1
IN THE COURT OF THE PRL. SENIOR CIVIL JUDGE ::
NARASARAOPET.
PRESENT: Smt. A.Lakshmi, B.Com., B.L., Prl. Senior Civil Judge, Narasaraopet. Friday, this the 15th day of September, 2017
O.S. No. 131 / 2013
Between:- Atmakuri Pitchaiah s/o. Late Subbarao, Hindu, Aged about 38 yrs., Business, r/o. Door No. 1-2-54, JKC Nagar, Guntur, Guntur JCJC., ...Plaintif
And
1.Atmakuri Dhana Lakshmi w/o. Late Subbarao, Hindu, Aged about 51 yrs., House Wife, R/o.door No.12-19-11/2, In thehouse of Arvapalli Radha Krishna, Near Deepthi School, 60 feet road, Prakash Nagar, Narasaraopet Town
& JCJC.,
2.Atmakuri Rajendra Prasad s/o. Late subbarao, Hindu, aged about 26 yrs., Private Employee, R/o.Door No.12-19-11/2, In the house of Arvapalli Radha Krishna, Near Deepthi School, 60 feet road, Prakash Nagar, Narasaraopet Town
& JCJC.,
2.Atmakuri Lakshmi Bhavani s/o. Late subbarao, Hindu, aged about 30 yrs., Mother’s Protection, R/o.Door No.12-19-11/2, In the house of Arvapalli Radha Krishna, Near Deepthi School, 60 feet road, Prakash Nagar, Narasaraopet Town
& JCJC.,
...Defendants.
The suit is coming before me on 28-08-2017 for final hearing in the presence of Sri. N. Lakshmi Narayana, advocate for the plaintif and of Sri. S. Ayyapa Raju, advocate for Defendants and upon hearing the arguments and perusing the material on record and having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
The Suit is filed by the Plaintif for declaration of right and title of the Plaintif over the Suit Schedule Property by holding that the Partition
Deed dt.18-5-1996 is nominal one and does not confer any rights on
Atmakuri Subbarao and for consequential recovery of vacant possession of the same and for mesne profits and for recovery of Rs.3,00,000/- towards damages for illegal demolition of the building in the suit schedule property.
2 2. The brief averments of the Plaint are that the plaintif is the son of one late Atmakuri Subbarao. The plaintif was born to late
Atmakuri Subbarao through his 2nd wife Mangamma. D.1 is the first wife of late Atmakuri Subbarao and D.2,D.3 are the children of late Atmakuri
Subbarao through D.1. The Plaintif’s mother Mangamma purchased a thatched house bearing Door No.12-19-10 in Prakash Nagar,
Narasaraopet, vacant site in an extent of 118 square yards situated to the south of the house bearing Door No.12-19-10 and vacant site an extent of 60.1 square yards situated on the north of the above said 118 square yards under a Registered Sale Deeds Dt.11-4-1984, 12-4-1984 and 2-3-1987 respectively with her own funds. Late Mangamma raised a terraced house on the eastern portion of the property covered by the three above sale deeds by retaining the thatched house on the western side. She shifted into the terraced house on the eastern side.
Subsequently, she raised terraced house in the western portion of the property after removing the thatched house. Then she shifted to the new house and let out the terraced house on the eastern side. She enjoyed the entire property consisting of two buildings covered with absolute rights till her demise on 16-9-1994. She executed her last Will and testament on 18-11-1993 in a sound and disposing state of mind bequeathing her entire property to the plaintif. After demise of
Mangamma, the said Will came into force and that the plaintif became absolute owner of the suit schedule property by virtue of the said Will.
While things stood thus, D.1 deserted late Atmakuri Subbarao and started to live at Chilakaluripet in a rented house. After death of
Mangamma, late Atmakuri Subbarao wanted to shift the Defendants from Chilakaluripet to Narasaraopet. Late Atmakuri Subbarao influenced the Plaintif and made him to agree to enter into a nominal partition 3 deed dt. 18-5-1996. The said Partition Deed dt. 18-5-1996 is nominal document and it does not confer any rights to late Atmakuri Subbarao in respect of the property allegedly allotted to him under the said Partition
Deed. The plaintif permitted the late Atmakuri Subbarao to reside in the suit schedule property with the Defendants. After the death of Atmakuri
Subbarao on 5-10-2001, the plaintif permitted the Defendants to continue to stay in the suit schedule property and that the Defendants did not get any rights over the suit schedule property. The plaintif has shifted to Guntur for his business purpose. Taking advantage of absence of Plaintif, the Defendants demolished the building in the suit schedule property without any manner of right and without knowledge of the plaintif. The Defendants have caused loss of Rs.3,00,000/- to the plaintif by demolishing the building in the suit schedule property and that the Defendants are liable to compensate the Plaintif. The
Defendants further making hectic eforts to evict the tenant of the plaintif who is residing in the house situated to the west of the suit schedule property by threatening to close down the septic tank which is a joint one for both the houses i.e., the house in the suit schedule property and the house on the western side. The plaintif got issued a notice on 2-2-2013 to D.1 and D.2. They issued reply on 15-2-2013 with false allegations. The Defendants have committed theft of some of original documents of the plaintif. Out of them, one is the original Will
dt. 18-11-1993 executed by Atmakuri Mangamma. Hence, the Plaintif
constrained to file the suit.
3. The First Defendant filed the written statement which was
adopted by Defendants 2 and 3 by denying the averments of the
Plaint and further contended that the frame of the suit is not correct and there is no cause of action for the Plaintif to file the suit. Having 4 received the notice Dt. 2-2-2013 from the Plaintif , he issued suitable reply with true facts on 5-2-2013. Late Atmakuri Subbarao is the son of maternal aunt of D.1 and he married D.1 in the year, 1972. He used to do business in sale of pearls and etc., Subsequently, he developed illicit intimacy with the plaintif’s mother and married her as his second wife.
