964 with her streedhana and
constructed a house. Thereafter, she raised first and second floors over the
house bearing Municipal No.12-10-590/108 situated at Warasiguda,
Secunderabad. The defendant was one year old by the date of death of his
mother and he was two years old by the date of her marriage with Sri N.
Yadagiri. She brought up the defendant and looked after his welfare and
well-being. The defendant did not fare well in studies. He was put up in the
family business of her husband. Upon the death of her husband, the plaintiff
allowed the defendant to take care of the business. She performed the
marriage of the defendant and put the defendant in permissive possession of
the 2nd floor consisting of four rooms, one hall, kitchen and W.C. in the
house bearing No.12-10-590/108, which was the suit schedule property. The
plaintiff permitted the defendant to act on her behalf as her attorney and
authorized him for collecting the rents from the sitting tenants of the
property. The defendant had not accounted receipt of rents and also the
receipts from the business and had clandestinely used them for his personal
gain and purchased properties in his name from the funds secreted away by
him from the business. The husband of the plaintiff discharged his part of
obligation by taking care of each and everyone. The properties purchased by
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him in his name were gifted to all the three sons. The defendant taking
undue advantage of the confidence reposed on him, had siphoned away the
monies and purchased three properties in his name, two properties at
Mallapur and one at Nagole. There was no independent source of income to
the defendant to purchase the same. The defendant fabricated a Will
purported to have been executed by her husband alleging that he was
bequeathed half share in the properties and filed the said document in
O.S.No.35 of 1999, which was instituted by her sons against the defendant
herein for partition and separate possession of the properties on the file of
the II Additional District Judge, Ranga Reddy District, which were in their
joint names. The property situated at Warasiguda was not the subject matter
in that suit. However, the defendant filed a settlement deed, an unregistered
and unstamped document. Sensing that his misdeeds would likely to be
exposed and having found that the court insisted him to get the settlement
deed validated and directed him to pay the penalty, the defendant filed a
memo for return of the documents including the fabricated Will. When the
said memo was opposed by her sons in that suit, the defendant took back the
Will and settlement deed giving an undertaking to produce the Will on the
directions of the court. The same would clearly establish his conduct in
somehow or other depriving the plaintiff and her sons from the legitimate
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right in enjoying the property. The defendant was hell bent upon holding to
the property unauthorizedly and illegally without any manner of right.
4.1. She further submitted that the defendant provoked the plaintiff's
daughter and got instituted a suit for partition vide O.S.No.386 of 1998 on
the file of the III Senior Civil Judge, City Civil Court, Secunderabad. The
plaintiff filed a written statement claiming exclusive rights over the house
property bearing No.12-10-590/108, Warasiguda, Secunderabad. The said
suit was dismissed on 29.07.2002. The defendant without the knowledge of
the plaintiff got mutated his name for the suit schedule property. On
12.03.2002, the plaintiff filed her objections before the Deputy
Commissioner, Municipal Corporation of Hyderabad to cancel the mutation
effected in the name of the defendant. The same was pending consideration.
As the acts of the defendant went beyond tolerance, the plaintiff caused a
legal notice dated 13.07.1999 to be issued to the defendant to handover the
vacant possession of the suit schedule property under his occupation by
31.08.1999 and also to pay damages for his unauthorized occupation. The
defendant gave a reply denying the right of the plaintiff claiming that he got
a share in the property.
4.2. The plaintiff further submitted that a consensus was arrived under the
stewardship of the elders of the community and as the defendant failed to
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report compliance of the consensus, the plaintiff was forced to take recourse
to law by instituting the present suit and submitted that the defendant was in
permissive possession and the same was determined after issuing legal
notice to him and he should be treated as a trespasser.
5. The defendant filed written statement admitting the relationship with
the plaintiff. He admitted that the plaintiff was the second wife of his father.
After the death of his mother, Smt. Sakku Bai, his father married the
plaintiff. He stated that his mother Sakku Bai died on 31.05.1958 and his
father married the plaintiff on 27.05.1959. He submitted that late Sakku
Bai's mother and the plaintiff's mother were real sisters. To have cordial
relation in the family, his father married the plaintiff. The plaintiff came
from a small village known as Kondur, which would come under Chotuppal
Mandal, Nalgonda District. The father of the defendant died on 21.09.1980.
The defendant was 24 years of age, at that time. He also admitted that the
plaintiff was the mother of three children i.e., two sons and one daughter.
