1
IN THE COURT OF JUNIOR CIVIL JUDGE: KALYANDURG
PRESENT:Sri B.APPALA SWAMY Junior Civil Judge, Rayadurg FAC to Junior Civil Judge, Kalyandurgam
Friday, the 9th day of March, 2018.
ORIGINAL SUIT No.78/2008
Between:-
1. H.Lakshminarayana S/o Ramanjineyulu, Hindu, aged 22 years, Cultivation,
2. H.Parameswarappa, So Ramanjineyelu. Hindu, aged 22 years,
Both are R/o Theerakallu village, Bramhasamudram Mandal.
(Originally the suit was filed by H.Jayamma who is mother of the plaintiffs and she was discharged from guardianship as both plaintiffs declared as majors as per orders in I.A.No.154/2013 dated 7-6-2013 and in I.A.No.240/2014
dated 24-6-2014).
…. Plaintiffs
Vs
1. Bobburi Meenakshamma, W/o Venkataswamy, aged about 52 years, Hindu, Cultivation,
2. Harijana Ramanjineyulu, S/o Chadive Kollappa, aged about 48 years, Hindu, cultivation.
Both are residents of Theetakallu village, Brahasamudram Mandal. … Defendants
This suit is came up before me on 2-2-2018 for final hearing in the presence of Sri.K.Thippeswamy, Advocate for the plaintiffs and Sri V.Krishna Murthy, Advocate for the 1st defendant and 2nd defendant remained exparte, this matter having been stood over for consideration till this day , this court delivered the following :- // J U D G M E N T //
1. This suit is filed for Declaration of the title and possession of the schedule mentioned property and for cancellation of the decree dated 28-1-2002 passed by learned the Junior Civil Judge, Kalyandurg and at the same time for cancel the sale deed dated 25-4-2007 executed by Junior Civil Judge, Kalyandurg, relief for mesne profits of Rs.900/- per year from the date of possession and for costs.
2.The case of the plaintiffs as per the plaint in brief is that:
The plaint schedule property bearing Survey No.184 and 185 are belongs to plaintiffs grandfather late Chadive Kollappa. These properties are self- acquired properties of Chadive Kollappa and they are not the ancestral properties.
He got one son H.Ramanjineyulu (defendant No.2) only. He got married with
Jayamma i.e., plaintiffs mother. The said Ramanjineyulu (defendant No.2) is not looking after the welfare of the family, he is habituated for drinking , playing matka and addicted to debachelor life. He was not changed his way of life after the birth 2 of plaintiffs i.e., his sons 1. Lakshminarayana 2. Parameswarappa leaded way word life. Hence Chadive Kollappa has taken the responsibility and welfare of his grand sons (plaintiffs) and also his daughter-in-law looking after their welfare. Hence the grandfather of plaintiffs by name Chadive Kollappa has an abundant to safe guard the interest of his grand sons for their welfare, he is in good state of mind he voluntarily executed a registered Will on 18-5-1994 in favour of the plaintiffs keeping their mother Jayamma as natural guardian and that after his death the above Survey Nos.184 and 185 including the suit schedule property has to be bequeathed upon the plaintiffs. Since 1994 the said Jayamma has taken possession of the schedule property and lands in Survey No.184 and 185 and raising crops and maintaining the family.
The said Chadive Kollappa died on 3-8-1998. Hence the plaintiffs have bequeathed the properties of Chadive Kollappa i.e., Survey Nos.184 and 185 including the plaint schedule property. The defendant No.2 knowing about the Will, he secures the relationship from his family members and living separately. He is having blood relationship only and not having any business transaction. Hence defendant No.2 has no right, title, interest in the properties of his father Late
Chadive Kollappa in Survey No.184 and 185 including plaint schedule property as they are self acquired properties of Chadive Kollappa.