Due to influence of mother of plaintif, late Atmakuri Subbarao invested the entire amount earned out of his business and got purchased the vacant site at Prakash Nagar, Narasaraopet in the name of Plaintif’s mother. In fact late Atmakuri Subbarao borrowed amounts and income derived from the sale proceeds of the house property in the name of D.1 which she got purchased with her Sridhana Property, got constructed a house at Prakash Nagar in the vacant site purchased in the name of plaintif’s mother. After demise of his mother , the plaintif demanded late Atmakuri Subbarao to give some properties to him and also partition the properties under Register Partition Deed Dt. 18-5-1996. After the death of Atmakuri Subbarao, the Defendants have succeed to the estate of late Atmakuri Subbarao and they have been in exclusive possession and enjoyment of the property situated on the east. Late Atmakuri
Subbarao executed a Will in a sound and disposing state of mind on 14- 6-2001 bequeathing the eastern portion of the property which he got the same under Partition Deed dt. 18-5-1996. After the death of late
Atmakuri Subbarao, the said Will came into force and D.1 along with D2 and D.3 residing in the suit schedule property having right, title and possession over the same.
As matter stood thus, the plaintif and Defendants came to an understanding for the enjoyment of the property and got executed a
Family Arrangement and understanding on 2-2-2002 confirming their rights over the properties with reference to the documents and plaintif 5 taken away the original document in order to submit the same in the
Bank as a security for obtaining loan. D.1 being the absolute owner of the property bequeathed the same in favour of his son i.e., D.2 under a
Registered Gift Deed dt. 12-7-2005 and the same was acted upon them and that D.2 mutated the Revenue Records. Taking advantage of old age of D.1 and D.3 and also their poverty, the plaintif who is having men and muzzle power, trying to threaten and blackmail the Defendants to grab the suit schedule property. D.2 with an intention to renovate the existing old building which is in a dilapidated condition, removed the same and started construction of small house for residence purpose.
There is a septic tank situated south east corner of the house property fell to the share of the plaintif which is being used by Defendants since several years. In fact the septic tank for the latrines of both the properties are situated in the property fell the share to the plaintif and a part of it about two feet situated in the house property of the plaintif.
As the Defendants demolished old house and are making constructions requested the plaintif to cooperate for the removal of the tank or make necessary arrangement for the same the plaintif, taking advantage of the same and filed the suit with false allegations. The claim of the plaintif is barred by limitation and that the suit is liable to be dismissed.
The plaintif also filed O.S.No.62/13 on the file of PJCJ, Narasaraopet for recovery of the amount. In the said suit they filed written statement and contest the matter. In fact the plaintif took away the entire amount promising to pay the same for the marriage and education expenses of
D.2 and D.3 and when the Defendants demanding the plaintif for repayment of the said amount, the plaintif filed this suit and
O.S.No.62/2013 with false allegations. Therefore, the Defendants prayed
to dismiss the suit.
6
4.Basing on the above pleadings, the following issues were settled for trial:-
1) Whether the plaint schedule property was purchased with the own funds of plaintif’s mother by name Mangamma?
2) Whether the Will dt.18-11-1993 is true, valid and binding on the Defendants?
3) Whether the Registered Partition Deed dt.18-5-1996 is nominal and not acted upon?
4) Whether the Plaintif is entitled to ask for Declaration as prayed for?
5) Whether the Plaintif is entitled to recover the damages for Rs.3,00,000/-?
6) Whether the plaintif is entitled to ask for mesne profits?
7) To What relief?
5. On behalf of the plaintif, P.ws.1 to 3 were examined and Ex.A1 to Ex.A12 were marked. On behalf of the Defendants, D.Ws.1 to 3 were examined and Ex.B.1 to Ex.B.17 were marked.
6. Heard arguments on behalf of Plaintif. The counsel for the
Defendants filed written arguments.
8. ISSUE NO. 1 :-
The suit is filed by the plaintif as son of second wife of one
Atmakuri Subbarao for declaration of his title to the schedule property after holding that the partition deed dt. 18-5-1996 is only a nominal and does not confer any rights on the above Atmakuri Subbarao and for consequential recovery of possession. It is an admitted fact that one
Atmakuri Subbarao got two wifes Mangamma and D.1. The plaintif is the son of said Manamma through the said Atmakuri Subbarao. D.2 and D.3 are the children of D.1 through the said Atmakuri Subbarao. It is also an admitted fact that the properties covered under Ex.A1 to Ex.A3 are in the name of the said Mangamma the mother of the plaintif. The schedule property which is shown as 52 square yards is the property in the name of said Mangamma. It is the case of the plaintif that the schedule property belonged to her mother. It is her absolute property 7 and she enjoyed the same till her death and died testate on 16-9-1994 by executing Will dt. 18-11-1993 which is xerox copy Ex.A4 bequeathing her entire property to the plaintif and the plaintif is the absolute owner of the schedule property and other properties of his mother Mangamma.
It is the case of the plaintif that at the influence of his father he entered into partition Deed dt. 18-5-1996 Ex.A5 and during the life time of his father they used to live in the schedule property and after demise of his father, he permitted the Defendants to live in the schedule property, but taking advantage of his absence who shifted to Guntur for his business, the Defendants demolished the building in the schedule property and also making eforts to evict the tenants residing in the house siuated to the west of the suit schedule building. Hence, the plaintif on issuing notice under Ex.A6 filed the suit. The Defendants also got issued reply under Ex.A7 with false allegations alleging that the schedule property was acquired with the funds of late Subbarao and later executed letter of understanding on 2-2-2002 expressing their intention to raise some constructions , but the plaintif denies the above letter of understanding and prays to decree the suit.