He denied that the plaintiff purchased the residential plot through a
registered sale deed dated 28.06.1964 with her Sthreedhana and constructed
the house. He further contended that if the original sale deed was perused, it
would be crystal clear that the consideration amount of Rs.1,400/- was paid
by his father before the Sub-Registrar to the original owner of the property
and Rs.600/- was paid by him prior to registration of the document. Thus, a
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total amount of Rs.2,000/- was paid by his father. He also contended that his
father constructed the ground floor and after the death of his father, he
constructed the first and second floors. He contended that the plaintiff had
no source of income. He denied that he was not doing well in his studies
and stated that after completion of 10th class, he left the studies and joined
his father in the family business. The entire burden of the family and family
business fell on him. After the death of his father, he being the eldest son of
the house became the Karta of the family. He denied that the plaintiff
performed his marriage and contended that his father performed his marriage
in the year 1975 and his father also performed the marriages of his sisters,
who were born through his first wife. He further contended that he
performed the marriages of his step-sister and step brothers, as a Manager of
the family. He stated that the money lending business of his father was
closed after his death and he got his own independent business with his own
income and was maintaining the family. He stated that the construction of
the first and second floors was completed with his own funds. He denied
that he used any family amount for his own benefit and stated that he
sacrificed his entire life in the service of his family. He denied that with the
family funds, he purchased the properties at Mallapur and Nagole. He
contended that his father executed a Will Deed and the same was filed in
O.S.No.35 of 1999 on the file of the II Additional District Judge, Ranga
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Reddy District. On technical grounds, the Will Deed and some other
documents were returned back to him. The settlement deed dated
26.07.1998 was returned back by the II Additional District Judge, Ranga
Reddy District on the ground that, it was not sufficiently stamped. He was
directed to impound the same. The said document was impounded and the
same was filed by him in the present suit. The said document was signed by
all the parties. He denied that he instigated his sister to file a suit for
partition vide O.S.No.386 of 1998 and contended that the said suit was
dismissed as withdrawn. He contended that he was paying municipal taxes
to the suit schedule property.
5.1. He further submitted that all the family members with mutual
discussion before the elders of locality arrived at settlement and the
settlement deed was prepared and reduced into writing on 26.07.1998 on a
stamp paper of Rs.80/- i.e., 4 stamp papers of Rs.20/- each. He denied that
he did not comply with the settlement deed and contended that it was for the
plaintiff and her sons to comply. He contended that he was collecting the
rental receipts as a landlord from the tenants. He was not a trespasser and
the plaintiff was not entitled to claim damages. He stated that as per the
terms of the settlement deed, he offered Rs.1,00,000/- to the plaintiff, but the
plaintiff refused to take it. He also requested the plaintiff to disclose the
name of any nationalized bank in which she was having account so that the
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amount would be deposited, but the plaintiff refused to reveal. Within one
month after settlement deed was reduced into writing, the daughter of the
plaintiff filed O.S.No.386 of 1998 for partition. The said suit was filed at
the instigation of the plaintiff and her sons. Within six months, the step
brothers of the defendant also filed O.S.No.35 of 1999 for partition against
him as sole-defendant. In the evidence in that case, PW.1 Chandrasekhar
admitted the settlement deed. In the notice given by the plaintiff, there was
no whisper regarding the settlement deed, which would prove the malafide
intention of the plaintiff. Even by the date of filing the written statement,
the defendant was ready to comply with the terms of settlement deed. As
per the directions of the court, he was ready to deposit the amount of
Rs.2,00,000/-. As per the deed of settlement, no share was given to the
plaintiff in the property bearing No.12-10-590/108, Warasiguda,
Secunderabad. As such, the suit filed by the plaintiff was not maintainable.
The plaintiff was estoppped from denying the settlement dated 26.07.1998
as the deed of settlement crystalizes the rights of the parties and prayed to
dismiss the suit.
6. Basing on the said pleadings, the trial court framed the issues as
follows:
1. Whether the plaintiff is entitled for possession of the schedule
property by ejecting the defendant?
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2. Whether the plaintiff is entitled for mesne profits @ Rs.5,000/-
per month?
3. To what relief?
7. The plaintiff examined herself as PW.1 and got marked Exs.A1 to A10.
The defendant examined himself as DW.1 and got examined one of the caste
elders as DW.2. Exs.B1 to B33 were marked on behalf of the defendant.
8. On considering the oral and documentary evidence on record, the trial
court observed that the sale deed (Ex.A6) stood in the name of the plaintiff.
