Telangana High Court
B. Sarojini vs B.Channaiah on 3 June, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.86 of 2009
JUDGMENT:
This second appeal is filed against the Judgment and
decree dated 06.11.2008 in A.S.No.439 of 2004 passed by the
learned XVII-Additional Chief Judge-cum-III-Additional
Metropolitan Sessions Judge, Hyderabad, in which the
Judgment and decree dated 06.08.2004 in O.S.No.4845 of 1999
passed by the learned I-Additional Rent Controller-cum-XIII-
Junior Civil Judge, Hyderabad, was confirmed.
2. Initially, respondent No.1/plaintiff had filed a suit vide
O.S.No.4845 of 1999, for partition and separate possession
against the appellants/defendants No.2 & 9 and other
respondents herein. Though the defendants in the suit filed
written statement, did not adduce any evidence, as such the
trial Court decreed the suit by Order dated 14.08.2002. Later, it
was restored and suit was disposed of on merits by another
officer on 06.08.2004. Aggrieved by the said Order, defendants
No.2 & 9 preferred the present an appeal, in which the Order of
the trial Court was confirmed. Aggrieved by the same,
appellants preferred the present second appeal. Though the
present appeal is preferred against the Order dated 06.08.2004,
by inadvertence the Order dated 14.08.2002 is placed in the
record filed along with the second appeal. The said Order dated
06.08.2004, was filed before this Court at the time of
arguments.
3. The learned Counsel for the appellants/defendants No.2
& 9 raised the following substantial questions of law:
"a) Whether the findings of the Courts that the first
respondent is the son of late Zamaiah, the father in law of
the first appellant and grand-father of the second
appellant is justified?
b) Whether the findings of the Court below in regard to
holding property to be joint family, without establishment
of joint family status is not perverse.
c) Whether the Courts below erred in law in not
appreciating that the suit schedule property stands in the
name of the husband of the first appellant and father of
the second appellant herein and therefore is beyond pale
of partition.
4. The parties herein are referred as plaintiff and defendants
as arrayed before the trial Court for the sake of convenience.
5. The brief facts of the case are that originally the property
bearing Municipal No.10-4-38/43 admeasuring 125 Sq.yrds,
situated at Pochamma Basti, Hyderabad was purchased by the
father of the plaintiff Zamaiah, during the year 1960. Apart from
that his father also purchased the property bearing No.10-4-
38/43/1 in the name of one R.Balraj i.e., husband of defendant
No.2. Initially his father Zamaiah married his mother and later
married one Chandramma as second wife. The defendant No.1,
husband of defendant No.2 and defendants No.3 to 5 are the
children of the second wife. Zamaiah died intestate long back
and the said Balraj was also died six months prior to the filing
of the suit. During his life time, Balraj sold the property bearing
No.10-4-38/43/1, but did not give share to the plaintiff. He
assured the plaintiff that he will give share of the plaintiff, but
the sale proceeds is being deposited in the bank account of
defendant No.2.
6. Plaintiff in the suit stated that he is having 1/7th share in
the joint family property along with other defendants. When he
demanded for partition of the suit schedule property, defendant
No.2 was postponing the same on one or other pretext. Finally,
on 30.09.1999, in the presence of defendants No.3 and 5, she
refused for partition and further stated that she is the absolute
owner of the property. He also stated that as he was the first
class legal heir of the deceased Zamaiah, he was entitled for
1/7th share of the suit schedule property. All the documents
pertaining to the suit schedule property are with the defendant
No.2. Taking advantage of the same, she refused to give share,
as such he filed suit for partition.
7. In the written statement filed by defendant No.2, she
denied that the suit schedule property was purchased by the
said Zamaiah in the year 1960, in the name of her husband
R.Balraj. She admitted that Zamaiah married the mother of the
plaintiff for the first time and later married to one Chandramma
and defendant No.1, her husband and defendants No.3 & 4 are
the children of second wife, as such there is no dispute
regarding the relationship between the parties. She further
stated that she married R.Balraj and blessed with three
daughters and two sons. Both the sons died in the year 1995
and 1999 respectively and her husband was also died on
22.03.1999. She also stated that plaintiff never performed the
last rites of his father and did not attend any function of his
father, as such he has nothing to do with the suit schedule
property. She also stated that suit schedule property is the self-
acquired property of her husband Balraj, as such she along with
her daughters are having 1/4th share and plaintiff is not entitled
for any share, but she herself again stated that she intended to
give one share to the plaintiff, as such he is entitled for 1/5th
share along with herself and other daughters.
8. Defendants No.1, 3 to 6 had also filed written statement
and they admitted their relationship. Defendant No.8 also filed
another written statement and stated that originally the suit
schedule property belongs to her father and it was constructed
with his own earnings, as such plaintiff has no manner of right
over the suit property and not entitled for 1/7th share. She
admitted that their grand-father Zamaiah was a mason by
profession. She also stated that widows of Rajasekhar and
Chandrasekhar are entitled to share in the property.