9. The plaintif who filed the suit has to establish that the schedule properties belonged to his mother Mangamma and purchased with her own funds and she was the absolute owner of the schedule property. In the plaint , the Plaintif stated that his mother purchased a thatched house bearing Door No. 12-19-10, 118 square yards and 60.1 square yards under three separate sale deeds Ex.A1 to Ex.A3 on 11-4-1984, 12-4-1984 and 2-3-1987 with her own funds and later she raised terraced house on the eastern portion of property covered under the above three sale deeds while retaining the thatched house on the western side and subsequently she also constructed terraced house in 8 the western side portion and she used to live in the western side terraced house by letting out the eastern side terraced house which is schedule property. In respect of the ownership of said Mangamma , it is the contention of the Defendants that the schedule property was acquired with the funds of late Subbarao and the said Mangamma had no source of income and the said Subbarao who was under the influence of the said Mangamma purchased properties in the name of said
Mangamma and the properties are belonged to Subbarao and for that reason the plaintif also entered into partition Deed Ex.A5 with the
Subbarao and later on 2-2-2002 a letter of understanding was executed which shows that the schedule property belonged to Subbarao and plaintif cannot claim absolute right over the schedule property and the suit is liable to be dismissed.
10. The counsel for Defendants also drew the attention of this court to the evidence of P.w.1 who stated that there is no evidence with P.w.1 to show that her mother done milk business and he does not know his mother is having own house and other properties at Narasaraopet.
Admittedly, the mother of plaintif is a divorcee from her first husband and she worked as a Sweeper in the studio of P.w.2 and others. It is submitted that Subbarao and mother of plaintif got married long back and purchased the properties under Ex.A1 to Ex.A3 after long time from their marriage and Mangamma had no properties or income and it is evident that Subbarao purchased the properties in the name of
Mangamma and the property shall not be the absolute properties of
Mangamma. On the other hand , it is the contention of the plaintif that the marriage in between Subbarao and Mangamma is no marriage in the eye of law and there is no evidence to show that said Subbarao himself purchased the properties in the name of Mangamma and even if any 9 such properties are purchased, they will become the absolute properties of Mangamma. As seen from the evidence of P.w.1 , he stated that in the year, 1993 two houses were purchased at Srirampuram by his mother and those properties were sold in the year,1995 after the death of his mother. He also stated as his father told him that they will sell the houses he asked him to sign, therefore, he signed on those deeds and money was taken by his father. It is also stated that he was under protection of his father by that time and he was studying. It is the contention of the Defendants in respect of the same that the above properties were purchased by the said Subbarao in the name of plaintif and sold the same and purchased the house in Prakash Nagar which is on the western side of the schedule house. Though the same was raised in the evidence of P.w.1, but no document is filed by both the parties though they are registered documents and available for filing those documents. As seen from the partition Deed Ex.A5 dt. 18-5-1996 alleged to be executed in between plaintif and his father at second page , it is clearly mentioned that the property covered under it is the self acquired property of Mangamma and as she died intestate about two years ago , himself and plaintif are partitioning the properties. It is also mentioned that the properties which were devolved upon them from Mangamma the immovable and movable properties were already partitioned and except those properties there are no other properties to Mangamma. In
Ex.B.9 Will dt. 14-6-2001 also it is mentioned that it is the property of
Mangamma and same was partitioned among himself and plaintif under
Ex.A5 Partition Deed . The property fell to the share of Subbarao i.e., A-
Schedule property being bequeathed to D.1. If at all the properties were purchased by Subbarao in the name of Mangamma the same would have been mentioned in those documents , but the said Subbarao himself 10 made mention clearly that the properties are self acquired properties of
Mangamma. During the life time of Mangamma , she worked and she got income.
11. As seen from Ex.A1 to Ex.A3 the properties are in the name of Mangamma which included the schedule property. When the properties are in the name of Mangamma and when the marriage between the mother of the plaintif and Subbarao is not valid under law as the marriage in between and D.1 and Subbarao was in existence, the exception under Benami Act does not apply and purchasing property in the name of Mangamma as Benami is also not valid under law as
Mangamma is a third party as per law and hence, it cannot be said that the said Mangamma had no source of income and she acquired properties with the funds of Subbarao, the same were purchased. Once the properties are in the name of Mangamma, it shall be held that she is the absolute owner of those properties and the same were purchased with the funds of Mangamma the mother of the plaintif. The plaintif is able to prove that Mangamma purchased the suit schedule property with her own funds. The issue is held in favour of plaintif .
12. ISSUE No.2 : -
The plaintif filed the suit alleging that his mother Mangamma purchased property under Ex.A1 to Ex.A3 Sale Deeds and she died testate on 16-9-1994 by executing Will under original of Ex.A4 which is xerox copy and bequeathed all her properties. In respect of filing xerox copy of Will Ex.A4, it is submitted that the original will was stolen by the
Defendants. It is submitted that in view of the above Will, it is evident the partition deed Ex.A5 is nominal and he may be declared as absolute owner of the schedule property. The plaintif issued Registered Notice under original of Ex.A6 and stated that the Defendants stolen some 11 documents of the plaintif ,but it is not specifically stated about the Will.
If at all any such Will was in existence by the date of above notice Ex.A6, the plaintif would have been mentioned the same. In the evidence of
P.w.1, he stated that no documents were stolen by the Defendants which is contrary to his notice and plaint averments. As seen from Ex.A5
Partition Deed, it is clear that Mangamma died intestate as she has not made any arrangements in respect of her properties, the partition is being entered into. It is the case of plaintif that his father also signed as an attestor on the Will. If at all he knows about the Will, there would not be such recital in Ex.A5 Partition Deed and there is no necessity to execute Partition deed. So as per Partition deed also there is no Will.