The contention of the defendant that the sale consideration was paid by his
father, could not be believed. The only contention raised by the defendant
was that the signature of his father was found under an endorsement recording
payment of balance sale consideration before Sub-Registrar on the back side
of the first page of Ex.A6, wherein a stamp was affixed with blanks and the
blanks were filled up stating that Rs.1,400/- was paid by the purchaser to the
executant, but under the word payee instead of plaintiff, her husband signed.
The trial court observed that basing on the said signature alone, it could not be
believed that it was the father of the defendant, who paid the sale
consideration. The recitals in page No.2 of Ex.A6, would make it clear that
the balance consideration of Rs.1,400/- was paid by the plaintiff to her vendee
and being the husband of the plaintiff, he might have signed under the heading
payer, but it does not mean that amount was paid from his personal account or
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from family account. The trial court also held that the document was of 1964
i.e., more than 30 years old and it would carry a presumption about its
genuiness of execution. Basing on the recitals, it would clinchingly establish
that the plaintiff was the absolute owner of the house, in which the suit
schedule property was a part.
8.1. With regard to the settlement deed marked as Ex.B5, the trial court
observed that as seen from the terms of the said document, the defendant had
to construct some portions of the house and he was given four portions of the
house and the defendant had to pay Rs.1,00,000/- to the plaintiff within 30
days. But admittedly, the said amount was not paid. The evidence of DW.2
also would prove that the plaintiff did not accept the amount offered by the
defendant though she signed on Ex.B5. The trial court also observed that
though the sale deed stood in the name of the plaintiff, Ex.B5 would read as if
the property was divided among the defendant and the sons of the plaintiff and
no share was given to the plaintiff. The trial court further observed that Ex.B5
was an unregistered document and it could not be acted upon though it was
impounded and the terms of the said document were also not fulfilled by the
defendant.
8.2. The trial court also observed that Ex.B1 Will deed alleged to be executed
by the father of the defendant was also not proved by examining any attestors
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of the said Will, and further observed that when the sale deed stood in the
name of the plaintiff, her husband could not execute a Will bequeathing the
said property covered by the sale deed and it would not create any right in
favour of the defendant. The trial court also observed that the name of the
defendant being mutated in the municipal records would not have any bearing
on the legal rights relating to the property. When Ex.B5 was held to be an
invalid document, the mutation based on the said document and other
documents could not be the basis to hold that the defendant was given the suit
schedule property towards his share as per the settlement. The trial court also
observed that if the property was treated as a joint family property and
partitioned, the sisters and step-sister of the defendant also should be made as
parties to the said document. Though the defendant was residing in the said
property, it would not give him any right over the said property as he was only
permitted to occupy the same by the plaintiff.
8.3. The trial court also observed that the evidence of DW.2 would not
prove the settlement as his evidence would disclose that two meetings were
held, one in 2002 and the other in November, 2005 between the elders, but the
document under Ex.B5 settlement deed was executed in 1998 and decreed the
suit directing the defendant to vacate the property within two months from the
date of decree.
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9. Aggrieved by the decretal of the suit, the defendant preferred an appeal.
The appeal was heard by the I Additional Chief Judge, City Civil Court,
Secunderabad. Vide judgment and decree in A.S.No.137 of 2007 dated
19.04.2010, the first appellate court dismissed the appeal confirming the
judgment and decreedated 02.06.2007 passed by the learned III Senior Civil
Judge, City Civil Court, Secunderabad in O.S.No.486 of 2002.
10. Aggrieved further, the defendant preferred this Second Appeal raising
the following substantial questions of law:
1. Whether the lower appellate court was justified in not
considering Ex.B5 having concluded that the said settlement
deed was signed by the respondent herein and was later
impounded.
2. Whether the lower appellate court was justified in coming to a
conclusion that the suit schedule property was purchased by the
respondent herein from the money received as 'Sthri Dhana',
inspite of the fact that signature of the appellant's father was
found on the back side of the suit schedule property.
11. This Court on 09.07.2010 admitted the Second Appeal on the
substantial questions of law raised in the grounds of appeal. An interim
order was also passed on the same date, suspending the judgment of the first
appellate court subject to the condition of the petitioner depositing monthly
rents to the credit of the suit on or before 10th of every succeeding month.
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Though a petition was filed to vacate the interim order, the same was
dismissed by this Court on 04.04.2022.
12. Learned counsel for the respondent reported that the appellant was not
complying with the interim orders of this Court and was not depositing the
rents to the credit of the suit, as directed by this Court.
13. Heard Sri A. Narsimha Rao, learned Senior Counsel representing Sri A.
Kranthi Kumar Reddy, the counsel for the appellant on record and Sri V.