The Ramanjineyulu for his bad habits for illegal gain for himself he has executed an agreement of sale on 1-8-1996 regarding the plaint schedule property for Rs.75,000/- in favour of 1st defendant. The 1st defendant and 2nd defendant colluded together knowing very well regarding the registered Will dated 18-5-1994 as said above entered into sale agreement as said above. The said sale agreement is neither for legal necessity nor for the benefit of minor sons (plaintiffs estate). The plaintiffs father has no right and he is not a guardian to his sons as per Will and not competent to dispossess or sell the absolute property of the minor plaintiffs.
Direction by the 2nd defendant who is not guardian and who has no title and interest in plaint schedule property belongs to minors is not valid and not binding on the minor plaintiffs. The said sale transaction between 1st defendant and 2nd defendant is invalid and not binding on the minor plaintiffs U/s.11 of Hindu Minority and
Guardianship Act, 1956 even if it is benefited to the interest of the minors and the alienation cannot be justified on the ground that it is the benefit of the minor plaintiffs.
3
The 1st defendant and 2nd defendant colluded together and executed an agreement of sale dated 1-8-1996 in between them and formally suit was filed purposely by 1st defendant for specific performance of the said sale agreement
dated 1-8-1996 and the suit was numbered as O.S.No.164/1999 on the file of this
court. The 2nd defendant having received summons after engaging an Advocate has not contested as per mutual understandings between 1st defendant and 2nd defendant. The suit was decreed on 28-1-2002 exparte. The 1st defendant who is plaintiff in O.S.No.164/1999 has filed E.P. This court has executed sale deed in favour of 1st defendant regarding the plaint schedule property and the same was delivered in view of the sale deed executed by this court.
The plaintiffs are not made parties in the suit. They came to know the decree proceedings of O.S.No.164/1999 only when the Amin delivered the plaint schedule property as said above. The 2nd defendant was not to be seen whereabouts not be heard since 7 years. Hence there is no opportunity for the plaintiffs to enquire about.
Since the sale deed executed by this court is in respect of the plaint schedule property in favour of the 1st defendant is totally void under law and that the minor plaintiffs are entitled for possession of the plaint schedule property. The 1st defendant to be in wrongful possession of the schedule mentioned property. The 1st defendant is in possession of trespassing who has no right in schedule mentioned property. Hence the suit for possession of the schedule mentioned property and for consequential declaration that the sale deed in favour of 1st defendant is void.
Since the sale deed executed by this court in respect of plaint schedule property in favour of 1st defendant is totally void under law and minor plaintiffs entitled for possession of the property and the 1st defendant is demanded to be in wrongful possession of schedule mentioned property. Hence the plaintiffs are entitled to claim mesne profits from the date of suit till the date of delivery of possession of the schedule mentioned property. Hence the suit.
3. The 2nd defendant called absent and remained exparte on 18-12-2008. The 1st defendant filed written statement by denying the averments of the plaint.
The plaint schedule properties bearing Survey Nos.184 and 185 are not belong to plaintiffs grandfather Late Chadive Kollappa. The suit schedule property is not the self-acquired properties of Chadive Kollappa. The suit schedule property is the ancestral property of Harijana Kollappa.
4
The first defendant admitted that, the 2nd defendant Harijana Ramanjineyulu is the son of H.Kollappa. The 2nd defendant has married Jayamma who is the mother of plaintiffs .
The first defendant denied that the 2nd defendant Ramanjineyulu is not looking after the welfare of the family and he is habituated for drinking, playing mataka and addicted to debatuler life and he was not changed his way of life after the birth of plaintiffs 1 and 2. The 2nd defendant H.Ramanjineyulu never lived or spent his life as wayward life.
The plaintiffs grandfather Chadive Kollappa has not taken the responsibility of his grand sons i.e., the plaintiffs and also his daughter-in-law Jayamma. The said
H.Kollappa was died before the birth of the plaintiff Nos.1 and 2.