Hence, it creates doubt about existence of Will by the date of Ex.A6 notice. It is the contention of the Defendants that the plaintif filed xerox copy of Will to avoid Expert’s Opinion. In the evidence of P.w.1, he stated that he obtained loan, but basing on Partition Deed he obtained loan. If at all any such Will under which he got absolute right over schedule property also, he would have obtained loan under the Will only.
The other suspicious circumstance is, in the evidence of P.w.1, he stated that from 1993 to 2013 i.e., from the date of the Will till filing of the suit , the will has not seen the light of the day.
13. In respect of proof of Will, it is the burden of the plaintif to prove the same , as per Sec. 68 of Evidence Act. On his behalf P.w.2 was examined in whose photo studio the mother of the plaintif worked,but he could not say who scribed the Will and the persons who signed on
Ex.A4 Will. His evidence is not trust worthy. The other witness is P.w.3.
He was examined to identify the signature of the scribe. He does not know who signed on Ex.A4 Will. He does not have any evidence to identify that the signature on Ex.A4 is that of scribe Sambasiva Rao. He 12 also does not know whether the scribe died about 15 years ago. More over, he stated that at the instance of P.w.1, he came to court to give evidence. In the above circumstances relying on the evidence of P.w.2 and P.w.3 , it cannot be said that the Will transaction took place in their presence and it is true and valid. In respect of the same, it is the contention of the plaintif that even photostat copy can be sent to expert’s opinion. In respect of the same it is the contention of the
Defendants that photostat cannot be sent for expert and filed decision reported in 2006 (4) ALT 694 between Bheri Nageswararao v.
Mavuri Veerabhadrarao and others. It is a decision u/s.45 of
Evidence Act. Where in it is held the signature mark on a xerox copy of a document can never constitute the basis for comparison and opinion by an expert. Xerox copies of a document shall not be sent for expert opinion. But other circumstances also to be seen in order to decide the genuineness of the Will. As seen from the record, if at all any such Will is there, the father has no necessity to enter into partition deed ignoring the Will and subsequently Will in favour of D.1 as per the case of
Defendants. In any view, the Will is not true and valid and plaintif failed to prove the same. The issue is held against the plaintif.
14. Issue No.3 : -
It is the allegation of the plaintif that his mother purchased the schedule property and other properties under Ex.A1 to Ex.A3 and she died on 16-9-1994 and his mother is second wife of his father that D.1 who is first wife deserted his father and started living at Chilakaluripet in a rented house. After the death of the mother of the plaintif , his father wanted to shift the Defendants from Chilakaluripet to Narasaraopet and at that time the plaintif who was boy under the influence of his father and believing the words of his father to make the Defendants to shift 13
Narasaraopet and as they expressed their unwillingness to stay with the plaintif in the same house, the father of plaintif enter into a nominal partition deed dt. 18-5-1996 and it is only a nominal. It is also the case of the plaintif that after the death of his father he allowed the
Defendants to continue in the schedule property, but the Defendants removed the house in the schedule property. Hence, he constrained to file the suit to declare that the above partition deed is nominal. On behalf of the defendants, it is submitted that since the date of partition deed, both the parties are residing separately and enjoying their respective properties and after partition the name of Subbarao was also mutated in the records and paid taxes to the property fell to the share of
Subbarao as per Ex.B1 , Ex.B3, Ex.B4, Ex.B4 and later by D.2 as in
Ex.B.13. In the above partition Subbarao was given A-Schedule and plaintif was given B-Schedule Property and in the year, 2002 the plaintif also obtained loan by mortgaging the share of property by filing the partition deed before Bank. As seen from the evidence of P.w.1, he stated that since 1996 , he has been paying house tax to his building and to the suit schedule house, his father and D.1 are paying the house taxes and from 2005 D.2 is paying tax having two separate connections and electricity service connections and paying separate water tax and electricity consumption charges. It is submitted on behalf of the defendants that the plaintif did not choose to cancel the partition deed either during the life to his father or later and if it is really nominal and suit schedule property belonged to plaintif, he would have obtained loan by mortgaging the entire property by filing the suit. As the partition deed was accepted and acted upon, it cannot be said that it is nominal and the said Subbarao also had no necessity to obtain such nominal document. It is further submitted that as there was partition, the father 14 of plaintif also executed Will on 14-6-2001 bequeathing his share of property under partition deed and basing on the same having right D.1 also executed Gift Deed on 12-7-2005 under Ex.B.17 in favour of D.2 and
D.2 also mutated his name in the revenue records and he is in possession and enjoyment. It is also submitted that the contention of plaintif to get back D.1 to Narasaraopet the above partition deed was executed at the influence of his father is not correct and more over by selling the property of D.1 in the year, 1994 under Ex.B.12 invested the amount for the construction of building. Hence, the partition deed is not nominal as alleged by the plaintif and the plaintif is not entitled for the said relief.
15. It is an admitted fact that the mother of the plaintif is second wife of the said Subbarao and the marriage between mother of plaintif is not legal marriage and she is not legally wedded wife of Subbarao as the marriage between D.1 and Subbarao was subsisting. As rightly submitted on behalf of the plaintif for the husband to inherit there must be a valid marriage between the spouses and that the relationship should be subsisting at the time of death of the female Hindu dying intestate. Though the husband is living away from the wife when the relation is subsisting , the husband is entitled to succeed , but in this case, there is no valid marriage between plaintif's mother and
Subbarao. In respect of the same the contention of the Defendants is that there is no pleading , evidence and issues in respect of that their marriage is void and the plaintif is estopped from taking such plea to take advantage to avoid the share of father under Partition Deed. On behalf of the Defendants filed a decision reported in AIR 1981
Allahabad 42 between Smt. Sheel Wati v. Smt.Ramnandani. It is a decision U/s.5 (i ) Hindu Marriage Act, wherein it is held , marriage not 15 declared to be void for contravening condition in Clause-I of Sec.5 of
District Court. No third person can treat it to be void or have it so adjudicated in any suit or proceeding unless it has already been declared to be so by a decree of nullity in accordance with the procedure, as per the conditions prescribed U/s.5 of the said Act. It is also held that a
Declaration of nullity can be asked for only by either party to the marriage and in any case after the death of one of the parties , nobody can question the validity of the marriage. The above decision does not apply to the present case.