Hari Haran, learned Senior Counsel representing Sri Srikanth Hari Haran,
the counsel for the respondent on record.
14. Learned Senior Counsel for the appellantcontended that though the
defendant filed written statement stating about the settlement deed executed
on 26.07.1998 and that all the parties signed on it and took a contention that
the suit was not maintainable and that the plaintiff was estopped from
denying the settlement, no issue was framed by the trial court with regard to
the maintainability of the suit or on the validity and enforceability of the
settlement deed, no rejoinder was filed by the plaintiff. There was no
question of permissive possession, when there was a settlement deed. The
plaintiff examined as PW.1, in her cross-examination stated that her
signature on settlement deed was obtained under duress but any amount of
evidence without pleading could not be looked into. The persons who were
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parties and signatories to the settlement deed could not question the said
document. The said settlement deed was also marked as Ex.B5 in
O.S.No.35 of 1999 filed by the sons of the plaintiff against the defendant for
partition and the son of the plaintiff examined as PW.1 admitted the said
document. He contended that Ex.B5 was impounded, as such, it could be
looked for collateral purpose to show how the defendant could maintain his
possession and relied upon the judgments of the Hon'ble Apex Court in
Kale and Ors. Vs. Deputy Director of Consolidation and Ors.1, Yellapu
Uma Maheswari and Another Vs. Buddha Jagadheeswara Rao and
Ors.2, Hira Lal and Anr. Vs. Gajja and Ors.3 and Sita Ram Bhama Vs.
Ramvatar Bhama 4 and also upon the judgment of the High Court of
Andhra Pradesh in Aziz Ahmed Khan Vs. I.A. Patel5.
14.1. He further contended that when no issue was framed with regard to the
settlement deed, both the courts stating that the settlement deed was not acted
upon was not correct. The defendant No.1 stated before the court that he
wanted to deposit the amount in the account of the plaintiff, but the plaintiff had
not furnished the details of her account. As such, the defendant had deposited
the said amount of Rs.1,00,000/- before the elders. The plaintiff suppressed the
(1976) 3 SCC 119
(2015) 6 SCC 787
(1990) 3 SCC 285
(2018) 15 SCC 130
AIR 1974 AP 1
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fact of settlement deed in her plaint. She admitted her signature on the
settlement deed but only stated that the same was obtained under duress. As
such, she ought to have filed a suit either for declaration of title, recovery of
amount or cancellation of settlement deed. But no further notice was given by
her even after the reply notice given by the defendant stating about the
settlement deed. The stand taken by the plaintiff that she signed on the
settlement deed under duress and the settlement deednot acted upon were
contradictory pleas. The plaintiff could not take inconsistent pleas. He further
contended that though the settlement deed was unregistered but the said
document was impounded. The defendant was continuing in possession only
basing upon the settlement deed. As such, it could be looked into for collateral
purpose.
15. The learned senior counsel for the respondent on the other hand
contended that there were no substantial questions of law arising in this second
appeal. Both the questions raised in the grounds of appeal were questions on
fact which did not need any interference by this Court and relied upon the
judgment of the Hon'ble Apex Court in Santosh Hazari Vs. Purushottam
Tiwari (deceased) by LRs. 6. He contended that no counter claim was raised by
the defendant to file a rejoinder, as such, the argument on not filing the
rejoinder would stand to no reason. He further contended that the appellant
(2001) 3 SCC 179
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failed to honour the interim orders of this Court. The party who defaulted and
failed to honour the order of this Court would need no indulgence from this
Court.
16. Learned Senior Counsel for the appellant in reply admitted default in
complying the orders of the Court but contended that the same would not come
in the way in deciding the Second Appeal on questions of law. He further
submitted that he was not insisting for the second question raised in the grounds
of appeal as it was pertaining to the question of fact and only insisted to answer
on the first question pertaining to the validity of the settlement deed.
17. As such, the only question left before this court to answer in this second
appeal is that whether the lower appellate court was justified in not considering
Ex.B5 having concluded that the said settlement deed was signed by the
respondent herein and was later impounded.
18. This Second Appeal is filed against the concurrent judgments of the
courts below in decreeing the suit filed by the plaintiff for evicting the
defendant from the suit schedule property and awarding damages. Section 100
of the Code of Civil Procedure, 1908 as substituted by the Code of Civil
Procedure Amendment Act, 1976 (104 of 1976) w.e.f. 01.02.1977 reads as
under:-
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"100. Second Appeal.