The first defendant further denied that the said Chadive Kollappa has become old and Jayamma daughter-in-law never looking after his welfare and hence the grandfather Chadive Kollappa has an abondent to safe guard the interest of his grand sons for their welfare and he is in good state of mind he voluntarily executed a registered Will on 18-5-1994 in favour of the plaintiffs keeping their mother
Jayamma as natural guardian and after his death the above Survey Nos.184 and 185 including the suit property has to be bequeathed upon the plaintiffs, the said
Chadive Kollappa has not at all executed any registered Will on 18-5-1994 regarding
Survey Nos.184 and 185 in favour of the plaintiffs are false. The registered Will is created, fabricated, forged and got up for the purpose of this suit to harass this defendant.
The said Chadive Kollappa was died before the birth of the plaintiffs. The
H.Kollappa who is father of the 2nd defendant was died without partition as a Hindu
Joint family member without bequeathing the properties in anybody’s favour. After the death of H.Kollappa the entire family properties are fell to the 2nd defendant and he was the manager to his family. The 2nd defendant is only son to his father
H.Kollappa. So the 2nd defendant was absolute owner to Survey Nos.184 and 185 and he has got absolute right, title, interest, possession and enjoyment over the suit schedule property. The 2nd defendant is the manager of the family has got absolute right to alienate the property to his necessities, to his family expenses and to his agricultural expenses. H.Kollappa never executed a registered Will on 18-5- 1994 and the mother of the plaintiff’s Jayamma never stood as guardian.
5
The first defendant further denied that Since 1994 the said Jayamma has taken possession of the schedule property and Survey Nos.184 and 185 and raising corps and maintaining the family.
The Jayamma never taken possession of the properties and she never raised any crops and she never maintained the family. In fact the 2nd defendant as a manager of the family and owner of the properties was in possession and enjoyment of the entire family properties and he used to raise the crops and he used to maintain the family and that the said Chadive Kollappa was died on 3- 8-1998 and hence the plaintiffs have bequeathed the properties of Chadive Kollappa i.e., Survey Nos.184 and 185 including the plaint schedule property and the 2nd defendant knowing about the Will he served the relationship from his family members and living separately and he is having blood relationship only and not having any business transactions. The death certificated is created, fabrication, forged and got up for the purpose of this suit.
The 2nd defendant has no right, title, interest in the properties of his father Late Chadive Kollappa in Survey Nos.184 and 185 including the plaint schedule property, as they are the self-acquired properties of C.Kollappa is false.
The Survey Nos.184 and 185 including the plaint schedule property are not the self-acquired properties of C.Kollappa. The 2nd defendant has got absolute right, title, interest, possession and enjoyment over the Survey Nos.184 and 185 including the plaint schedule property.
The 2nd defendant has executed an agreement of sale on 1-8-1996 regarding the suit schedule property for Rs.75,000/- in favour of the 1st defendant and received a cash consideration of Rs.30,000/- on the same day for his necessities for his family expenses and for his agricultural expenses and he never sold it for his bad habits for illegal gain for himself. In fact the 2nd defendant has no bad habits.
The 2nd defendant never colluded together and they were not known very well regarding the registered Will dated 18-5-1994 as it was not existing on 1-8- 1996. The 2nd defendant was hardly contested the suit O.S.No.164/1999 on the file of this court, Kalyandurg filed by the 1st defendant for specific performance of agreement of sale dated 1-8-1996 and the said suit was decree on merits. The said sale agreement was executed by the 2nd defendant for legal necessity for his family expenses.
6
Neither the minor nor the guardian have not taken any steps or legal action against the agreement of sale dated 1-8-1996 as such this suit is barred by limitation.
The 2nd defendant was the manager of the family and his alienations and his transactions are binding on his family members. The 2nd defendant has got every right to alienate the family properties for his family necessities. The suit schedule property is not the minor’s property. They have no right to question the sale of the 2nd defendant. The agreement of sale dated 1-8-1996 is binding on the family members of the 2nd defendant. The said sale transactions between 1st and 2nd defendants are valid and binding on the plaintiffs.