16. Another decision reported in AIR 2009 Chattisghad between
Sona Ralsel v. Smt. Kiranmayee Naik and another. It is also decision u/s.5 ( i) & Sec. 11 of Hindu Marriage Act. Wherein it is held that the petition for declaration of marriage as void can be filed only by either party to the marriage and first wife has no right to file petition u/s.11 along with her husband against second wife. It is also held that the first wife can file civil suit for declaration that the marriage between her husband and second wife is void.
17. The relation between Mangamma and Subbarao admittedly is extra marital relation and when the mother of plaintif is not legally wedded wife inheritance of property after her death does not arise. The only legal heir is the plaintif. Hence, the averments in the partition deed that after the death of Mangamma, Subbarao also inherited the property is not correct and it is unknown to law. Hence, entering into partition deed by the plaintif and his father does not arise. When Subbarao is not entitled to inherit the property of Mangamma, the above partition deed itself is not valid and it need not be declared as nominal as the partition deed itself is not valid and Subbarao has no right to enter into along with the plaintif.
16
18. On behalf of the Defendants by submitting elaborately, it is submitted that after the partition deed, the respective parties acted upon and they are in possession and enjoyment , but once the partition deed itself is not valid, the same was accepted and acted upon does not arise.
19. The above decisions do not apply to the present case as the plaintif has not taken any such plea nor filed the suit for declaration that the marriage is void. It is only submitted that in order to inherit the property of Mangamma, the status of husband and wife must be there between his mother and father. In order to inherit the property, there must be valid marriage. When the marriage between D.1 and Subbarao is in subsisting the marriage of Mangamma and Subbarao is not valid and hence, inheriting property by Subbarao and entered into partition deed does not arise. The parties who inherited the property and who are having right over the property only can enter into partition deed, but the said Subbarao himself admitted in the partition deed Ex.A5 and also
Ex.B.9 Will which prevail over the evidence that it is the property
Mangamma and it is her self acquisition and inheritance of property does not arise. It is held that the Partition Deed Ex.A5 is nominal and does not confer any right on Atmakuri Subbarao. The issue is held in favour of plaintif.
20. Issue No.4 :-
The plaintif filed the suit for declaration that he is absolute owner of schedule property which is an extent of 52 square yards. It is an admitted fact that the schedule property and other properties covered under Ex.A1 to Ex.A3 are in the name of Mangamma the mother of the plaintif. The plaintif alleges that the said properties are of his mother 17 and during her life time , she enjoyed the same and subsequently at the instance of his father ,he entered into partition deed Ex.A5, but his father has no right and entire property belonged to his mother and the
Defendants are permitted to live in the schedule property , but as they are demanding and proclaiming that it is their property and also demolished the building in the schedule property as there is a cloud over his title , he filed the suit.
21. It is the main contention of the Defendants that the properties were purchased with the funds of Subbarao and after the death of
Mangamma there was partition deed Ex.A5 and even in the partition deed also the plaintif was given major share and D.1 was given only small share of property and after the partition deed the same was acted upon and the Defendants are also in possession and enjoyment, but after long lapse of time claiming the right of the plaintif is not correct and plaintif has no right and the suit is liable to be dismissed.
22. It is the main contention of the Defendants that when the plaintif filed the suit for Declaration, he has to seek relief for cancellation of the Partition Deed , but without seeking any such relief filed suit. In support of their submission on behalf of the Defendants filed a decision reported in 1999 (6) ALD 20 between Habeeba Begum and another v. Gulam Rasool and others. It is a decision U/s.31 of
Specific Relief Act. The above case was filed for declaration of title of a particular property and the Defendants contesting the suit relying on partition deeds, where it was contended that the plaintif is a signatory and also relinquishment deed was executed by the plaintif in respect of the suit property, it is held that the suit is not maintainable without seeking a relief of cancellation of the above documents.
18
23. Another decision was also filed reported in 2014 (6) ALT 370 between Sanku Veeraiah and others v. Sanku Veeramma. It is a decision u/s. 34 &38 of Specific Relief Act inter-alia. In the above case, in a suit for Declaration and Permanent Injunction , Cancellation of Sale
Deed and Gift Deed and their legal efect was discussed. Wherein it is held that the execution of registered document cannot cancel them by execution of cancellation deeds and legal remedy available to them is only to file a suit before civil court seeking cancellation of those documents. The above decisions do not apply to the present case as there are registered documents which were executed earlier and until and unless they were cancelled , the right of the plaintif cannot be declared as absolute. But in this case , apparently the schedule properties belonged to the mother of plaintif and question of inheritance to the said Subbarao does not arise and even without seeking cancellation of the Partition Deed , the plaintif got right to seek to declare his right. The contention that the Subbarao has taken only meager part and major part was given to the plaintif also cannot be considered when the said Subbarao is not entitled to inherit the property of said Mangamma. Though it is contended that the partition deed was executed willingly by father and son and if any objection is there , they ought not have signed on it and on that ground also the plaintif is not entitled for declaration. But in this case, signing the partition deed willingly does not arise even if no such partition deed, if the said
Subbarao got right, he will get the share along with the plaintif and no separate deed need be executed.