(1) Save as otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an
appeal shall lie to the High Court from every decree passed
in appeal by any Court subordinate to the High Court, if the
High Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an appellate
decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of law
involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the question so formulated
and the respondent shall, at the hearing of the appeal, be
allowed to argue that the case does not involve such
question:
Provided that nothing in this sub-section shall be deemed to
take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that
the case involves such question."
19. The Hon'ble Apex Court in Santosh Hazari Vs. Purushottam Tiwari
(deceased) by LRs.(6 supra)held that the existence of substantial question of
law is sine qua non for the exercise of jurisdiction under the
amended Section 100 of the Code and that:
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"12. The phrase substantial question of law, as occurring in
the amended Section 100 is not defined in the Code. The
word substantial, as qualifying question of law, means - of
having substance, essential, real, of sound worth, important
or considerable. It is to be understood as something in
contradistinction with - technical, of no substance or
consequence, or academic merely. ...In Sir Chunilal V.
Mehta & Sons Ltd. Vs. The Century Spinning and
Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the
Constitution Bench expressed agreement with the following
view taken by a Full Bench of Madras High Court
in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952
Madras 264:-
"..when a question of law is fairly arguable, where
there is room for difference of opinion on it or
where the Court thought it necessary to deal with
that question at some length and discuss alternative
view, then the question would be a substantial
question of law. On the other hand if the question
was practically covered by the decision of the
highest Court or if the general principles to be
applied in determining the question are well settled
and the only question was of applying those
principles to the particular fact of the case it would
not be a substantial question of law."
and laid down the following test as proper test, for
determining whether a question of law raised in the case is
substantial:-
"The proper test for determining whether a question
of law raised in the case is substantial would, in our
opinion, be whether it is of general public
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importance or whether it directly and substantially
affects the rights of the parties and if so whether it
is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council
or by the Federal Court or is not free from difficulty
or calls for discussion of alternative views. If the
question is settled by the highest Court or the
general principles to be applied in determining the
question are well settled and there is a mere
question of applying those principles or that the plea
raised is palpably absurd the question would not be
a substantial question of law."
14. A point of law which admits of no two opinions may
be a proposition of law but cannot be a substantial question
of law. To be substantial, a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on the
decision of the case, if answered either way, in so far as the
rights of the parties before it are concerned. To be a
question of law involving in the case there must be first a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it
goes to the root of the matter. It will, therefore, depend on
the facts and circumstance of each case whether a question
of law is a substantial one and involved in the case, or not;
the paramount overall consideration being the need for
striking a judicious balance between the indispensable
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obligation to do justice at all stages and impelling necessity
of avoiding prolongation in the life of any lis."
20. It was also held therein that the first appellate Court would continue, as
before, to be a final Court of facts; pure findings of fact remain immune
from challenge before the High Court in second appeal. Now the first
appellate Court is also a final Court of law in the sense that its decision on a
question of law even if erroneous may not be vulnerable before the High
Court in second appeal because the jurisdiction of the High Court has now
ceased to be available to correct the errors of law or the erroneous findings
of the first appellate Court even on questions of law unless such question of
law be a substantial one.
21. Learned counsel for the appellant on the other hand relied upon the
judgment of the Hon'ble Apex Court in Hira Lal and Anr. Vs. Gajja and
Ors.(3 supra)wherein it was held that:
"The main contention advanced on behalf of the appellants
before us is that the decision having been rendered by the
trial court and the first appellate court on the basis of the
finding of fact regarding the right claimed and the
possession alleged, in the absence of any substantial
question of law, there was no jurisdiction of the High Court
under section 100 C.P.C. to disturb the finding of a
concurrent nature and upset the decision. The High Court,
while exercising its power under section 100 C.P.C., has no
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jurisdiction to interfere with the finding of fact recorded by