The 1st defendant and 2nd defendant never colluded together and the suit
O.S.No.164/1999 was not filed forcibly by the 1st defendant. The 2nd defendant has
contested the suit and filed his written statement and deposed as DW.1 and he also examined his witness. There are no mutual understandings between 1st and 2nd defendants. The suit O.S.No.164/1999 decreed on merits and exparte decree was not passed.
The 2nd defendant Jayamma was filed a petition on behalf of her minor sons i.e., the present plaintiffs to implied them as parties in O.S.No.164/1999 and the said petition was dismissed and the revision filed by Jayamma before the Hon’ble
High Court of Andhra Pradesh was dismissed as such the present suit is barred by limitation.
The 1st defendant who is the plaintiff in O.S.No.164/1999 has filed an E.P. and the Hon’ble Court was executed the registered sale deed in favour of 1st defendant regarding suit schedule property and the same was delivered in view of the register sale deed executed by this court.
The plaintiffs are not proper and necessary parties in the suit. So they were not made as parties in O.S.No.164/1999. The plaintiffs came to know the decree proceedings in O.S.No.164/1999 only when the Amin delivered the suit schedule property and the 2nd defendant was not to be seen where about and not be heard since 7 years and there is no opportunity for the plaintiffs to enquiry is false.
The plaintiffs have filed a petition to implead them as parties in the suit and the said petition was dismissed and the revision petition also be dismissed by the 7
Hon’ble High Court of Andhra Pradesh. The 2nd defendant also be present in the
village when the Amin delivered the plaint schedule property. The 2nd defendant never left the village and he is always available in the village and he is behind the litigation and he filed this suit through his sons and he also received the summons in E.P. and contested the matter.
The sale deed executed by the Hon’ble Court in respect of the suit schedule property in favour of 1st defendant is a valid document under law. The minor plaintiffs are not entitled for possession of the plaint schedule property. The 1st defendant is not in wrongful possession of the suit schedule mentioned property.
The 1st defendant is in possession and enjoyment of the suit schedule property. The 1st defendant has got absolute right, title, interest, possession and enjoyment over the plaint schedule property. The plaintiffs are not entitled for possession of the property. The plaintiffs are not entitled to claim any mense profits from the date of the suit till the date of deliver of the suit schedule mentioned property.
4. Basing on the above rival pleadings, the following issues were settled for trial.
1. Whether the plaint schedule property is the self-acquired properties of one Chadive Kollappa who is the grandfather of plaintiffs?
2. Whether Late Chadive Kollappa had executed a registered Will dated 18-5-1994 during his life in respect of plaint schedule property and some other properties in favour of plaintiffs?
3. Whether said Will is come into force after the death of executants Kollappa as alleged by the plaintiffs?
4. Whether the decree in O.S.164/1999 on the file of Junior Civil Judge’s Court which is in favour of the 1stdefendant in respect of the plaint schedule property, is liable for cancellation?
5. Whether the sale deed dated 25-4-2007 executed by this court infavour of the 1stdefendant, on behalf of 2nddefendant in respect of the plaint schedule property is liable by set aside as alleged by the plaintiffs?
6. Whether the plaintiffs are entitled for the relief of declaration of title in respect of plaint schedule properties?
7. To what relief?
8
5. On behalf of plaintiffs, PW.1 to 4 examined and got marked Ex.A1 to Ex.A3.
The chief examination affidavit of PW.5 was eschewed. On behalf of defendants,
DW.1 and 2 examined and got marked Ex.B1 to B6.
6. Heard arguments of learned counsels for both parties. Perused the written arguments filed by the learned counsel for plaintiffs and the learned counsel for first defendant.
7. Issue No.1:-
Whether the plaint schedule property is the self-acquired properties of one Chadive Kollappa who is the grandfather of plaintiffs?