24. The allegation of the plaintif is that by the date of partition deed he was boy and studying and at the influence of his father he signed in it, but he was aged 20 years by the date of partition and he 19 signed the same after knowing the contents. But as seen from the record, the same cannot be taken into consideration in this case as the inheritance of property by the father does not arise when the property is of exclusive property of plaintif as sole legal heir inherited by him.
25. The other contention of the Defendants is that if any party lost his right or his right was infringed, he has to file suit within three years from the date of knowledge, but in this case though the plaintif executed partition deed long back when he was 22 years old and also he knows that the Defendants living in the schedule property, but without seeking for any declaration within three years, he filed the present suit after long time and on that ground the suit is liable to be dismissed. The counsel for Defendants drew the attention of this court to the Article 59 of the Limitation Act and Sec. 31 of Specific Relief Act. It is submitted that for Declaration and Cancellation of the suits dealt with U/s.31 and 34 of Specific Relief Act must be filed within 3 years as per Sec. 59 of the
Limitation Act, but the suit which was filed after period of limitation is liable to be dismissed. In support of his submission, he filed decision reported in 1999 (6) ALD 20 between Habeeba Begum and another v. Gulam Rasool and others. Wherein it is also dealt with
Article 59 of Limitation Act inter-alia. It is held suit for cancellation of
Document to be filed within 3 years and if it is filed beyond three years, it is barred by limitation Under Article 59 of the Limitation Act. Other decision also filed reported in 2010 S.C 211 between Abdul
Raheem v. Sk.Abdul Zabber and others. Wherein it is also dealt with Article 59 of Limitation Act inter-alia. It is held a Suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Articles 59 of Limitation Act and suit is to be filed within period of three years from the date of knowledge that the transaction is 20 void or voidable. By submitting the above decisions on behalf of the
Defendants it is submitted that the plaintif though he knows that the partition deed is nominal, but failed to cancel the same even after long time and though the plaintif knows that no right was accrued to his father under the above Deed, but without filing the suit within three years after period of more than 15 years, the plaintif came forward with the present suit and on that ground the suit is liable to be dismissed. In this case the plaintif alleges under Ex.A5 is nominal and contended that the schedule property is property of his mother. When his father has not inherited or succeeded the property of his mother, the said partition is not a document under eye of law. Hence, filing suit for Declaration or for
Cancellation of the said partition deed does not arise and hence, the plaintif not filed the suit within time and barred by limitation under
Article 59 of Limitation Act does not apply to the present case.
26. The plaintif filed the suit alleging that her mother constructed a house in the schedule property after purchasing the same and same was given for rents and after her death, his father brought the Defendants and made them to stay in the schedule property and subsequent to the death of his father, he permitted them to stay , but taking advantage of his absence , the Defendants demolished the building without any right and when questioned by the plaintif, the Defendants gave evasive replies. Hence, he constrained to file the suit. Until the above demand, there is no refusal on the part of the Defendants about the right of the plaintif and he filed suit on issuing notice under original of Ex.A6 and on that ground also the suit is within time.
27. It is an admitted fact that during the life time of Subbarao he filed suit O.S.75/01 on the file of PJCJ, Narasaraopet for recovery of amount basing on a pronote. He died during pendency of the said suit and the 21 plaintif and Defendants are added as L.Rs in the said suit. The Decree and Copy of the Judgment are also filed as Ex.A9 and Ex.A.10. The copy of affidavit and petition U/o.22 R.3 CPC in I.A. 230/02 in the above suit
O.S.No. 75/01 is also filed as Ex.A.8. D.w.1 admitted in her evidence that
on filing the petition by the plaintif to give the entire decretal amount to the Defendants , they recovered the decretal amount. In another case one B.Nageswararao was indebted to said Subbarao under Mortgage and same was compromised and when the entire amount was recovered by
D.1, the plaintif filed the suit O.S.65/13 and recovered the share of plaintif collected by D.1 and the said suit was decreed in favour of plaintif as per the copy of decree and judgment in the above suit as
Ex.A11 and Ex.A.12. The plaintif got right to recover the above amounts as son of the said Subbarao who got right to inherit his property from the property of Subbarao as illegitimate son, but the case of inheritance from Mangamma to Subbarao is unknown to law as their marriage is not lawful marriage.
28. The Defendants made contention that the plaintif and themselves came to an understanding for enjoyment of property and executed family arrangement and understanding on 2-2-2002 confirming their rights with reference to the documents and the plaintif has taken over the original document to submit the same in Bank as security for obtaining loan. D.1 as absolute owner gifted the property to D.2. Though it is the contention of the Defendants that plaintif and themselves under
Ex.B2 family arrangement confirmed their rights, but as discussed in
Issue No.3 the said Subbarao has no right to enter into partition deed and he will not get any right under the Partition Deed. Hence, Ex.B.2 is not valid.
22
29. The Defendants also contended that Subbarao executed a Will
Ex.B.9 bequeathing the schedule to D.1 who is first wife and she became absolute owner of schedule property after the death of Subbarao and
Will is true and valid, but as discussed in Issue No.3 said Subbarao is not legally wedded husband of Mangamma and question of inheritance of property from Mangamma does not arise and when the partition deed is not valid , the Will Ex.B.9 automatically is not valid as the genesis for the
Will is Partition Deed. Though on behalf of the Defendants in order to prove the Will examined D.ws.2 and 3 who are the attestors of the Will who stated that in their presence the Will transaction under Ex.B.9 dt.14-6-2001 took place and Subbarao bequeathed properties to D.1 as wife, but when the said Subbarao has no right over the property covered under the Will, execution of Will and bequeathing the property to D.1 does not arise and the said Will is not true and valid.