the first appellate court. Reliance was placed on V. Rarna-
chandra Ayyar &Anr. v. Ramalingam Chettiar &Anr., AIR
1963 SC-302. Section 100(1)(c) refers to a substantial error
or defect in the procedure. The error or defect in the
procedure to which the clause refers is not an error or
defect in the appreciation of evidence adduced by the
parties on the merits. Even if the appreciation of evidence
made is patently erroneous and the finding of fact recorded
in consequence is grossly erroneous, that cannot be said to
introduce a substantial error or defect in the procedure. If in
dealing with a question of fact the lower appellate court has
placed the onus on wrong party and its finding of fact is the
result substantially of this wrong approach that may be
regarded as a defect in procedure. When the first appellate
court discarded the evidence as inadmissible and the High
Court is satisfied that the evidence was admissible that may
introduce an error or defect in procedure. So also in a case
where the court below ignored the weight of evidence and
allowed the judgment to be influenced by inconsequential
matters, the High Court would be justified in re-
appreciating the evidence and coming to its own
independent decision as held in Madan Lal v. Gopi, AIR
1980 SC 1754.
22. The general rule is that the High Court will not interfere with findings
of facts arrived at by the courts below. But it is not an absolute rule. Some of
the well-recognised exceptions are where (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law erroneously; or (iii) the
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courts have wrongly cast the burden of proof. When the Court refers to
"decision based on no evidence", it not only refers to cases where there is a
total dearth of evidence, but also refers to any case, where the evidence,
taken as a whole, is not reasonably capable of supporting the finding.
Whether or not the question raised is the substantial question of law depends
on facts and circumstances of each case.
23. As seen from the facts of the case, no issue was framed with regard to
the maintainability of the suit or validity of the family settlement deed either
by the trial court or by the first appellate court. The trial court framed the
issue as to whether the plaintiff was entitled for possession of the schedule
property by ejecting the defendant and the first appellate court framed the
point for consideration as to whether the appellant-defendant was entitled for
setting aside the judgment and decree dated 02.06.2007 passed in
O.S.No.486 of 2022 on the file of the III Senior civil Judge, City Civil
Court, Secunderabad, as prayed for.
24. Learned counsel for the appellant relied upon the judgment of the High
Court of Andhra Pradesh in Aziz Ahmed Khan Vs. I.A. Patel(5 supra)on
the aspect that if a question is raised that the suit is not maintainable under
certain provisions of law, the court cannot afford to lose sight of this
material proposition which goes to the root of the matter and it has to
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necessarily frame an issue in that behalf. Framing of an issue and decision
on the same was obligatory on the part of the Court.
25. He also relied upon the judgment of the Hon'ble Apex Court in Sri
Gangai Vinayagar Temple and Anr. Vs. Meenakshi Ammal and Ors.7on
the aspect that:
"It is trite that the obligation and duty to frame Issues is
cast solely on the Court which may, nevertheless, elicit
suggestions from the litigating adversaries before it. Issues
settled by the Court under Order XIV CPC constitute the
crystallization of the conflict or the distillation of the
dispute between the parties to the lis, and are in the nature
of disputed questions of fact and/or of law. While
discharging this primary function, the Court is expected to
peruse the pleadings of the parties in order to extract their
essence, analyse the allegations of the parties and the
contents of the documents produced by them, and,
thereafter, proceed to frame the Issues."
26. As no counter claim was made by the defendant claiming the suit
schedule property as that of him basing on the settlement deed, no rejoinder
need to be filed by the plaintiff under Order VIII, Rule 6 of C.P.C.. Though
the importance of pleadings cannot be ignored and the courts ought to have
framed the issue with regard to the validity of the settlement deed or
maintainability of the suit, non framing of an issue is not fatal in each and
(2015) 3 SCC 624
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every case. If the parties are aware of the pleadings and had adduced
evidence with regard to it, the absence of the issue may not be fatal and it
could be considered only as an irregularity. Though an issue was not
specifically framed, but was covered by implication and the parties knew
about the pleas raised and involved in the trial, the mere fact that the plea
was not expressly taken in the issues would not be fatal to the case. If the
parties knew that the matter in question was involved in the trial and had
adduced the evidence about it, no injustice would be caused even if no issue
was framed in the said regard. The appeallant-defendant had adduced
evidence with regard to the settlement deed and got marked the same as
Ex.B5.
27. The Hon'ble Apex Court in Kale and Ors. Vs. Deputy Director of
Consolidation and Ors.(1 supra)¸ while considering the essentials of a
family settlement laid down the following propositions:
"10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form, the
matter may be reduced into the form of the following
propositions:
(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family;
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(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence:
(3) The family arrangement may be even oral in which case
no registration is necessary;
(4) It is well-settled that registration would be necessary
only if the terms of the family arrangement are reduced into
writing. Here also, a distinction should be made between a
document containing the terms and recitals of a family
arrangement made under the document and a mere
memorandum prepared after the family arrangement had
already been made either for the purpose of the record or
for in formation of the court for making necessary
mutation. In such a case the memorandum itself does not
create or extinguish any rights in immovable properties and
therefore does not fall within the mischief of Section
17(2) of the Registration Act and is, therefore, not
compulsorily registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if one
of the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or
titles in favour of such a person and acknowledges him to
be the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld and the
Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which
may not involve legal claims are settled by a bona fide
family arrangement which is fair and equitable the family
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arrangement is final and binding on the parties to the
settlement."