As seen from the evidence of PW.1 that the suit schedule property an extent of
Ac.5-00 out of Ac.13-20 cents in Survey No.185-E of Theetakallu village of
Bramhasamudram Mandal bounded by East: The remaining land in the same Survey number, West: Sri Anjaneyaswamy land, North: The remaining land in the same
Survey number and South: Land of Vannurappa is the self-acquired property of Late
Chadive Kollappa. The said Kollappa had one son by name Ramanjineyulu who is the 2nd defendant herein. The 2nd defendant got married with Jayamma who is mother of the plaintiffs. The 2nd defendant not looking after the family and he habituated for drinking, playing matka and addicted womanizing life and he did not change his attitude even after birth of the plaintiffs. The plaintiffs are leading wayward life, hence their grandfather Chadive Kollappa has taken responsibility and welfare of the plaintiffs and their mother Jayamma and he voluntarily executed
Ex.A.1 registered Will dated 18-5-1994 in sound disposal of state of mind in favour of plaintiffs by keeping their mother Jayamma as minor guardian. After death of
Kollappa the suit schedule property devolved upon Jayamma who is minor guardian of the plaintiffs and she has been in possession and enjoyment of the suit schedule land by raising crops and their mother Jayamma looking after the said land on behalf of the plaintiffs. During cross examination PW.1 stated that he do not know whether the suit schedule property was sub-divisioned and he do not know the total extent of land in suit survey number and further stated in cross-examination he cannot say from whom his grandfather purchased the suit schedule property and that he did not produce any documents to show that the suit schedule property is belongs to his paternal grandfather. PW.2 who is mother of PW.1 also deposed that the suit schedule property is self-acquired property of Chadive Kollappa and he got
H.Ramanjineyulu as only son and that she married Ramanjineyulu and begotten the 9 plaintiffs. During cross examination PW.1 and 2 admitted that they do not know from whom Kollappa purchased the suit schedule property.
8. The contention of the defendants is that the suit schedule property is ancestral property of the 2nd defendant and it is not self acquired property of
Chadive Kollappa. As seen from the evidence of DW.1 who is the 1st defendant herein that the suit schedule property is not self acquired property of Kollappa and that Kollappa died before birth of plaintiffs and he never executed Ex.A.1 registered
Will dated 18-5-1994 and that the land in Survey No.184 an extent of Ac.4-20 cents and the land an extent of Ac.8-75 cents in Survey No.185 was not bequeathed in favour of the plaintiffs by keeping Jayamma as a minor guardian and he never executed the Will in a sound disposal state of mind. DW.2 also supported the evidence of DW.1 that the suit schedule property belongs to 2nd defendant’s grandfather namely Chakari Peddodu @ Harijana Peddanna and his brothers namely
Chakari Bheemudu @ Harijana Bheemudu and that the said Harijana Bheemudu died leaving behind him, his 3 sons (1) H.Anjinappa (2) H.Hanumappa (3) H.Kollappa @ Chadive Kollappa without partition. The three sons of Harijana Peddanna partitioned the suit schedule survey number property and another survey number property in to three equal share. The 2nd defendant is the only son to H.Kollappa and that after death of his wife Kollappa became mad and he left the village and he whereabouts not known to anybody, the 2nd defendant married Jayamma and the
Kollappa did not see the plaintiffs and never looked after Jayamma and plaintiffs.
9. The plaintiffs did not file any documents to show that the suit schedule property is self acquired property of Chadive Kollappa. Though Ex.A.1 reveals about description of the suit schedule property, but there is no documentary evidence to show that how the executant of Ex.A.1 got the properties covered under Ex.A1. If the properties covered under Ex.A1 are not self-acquired properties of Chadive
Kollappa he has no right to execute Will in favour of the plaintiffs by ignoring the second defendant who got right over the properties under Ex A1 which are treated ancestral properties.