30. The Defendants contended that after partition deed, the name of Subbarao was mutated in the revenue records and subsequently after execution of the Gift Deed in favour of D.2 by D.1, D.2 got his name mutated and he is in possession and enjoyment . In order to prove the same, on behalf of the Defendants filed Ex. B1 Receipt for obtaining Gas connection dt. 7-6-2000 which is in the name of Subbarao. Ex.B.3 to
Ex.B.8 are also filed to show that they paid house tax and water tax on mutating their names. Ex.B.10 is the plan. Ex.B.13, 15 and Ex.B.16 filed to show that D.2 paid Tax being absolute owner. Mere payment of revenue to the Municipality will not confer any rights. The Defendants have to establish that Subbarao having inherited the property from
Mangamma entered into partition deed and having right , he executed
Will Ex.B.9 in favour of D.1 and D.1 got right to execute Ex.B.17 Gift
Deed in favour of D.2. But as discussed in Issue No.3, said Subbarao has 23 no right to inherit or succeed the properties of Mangamma. Hence, the contention of the Defendants that having right during the life time of
Subbarao , they are in possession and enjoyment and subsequently by
D.2 is not correct. In view of the above, the plaintif able to establish that he is entitled for Declaration of right and title over the suit schedule property. The issue is held in favour of plaintif.
31. ISSUE No. 6 : -
The plaintif filed the suit seeking the relief of mesen profits also alleging that during the life time of his father , he made arrangement in order to bring the Defendants from Chilakaluripet, permitted them to stay in the schedule property . Later after the death of his father, he permitted the Defendants to live in the schedule property, but in recent times the Defendants by giving evasive replies demolished the building in the schedule property and they are liable to pay mesne profits. But the plaintif did not adduce any evidence in respect of the same except seeking relief . The schedule building was demolished even as per the case of the plaintif. In the circumstances fetching income on the schedule property does not arise. Hence, it is held the plaintif is not entitled for mesne profits. The issue is held against the plaintif.
32. Issue No.5 :-
The plaintif filed the suit alleging that her mother constructed a house in the schedule property after purchasing the same and same was given for rents and after her death, his father brought the Defendants and made them to stay in the schedule property and subsequent to the death of his father, he permitted them to stay , but taking advantage of his absence , the Defendants demolished the building without any right and when questioned by the plaintif, the Defendants gave evasive replies. The plaintif sought Rs.3,00,000/- towards damages alleging that 24 the demolished building values at Rs.3,00,000/-. Except making such allegation in the plaint and in his evidence, he did not choose to file any estimation from the expert that the cost of the demolished building will be Rs.3,00,000/- and he sustained loss to that extent. Without adducing evidence in respect of same, this court declined to grantt such relief.
Hence, the issue is answered against the plaintif.
33. Issue NO.7:-
As Issue Nos.1, 3 and 4 are held in favour of Plaintif, the suit is to be decreed partly with costs declaring the title of the schedule property in favour of the plaintif after holding that the partition deed
Dt.18-5-1996 is only a nominal one and does not confer any rights on
Atmakuri Subbarao and consequential recovery of possession giving three months time to vacate the Defendants from the schedule property.
The suit in respect of mesne profits and recovery of damages is liable to be dismissed.
34. In the result, suit is partly decreed with costs declaring the title of the schedule property in favour of the plaintif after holding that the partition deed Dt.18-5-1996 is only a nominal one and does not confer any rights on Atmakuri Subbarao and consequential recovery of possession giving three months time to vacate the Defendants from the schedule property. The suit in respect of mesne profits and recovery of damages is dismissed.
Typed to my dictation to the Stenographer Gr-II, corrected and
pronounced by me in the open court on this 15th day of September, 2017.
PRL. SENIOR CIVIL JUDGE,
NARASARAOPET.
APPENDIX OF EVIDENCE
25
WITNESSES EXAMINED
For Plaintif:- P.w.1 : Atmakuri Pitchaiah. P.w.2 : Gangavarapu Venkateswarlu. P.w.3 : Kondramutla Poornachandrarao. For Defendants:- D.w.1 : Atmakuri Dhanalakshmi. D.w.2 : Dinthakurthi Jagannadharao. D.w.3 : Veluguri Venkata Ratnam.
DOCUMENTS MARKED
For Plaintif: Ex.A1: Registered Sale Deed Dt. 11-4-1984. Ex.A2 : Registered Sale Deed Dt. 12-4-1984. Ex.A3 : Registered Sale Deed Dt. 2-3-1987. Ex.A4 : Xerox Copy of Unregistered Will Dt. 18-11-1993. Ex.A5 : Registered Partition Deed Dt.18-5-1996. Ex.A6 : O/c. Of Registered Legal Notice Dt. 2-2-2013. Ex.A7 : Reply Notice Dt. 15-2-2013. Ex.A8 : C/c of Affidavit and Petition in I.A.No.230/02 in O.S.No.72/01 on the file of PDM, Nrt. . Ex.A9 & Ex.A10 Judgment & Decree Dt. 12-12-2002 in O.S.No.72/01 on the file of PDM, Nrt. Ex.A11 Copy of Decree in O.S.No.62/2013 on the file of PDM,Nrt. Ex.A12 Copy of Judgment in O.S.No.62/2013 on the file of PDM,Nrt..