28. As seen from the facts of the present case, the family settlement is not
oral, but was reduced into writing. As per the recitals of the said document
marked under Ex.B5, it was not a mere memorandum prepared after the
family arrangement was made. It was also extinguishing the rights of the
plaintiff over the schedule property. As such, it requires registration under
Section 17(2) of the Registration Act.
29. The Hon'ble Apex Court in Yellapu Uma Maheswari and Another
Vs. Buddha Jagadeeswara Rao and Ors. (2 supra) on the effect of non-
registration of document required to be registered under Section 49 of the
Registration Act, 1908 held that:
"Section 17 (1) (b) of the Registration Act mandates that
any document which has the effect of creating and taking
away the rights in respect of an immovable property must
be registered. Section 49 of the Act imposes bar on the
admissibility of an unregistered document and deals with
the documents that are required to be registered under
Section 17 of the Act."
And further held that:
"16. Then the next question that falls for consideration is
whether these can be used for any collateral purpose. The
larger Bench of Andhra Pradesh High Court in Chinnappa
Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari
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Vankat Reddy , AIR 1969 A.P. (242) has held that the
whole process of partition contemplates three phases i.e.
severancy of status, division of joint property by metes and
bounds and nature of possession of various shares. In a suit
for partition, an unregistered document can be relied upon
for collateral purpose i.e. severancy of title, nature of
possession of various shares but not for the primary
purpose i.e. division of joint properties by metes and
bounds. An unstamped instrument is not admissible in
evidence even for collateral purpose, until the same is
impounded. Hence, if the appellants/defendants want to
mark these documents for collateral purpose it is open for
them to pay the stamp duty together with penalty and get
the document impounded and the Trial Court is at liberty to
mark Exhibits B-21 and B- 22 for collateral purpose subject
to proof and relevance."
30. The contention of the learned counsel for the appellant-defendant was
that the document was impounded and necessary stamp duty together with
penalty was paid, as such, the document could be looked into for collateral
purpose to prove the possession of the defendant, basing on the said
settlement deed.
31. In Sita Ram Bhama Vs. Ramvatar Bhama(4 supra), the Hon'ble
Apex Court held that:
There is only one aspect of the matter which
needs consideration, i.e., whether the document dated
09.09.1994 which was inadmissible in evidence could
have been used for any collateral purpose. In a suit
for partition, an unregistered document can be relied
upon for collateral purpose i.e. severance of title,
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nature of possession of various shares but not for the
primary purpose i.e. division of joint properties by
metes and bounds. Further, an unstamped instrument is not
admissible in evidence even for collateral purpose, until
the same is impounded. A two Judge Bench
judgment of this Court in Yellapu Uma Maheswari and
Anr. Vs. Buddha Jagadheeswararao and others
[(2015) 16 SCC 787], is appropriate. In the above case
also admissibility of documents Ex. B21 dated 05.06.1975
a deed of memorandum and Ex. B22 dated 04.06.1975
being an agreement between one late Mahalakshamma,
respondent No.1 plaintiff and appellant No.1defendant
came for consideration. Objection was taken
regarding admissibility which was upheld both by the
High Court and trial court. Matter was taken up by this
Court. In the above case, this Court held that the
nomenclature given to the document is not decisive factor
but the nature and substance of the transaction has to be
determined with reference to the terms of the
documents. This Court after considering both the
documents, Exs.B21 and B22 held that they
requireregistration. In paragraph 15 following was held:
"15. It is well settled that the nomenclature given
to thedocument is not decisive factor
butthenature andsubstance of the transaction has
to be determined with reference to the
terms of the documents and that the
admissibility of a document is entirely
dependent upon the recitals contained in
that document but not on the basis of the
pleadings set up by the party who seeks to
introduce the document in question. A thorough
reading of both Exs.B21 and B22 makes it
very clear that there is relinquishment of
right in respect of immovable property through
a document which is compulsorily registrable
document and if the same is not registered, it
becomes an inadmissible document as
envisaged under Section 49 of the Registration
Act. Hence,Exts. B21 and B22 are the
documents which squarely fall within
the ambit of Section17(1)(b) of the Registration
Act and hence are compulsorily registrable
documents and the same are inadmissible in
evidence for the purpose of proving the
factum of partition between the
parties. We are of the considered opinion that
Exs. B21 and B22 are not admissible in
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evidence for the purpose of proving primary
purpose of partition."