10. As per the contention of the first defendant that the 2nd defendant sold the suit schedule property to him under agreement of sale dated 1-8-1996 and he filed suit in O.S.No.164/1999 and the same was decreed, basing on the decree in
O.S.No.164/1999, the 1st defendant filed Execution Petition and the Hon’ble Court
executed Registered sale deed in favour of 1st defendant regarding the suit schedule 10 property and the same was delivered to him through the Hon’ble Court on execution of decree. The contention of the first defendant is that the suit schedule property is ancestral properties of 2nd defendant and the suit schedule property fallen to the share of father of 2nd defendant and the 2nd defendant executed agreement of sale in favour of the 1st defendant. The contention of the plaintiffs is that they do not know about the passing of the decree by the Hon'ble Court in OS.No.164/1999 and they got knowledge after deliver of property to the first defendant in execution of decree. But Ex.B6 reveals that mother of plaintiffs by name Jayamma filed
I.A.No.740/2000 in revision petition u/sec.115 of CPC on the file of Junior Civil Judge
Court Kalyandurgam and also filed Civil Revision petition No.2974 before the
Hon'ble High Court of Judicature Andhra Pradesh at Hyderabad. It shows that the
plaintiff's mother Jayamma got knowledge about the filing the suit in
OS.No.164/1999 during its pendency on the file of Junior Civil Judge's Court,
Kalyandurg. The plaintiffs did not file any other documents to show that the suit schedule property is self acquired property of their grandfather Chadive Kollappa.
The first defendant contending that the suit schedule property is ancestral property of second defendant and that second defendant got every manner of right, title and possession over the suit schedule property and he sold the same to him for valid consideration for family necessities and agriculture necessities being Kartha of joint family. The first defendant got marked certified copy of diaglot under Ex.B.1 for the land in Survey No.184 to an extent of Ac.10-80 cents issued by Sub-
Registrar, Kalyandurg and Ex.B.2 Certified copy of diaglot in Survey No.185 to an extent of Ac.39-70 cents issued by Sub-Registrar, Kalyandurg stands in the name of
Chakari Peddodu and Chakari Bheemudu. Ex.B.3 Mee seva copy of 1-B Namuna,
Mee seva copy of adangal for the fasli No.1425 reveals that the land in Survey
No.185-E to an extent of Ac.5-00 stands in the name of 1st defendant. It is admitted fact that one C.Peddodu is grand father of second defendant. Ex.B1 and B2 reveals that the land in sy.No.184 and 185 are ancestral properties of the second defendant.
Therefore the documents filed by the 1st defendant reveals that she purchased the suit schedule property from 2nd defendant under agreement of sale and she obtained regular sale deed through court of law as per the decree in
O.S.No.164/1999. The plaintiffs did not filed any documentary evidence to show
that the suit schedule property is self acquired property of Chadive Kollappa.
Accordingly Issue No.1 is answered. Against plaintiffs 11
11. Issue No.2:-
Whether Late Chadive Kollappa had executed a registered Will dated 18-5-1994 during his life in respect of plaint schedule property and some other properties in favour of plaintiffs?
As seen from the evidence of PW1 and 2 that the second defendant who is father of the plaintiffs habituated for drinking, paying Matka and addicted debatural life and not changed his life even after birth of plaintiffs. The plaintiffs are leading wayward life , hence their grandfather, the Late Chadive Kollappa has executed registered Will dated 18-5-1994 during his life time in respect of the suit schedule property and some other properties in favour of plaintiffs by keeping Jayamma who is mother of plaintiffs as guardian and that after death of Chadive Kollappa in the year 1994 the suit schedule property and other properties in survey number 184,- 185 has to bequeathed upon the plaintiffs and that since 1994 Jayamma had taken possession of the suit schedule property and the land in survey number 184 and 185 and raising crops and looking after the welfare of plaintiffs. Due to the blood relationship between the plaintiffs and Chadive Kollappa he executed Ex.A.1 Will in favour of plaintiffs.