For Defendants:- Ex.B.1 GAS Receipt of Sri Lakshmi Agencies Dt. 7-6-2000. Ex.B.2 Understanding Agreement in between Plaintif and Defendants Dt.2-2-2002. Ex.B.3 Property Demand Notices(4) in the name of D.2. Ex.B.4 House Tax Receipts in the name of late A.Subbarao. Ex.B.5 Water Tax Receipts in the name of D.2. Ex.B.6 Water Tax Demand Notices and Receipts (2) in the name of late A.Subbarao. Ex.B.7 Water Tax Demand Notice and Receipts in the name of Hanumantharao in the house situated at Srirampuram and in her name. Ex.B.8 Receipts of payment of House Tax (2) in the name of D.2. Ex.B.9 Will Dt. 14-6-2001 executed by late A.Subbarao. Ex.B.10Plan showing the existing physical features of the plaint schedule and the property of Plaintif. Ex.B.11Photographs along with CD relating to suit schedule property. Ex.B.12C/c of Registered Sale Deed Dt. 4-7-1994. Ex.B.13Water Tax Receipt Dt. 4-2-2003 in the name of late A.Subbarao. Ex.B.14Electricity Bill stands in the name of D.1. Ex.B.15Photos of the property of the plaintif two in number. Ex.B.16Receipt for payment of Tax stands in the name of D.2. Ex.B.17Registered Gift Deed Dt.12-7-2005 executed by D1 infavourof D.2
PSCJ, Nrt.
26
IN THE COURT OF THE PRL. SENIOR CIVIL JUDGE ::
NARASARAOPET.
PRESENT: Smt. A.Lakshmi, B.Com., B.L., Prl. Senior Civil Judge, Narasaraopet. Friday, this the 15th day of September, 2017
O.S. No. 131 / 2013
Between:- Atmakuri Pitchaiah s/o. Late Subbarao, Hindu, Aged about 38 yrs., Business, r/o. Door No. 1-2-54, JKC Nagar, Guntur, Guntur JCJC., ...Plaintif
And
1.Atmakuri Dhana Lakshmi w/o. Late Subbarao, Hindu, Aged about 51 yrs., House Wife, R/o.door No.12-19-11/2, In thehouse of Arvapalli Radha Krishna, Near Deepthi School, 60 feet road, Prakash Nagar, Narasaraopet Town
& JCJC.,
2.Atmakuri Rajendra Prasad s/o. Late subbarao, Hindu, aged about 26 yrs., Private Employee, R/o.Door No.12-19-11/2, In the house of Arvapalli Radha Krishna, Near Deepthi School, 60 feet road, Prakash Nagar, Narasaraopet Town
& JCJC.,
2.Atmakuri Lakshmi Bhavani s/o. Late subbarao, Hindu, aged about 30 yrs., Mother’s Protection, R/o.Door No.12-19-11/2, In the house of Arvapalli Radha Krishna, Near Deepthi School, 60 feet road, Prakash Nagar, Narasaraopet Town
& JCJC.,
...Defendants.
The Suit is filed by the Plaintif for declaration of right and title of the Plaintif over the Suit Schedule Property by holding that the Partition Deed dt.18-5-1996 is nominal one and does not confer any rights on Atmakuri Subbarao and for consequential recovery of vacant possession of the same and for mesne profits and for recovery of Rs.3,00,000/- towards damages for illegal demolition of the building in the suit schedule property.
Plaint presented on 12-03-2013 Plaint filed on 13-03-2013
CAUSE OF ACTION for the suit arose when late Mangamma purchased the schedule property and constructed two houses and executed her last Will and testament on 18-11-1993 bequeathing her entire property including the schedule property to the plaintif and when she passed away on 16-9-1994 when the will has come into force and the plaintif become absolute owner of the property and on 18-5-1996 when late Atmakuri Subbarao prevailed upon the plaintif and made him to enter into a registered partition deed and when Subbarao permitted by the plaintif to live in the house in the schedule property along with Defendants and when Subbarao died and a few days ago when the defendants pulled down the house in the schedule property and caused loss to a tune of Rs.3,00,000/- rendering themselves liable to pay damages and on 2-2-2013 when the plaintif got issued a notice to the 27 defendants and when the defendants sent a reply on 15-2-2013 and at Narasaraopet where the schedule property is situated is within the jurisdiction of this court.
Valuation: This being a suit for Declaration and consequential recovery of possession , the relief is valued U/s.24(a) of APCF & SV Act at Rs.4,32,300/- being 3/4th value of the same is Rs.5,76,400/-, on which a Court Fee of Rs.6,826/- is paid.
This being a suit for damages, the plaintif valued the same is Rs.3,00,000/- on which a court fee of Rs.5,426/- is paid u/s. 20 of APCF & SV Act.
Value of the suit for the purpose of jurisdiction is same as above.
The suit is coming before me on 28-08-2017 for final hearing in the presence of Sri. N. Lakshmi Narayana, advocate for the plaintif and of Sri. S. Ayyapa Raju, advocate for Defendants and upon hearing the arguments and perusing the material on record and having stood over for consideration till this day, this courtdoth order and decree:
1. That the suit be and the same is partly decreed; and
2. That declaring the title of the schedule property in favour of the plaintif after holding that the Partition Deed dated 18-5- 1996 is only a nominal one and does not confer any rights on Atmakuri Subbarao; and
3. That granted consequential recovery of possession giving three months time to vacate the Defendants from the schedule property;and
4. That the suit in respect of mesne profits and recovery of damages is hereby dismissed; and
5. That the defendants do pay to the plaintif a sum of Rs.35,994/- towards costs of the suit and do bear their own costs of Rs.15,042/-; (copy of plaint schedule is attached hereto)
Given under my hand and seal of the court, this the 15th day of September, 2017.
PRL. SENIOR CIVIL JUDGE
NARASARAOPET.
TABLE OF COSTS
For Description For Plaintif For Defendants Vakalat 2-00 2-00 Plaint Fee12252-00 -- Pleaders Fee23700-0015000-00 Process-- -- Publication charges -- -- Writing Charges20-00 20-00 Typing Charges20-00 20-00 Total35994-00 15042-00
P.S.C.J., NRT.
28