14. After holding the said documents as inadmissible,
this court further proceeded to consider the question as
to whether the documents B21 and B22 can be
used for any collateral purpose. In the above context
the Court accepted the submission of the appellant that
the documents can be looked into for collateral purpose
provided appellant defendant to pay the stamp
duty together with penalty and get the document
impounded. In paragraphs 16 and 17 following
has been laid down:
"16. Then the next question that falls for
consideration is whether these can be used for
any collateral purpose. The larger Bench of the
Andhra Pradesh High Court in Chinnappareddi-
gari Peda Mutyala Reddy v. Chinnappareddi-
gari Venkata Reddy(AIR 1969 AP 242) has
held that the whole process of partition
contemplates three phases i.e., severancy
of status, division of joint property by metes and
bounds and nature of possession of
various shares. In a suit for partition, an
unregistered documentcan be relied upon for
collateral purpose i.e. severancy of title,
nature of possession of various shares
but not for the primary purpose i.e., division of
joint properties by metes and bounds. An
unstamped instrument is not admissible in
evidence even for collateral purpose, until the
same is impounded. Hence, if the appellant-
defendant want to mark these documents
for collateral purpose it is open for them to pay
the stamp duty together with penalty andget
the document impounded and the trial court is
at liberty to mark Exts.B21 and B22 or
collateral purpose subject to proof and
relevance.
17. Accordingly, the civil appeal is partly
allowed holding that Exts. B21 and B22
are admissible in evidence for collateral
purpose subject to payment of stamp duty,
penalty, proof and relevancy."
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32. In the present case, the possession of the defendant was not disputed as
the suit is filed for recovery of possession and ejectment of the defendant
from the suit schedule property. The possession of the defendant was
admitted by the plaintiff. The contention of the plaintiff was that the
defendant was in unauthorized occupation of the suit schedule property and
was also collecting rents from the other tenants, but was not depositing the
same before the Court. The contention of the appellant-defendant on the
other hand was that his possession was as per his own right and entitlement
under the family settlement deed. The severance of title of the plaintiff due
to this family settlement deed and the shares of the family members as per
the said document being the primary purpose of the document could not be
looked into. As such, the defendant could not rely upon Ex.B5 to prove his
right or entitlement over the property.
33. The plaintiff though admitted her signature on the document was
contending that her signature was obtained under duress. The plaintiff was
claiming her right over the suit schedule property by virtue of sale deed
marked under Ex.A1. She was the absolute owner of the suit schedule
property, as per Ex.A1. As rightly observed by the courts below, the
document being a 30 years old document, carries with it a presumption of its
genuinity. The defendant though contended that the sale consideration was
paid by his father, as such, the same was a joint family property, during the
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lifetime of his father, his father never claimed it as his own property. His
father gifted the properties standing on his name to all the three sons during
his life time but not the property marked under Ex.A1.
34. The family settlement deed must be bonafide one and there should be a
fair and equitable division of allotment of properties between the various
members of the family, as per the propositions laid by the Hon'ble Apex
Court in Kale and Ors. Vs. Deputy Director of Consolidation and Ors. (1
supra). But in the present case, the plaintiff, who was having title over the
property was not given any share in the property and the settlement was
made between the male members of the family. The other female members
of the family were also not included in the family settlement deed to
consider the same as bonafide, fair or equitable.
35. The members, who were parties to the family arrangement also must
have some antecedent title, claim or interest or a plausible claim in the
property, which must be acknowledged by the parties to the settlement.
Both the courts below on considering the evidence adduced held that the
defendant failed to prove that the suit scheduler property was purchased by
his father in the name of the plaintiff and the sale consideration was paid by
his father. As the property is standing in the name of the plaintiff, it should
be considered as her absolute property and the defendant had no antecedent
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title, claim or interest in the said property to uphold the family arrangement
or to give assent to the same by the courts.
36. This Court also does not find any merit in the contention of the learned
counsel for the appellant that the family arrangement would operate as an
estoppel on the plaintiff as she had not taken any advantage under the said
document to operate as an estoppel on her. It was the appellant-defendant,
who had taken advantage under the agreement, but not the plaintiff to
operate as an estoppel.
37. As such, both the courts below are justified in not considered Ex.B5
settlement deed. This Court does not find any substantial question of law
involved in this matter.
38. In the result, the Second Appeal is dismissed confirming the judgments
of the courts below. No order as to costs.
As a sequel miscellaneous applications pending in this appeal, if any
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 03-06-2024.
ss