12. PW.3 and 4 who are the attestors of Ex.A.1 also supported the evidence of
PW.1 and 2 about the execution of Ex.A.1 registered Will in favour of plaintiffs by keeping their mother Jayamma as natural guardian in a sound disposal state of mind and they attested the same. Whereas the 1st defendant contending that the plaint schedule property not belongs to Chadive Kollappa and it is not self acquired property of Kollappa and it is an ancestral property of Kollappa. The 2nd defendant’s father Chadive Kollappa died before the birth of plaintiffs and he never executed
Ex.A.1 registered Will in favour of plaintiffs by keeping their mother Jayamma as a guardian and that the said Chadive Kollappa has no right to execute the Will and that the said Will was created and fabricated and forged one and it was got up for the purpose of filing the suit after death of Chadive Kollappa. Though the defendants denied about the execution of Ex.A.1 by Kollappa, but the attestors of
Ex.A.1 categorically deposed about execution of Ex.A1 by Chadive Kollappa in a sound disposal state of mind. The plaintiffs did not file any document to show that
Chadive Kollappa got absolute right over the suit schedule property to execute will in favour of plaintiff. It is settled principles of law that no person can pass better title what he has. Though the plaintiffs proved about execution of Ex.A1 by 12
C.Kollappa but there is no evidence that the said properties covered under Ex.A1 are self acquired properties of C.Kollappa to execute will in favour of the plaintiffs by ignoring 2nd defendant who is only son of kollappa. Accordingly Issue No.2 is answered.
14. Issue No.3:-
Whether said Will is come into force after the death of executants Kollappa as alleged by the plaintiffs?
As seen from the evidence of PW.1 and 2 that Chadive Kollappa executed
Ex.A.1 registered Will dated 18-5-1994 in a sound disposal state of mind and the said Kollappa died on 3-8-1998. As per Ex.B.2 death certificate of Kollappa issued by Tahsildar, Bramhasamudram Mandal, Kollappa died on 3-8-1998. As per contention of the plaintiffs is that Jayamma who is the mother of plaintiffs became in possession of the suit schedule property from 1994 onwards and raising crops.
As per Ex.A.1 it was executed on 18-5-1994 and it will come into force only after death of the executants of Ex.A.1. As per Ex.B1 and B2 the land in Sy.No.184 and 185 are stands in the name of Chakari Peddodu who is grand father of the second defendant. The contention of the defendants is that Chadive Kollappa never executed Ex.A.1 and it was created and forged for the purpose of this suit and that the 2nd defendant executed an agreement of sale dated 1-8-1996 regarding the suit schedule property for a sale consideration of Rs.75,000/- in favour of 1st defendant after receiving advance sale consideration of Rs.30,000/- and that the 2nd defendant never sold the suit schedule property to the 1st defendant for his bad habits or for illegal gain for himself. The 2nd defendant contested the suit in O.S.No.164/1999 on the file of this court for specific performance of agreement of sale and on merits the suit was decreed. The suit schedule property is not the minors property and the sale transaction between 1st and 2nd defendants are binding on these plaintiffs. The contention of the plaintiffs is that the defendants N o.1 and 2 colluded together and the first defendant filed the suit and got exparte decree and obtained sale deed through Hon'ble court without knowledge of the plaintiffs or their guardian and that they came to know when the property was delivered to the first defendant in execution of decree in OS.No.164/1999. The first defendant got marked Ex.B5 which shows that H.Thimmappa was examined as DW2 in OS.No.164/1999 and he deposed that the suit schedule property is ancestral property of second defendant.
Ex.B6 reveals that mother of plaintiffs by name Jayamma filed I.A.No.740/2000 in 13 revision petition u/sec.115 of CPC on the file of Junior Civil Judge Court
Kalyandurgam and also filed Civil Revision petition No.2974 before the Hon'ble High
Court of Judicature Andhra pradesh at Hyderabad. It shows that the plaintiffs mother Jayamma got knowledge about the filing the suit in OS.No.164/1999 during its pendency before Junior Civil Judge's Court, Kalayandurg. The documents filed by the first defendant under Ex.B3 and Ex.B4 reveals that the first defendant is pattadar and anubavadar for the land an extent of Ac.5.00 cents in survey Number 185-E. Thee is no recital in Ex.A1 will how Chadevi Kollappa acquired the properties covered Ex.A1. The plaintiffs did not file any documentory evidence to show that the properties under Ex.A1 are self acquired properties of Chadevi Kollappa. Hence the second defendant being legal heir of Chadevi Kollappa got share in suit schedule property and he also right to dispose of property to the extent of his share.