9. The plaintiff examined himself before the trial Court as
P.W.1 and marked Exs.A1 to A3 on his behalf. Defendants got
examined D.Ws.1 and 2 and marked Exs.B1 to B13 on their
behalf. The trial Court observed that there is no dispute
regarding the relationship of the parties. Though defendant No.2
admitted to give one share to the plaintiff in her written
statement, she denied it in the Cross-examination. It was also
observed that as per Exs.B1 to B3-municipal tax receipts,
wedding card, water tax bills and other communication letters,
the suit schedule property was in the name of Balraj. Though
defendant No.2 stated that the suit property is the self-acquired
property of Balraj, the trial Court observed that there is no proof
to show that Balraj purchased the property with his own
earnings, as such it is the ancestral property. D.W.1 stated that
neither her father nor her mother informed about the plaintiff
and her father did not introduce the plaintiff as brother. She did
not know whether plaintiff's father name was shown as
Zamaiah in all municipal records and other records. It was also
observed that in the written statement of defendants No.1, 3 to
6, it was mentioned that "it is not disputed that Zamaiah first
married the mother of plaintiff and later married Chandramma
for the second time." Plaintiff is the son of first wife of Zamaiah
and the husband of defendant No.2, defendants No.3 to 6 are
the children of second wife of Zamaiah. As the property is the
ancestral property, defendants No.1 to 6 are entitled for equal
share, but in this case defendants No.1 to 6 were not examined
as witnesses. Only defendant No.9, who is the daughter of
defendant No.2 contested the matter stating that she is having
share. It was also observed that defendants No.7 and 8 did not
have equal share in the suit schedule property, but they have
right over the share allotted to defendant No.2, as they are not
class 1 legal heirs and finally suit was decreed in favour of the
plaintiff and further held that plaintiff is entitled for 1/7th share
in the suit schedule property. Aggrieved by the said Order,
defendants No.2 and 9 preferred an appeal before the first
appellate Court. The first appellate Court also held that the
mother of the plaintiff died and Zamaiah married Chandramma.
Defendant No.1, defendants No.3 to 6 and the deceased Balraj
are the children of Chandramma and thus it is clear that
plaintiff is the son of first wife of Zamaiah. Plaintiff also
admitted Exs.B1 to B13 and further stated that the suit
property was purchased by his father in the name of his brother
Balraj. The said fact was denied by defendants No.2 and 9, but
in the Cross-examination, defendant No.9/D.W.1 admitted that
suit schedule property was purchased by her grand-father
Zamaiah, as such the claim of the defendants that it is the self-
acquired property of Balraj cannot be accepted. The first
appellate Court further held that when once it is held that
property is a joint family property, plaintiff is also entitled for
one share within seven shares and accordingly confirmed the
Judgment of the trial Court.
10. The learned Counsel for the appellants/defendants No.2
and 9 relied upon the decision of the Hon'ble Apex Court in the
case of Union of India and others Vs. Vasavi Cooperative
Housing Society Limited and others, 1 in which it was held as
follows:
"It is trite law that, in a suit for declaration of title, the
burden always lies on the plaintiff to make out and
establish a clear case for granting such a declaration
and the weakness, if any, of the case set up by the
defendants would not be a ground to grant relief to the
plaintiff."
He further relied upon the decision of the Hon'ble Apex Court in
the case of Kulwant Kaur and others Vs. Gurdial Singh
Mann and others, 2 in which Section 103 of Code of Civil
Procedure reads as follows:
"103. In any second appeal, the High Court may, if the
evidence on the record is sufficient, determine any issue
necessary for the disposal of the appeal:
a) which has not been determined by the lower
appellate Court or by both the Court of first instance and
the lower appellate Court, or
b) which has been wrongly determined by such court or
courts by reason of a decision on such question of law
as is referred to in Section 100."
The requirements stand specified in Section 103 and
nothing short of it will bring it within the ambit of Section
100 since the issue of perversity will also come within
the ambit of substantial question of law as noticed
(2014) 2 SCC 269
(2001) 4 SCC 262
above. The legality of finding of fact cannot but be
termed to be a question of law. We reiterate however,
that there must be a definite finding to that effect in the
judgment of the High Court so as to make it evident that
Section 100 of the Code stands complied with."
11. The Section 100 of the C.P.C reads as follows:
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 exparte.
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
appeal, be allowed to argue that the case does not
involve such question.
12. In the light of the above citations, it is for this Court to
see whether the Judgment of the first appellate Court and the
trial Court are on proper appreciation of facts or not.
13. Admittedly, second appeal is preferred against the
concurrent findings of both the Courts. There is no dispute
regarding the relationship between plaintiff and defendants in
the suit. Admittedly, plaintiff is the son of the first wife of
Zamaiah and defendants are children of second wife. It seems
that Zamaiah performed another marriage only after the death
of first wife. Plaintiff contended that his father purchased the
property in the name of his brother Balraj, but he is no more.
The wife of Balraj/defendant No.2 initially stated that she is
having three daughters and two sons, but both sons were died,
as such she along with her daughters are entitled for 1/4th
share. Plaintiff is the son of first wife of Zamaiah and agreed to
give 1/5th share to him, but in the Cross-examination she did
not stick to her version of the written statement. Plaintiff
contended that his brother Balraj during his life time assured to
give him share in the property, but he died 6 months prior to
the filing of the suit. Though the property was sold away, the
sale proceeds were deposited in the bank account of defendant
No.2. When he requested defendant No.2, she refused for
partition on 30.09.1999. He further stated that all the
documents are with defendant No.2, taking advantage of the
same, she is not willing to give share, as he has no other
alternative, filed suit for partition. The trial Court and the first
appellate Court rightly considered the entire evidence on record
and decreed the suit in favour of the plaintiff. The second appeal
is preferred by defendants No.2 and 9 in the suit. In a memo
filed by the appellants/defendants No.2 and 9, dated
16.03.2023, it is mentioned that appellant No.1/defendant No.2
died on 11.11.2011 and brought her legal heirs on record. So
also, defendants No.3 and 5 were also died and there are no
legal heirs to defendants No.3 and 5. Even now, plaintiff is
entitled for 1/7th share and thus this Court finds that there are
no merits in the second appeal and accordingly it is dismissed.
14. In the result, the second appeal is devoid of merits and is
dismissed, confirming the concurrent findings of both the
Courts. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATE: 03.06.2024
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