The plaintiffs did not file any documents to show that after death of Chadive
Kollappa they became possession of the suit schedule property as contended by them. Accordingly Issue No.3 is answered.
15. Issue No.4:-
Whether the decree in O.S.164/1999 on the file of Junior Civil Judge’s Court which is in favour of the 1st defendant in respect of the plaint schedule properties, is liable for cancellation ?
As seen from the evidence of PW.1 and 2 that the suit schedule property is self acquired property of grandfather of plaintiffs by name Kollappa who executed
Ex.A.1 Will in favour of plaintiffs when the plaintiffs leading wayward life as the 2nd defendant addicted for bad voices and that the defendants No.1 and 2 colluded together and first defendant filed the suit in OS.No.164/1999 and obtained exparte decree and got sale deed through court and got delivery of the property through court. The 1st defendant contending that the 2nd defendant is absolute owner of suit schedule property and executed agreement of sale dated 1-8-1996 for a sale consideration of Rs.75,000/- and received advance sale consideration of Rs.30,000/- and that basing on agreement of sale he filed suit in O.S.No.164/1999 on the file of
Junior Civil Judge’s Court, Kalyandurg for specific performance of agreement of sale and that the suit was decreed on merits and that on filing Execution Petition the suit schedule property was delivered to the 1st defendant through court and that the 1st defendant is in absolute possession and enjoyment of the suit schedule property and that the plaintiffs were not born as on date of execution of agreement of sale by 14 second defendant and that the sale deed is binding on the plaintiffs. The contention of the plaintiffs is that the 2nd defendant sold away the suit schedule property for his bad vices and it is not for the welfare of the plaintiffs who are minors at the time of execution of Ex.A1 by Kollappa. The plaintiffs got marked Ex.A2 death certificate of
C.Kollappa issued by Tahsildar reveals that Kollappa died on 3.8.1998. Ex.A.3 birth certificate of first plaintiff issued by Head Master, M.P.U.P., School, Theetakal of
Bramhasamudram Mandal reveals that 1st defendant born on 1-7-1991 i.e., prior to execution of Ex.A.1. The plaintiffs did not file any document to show that as on
Ex.A.1 the 2nd plaintiff was born. The 1st defendant contending that as on execution of Ex.A.1 the plaintiffs were not born and that Kollappa never executed Ex.A.1 in favour of the plaintiffs by keeping Jayamma who is mother of plaintiffs as a legal guardian. Except Ex.A.1 the plaintiffs did not file any documentary evidence to show that the suit schedule properties are self acquired properties of Kollappa. The contention of the first defendant is that the suit schedule property is ancestral properties of grandfather of the plaintiffs and that after partition in between the brothers of grandfather of plaintiffs the suit schedule property was devolved on the 2nd defendant and the 2nd defendant executed agreement of sale in favour of 1st defendant for a sale consideration of Rs.75,000/- and that he obtained decree on merits in OS NO.164/1999 on the file of Junior Civil Judge's Court, Kalyandurg. As per Ex.B1 and B2 the properties covered in Sy.No.184 and 185 are stands in the name of Poddodu. It is admitted fact that the said Peddodu is grandfather of second defendant and great grandfather of plaintiffs . If the properties covered under Ex.B1 and B2 are ancestral properties of second defendant, the second defendant got right as a sharer over the said properties and the second defendant is at a liberty to sell properties to the extent of his share.
16. The 2nd defendant remained exparte at the stage of appearance and there is no evidence on behalf of 2nd defendant to show that the 1st defendant obtained agreement of sale from him by colluding with the 2nd defendant. The first defendant got marked Ex.B5 which shows that H.Thimmappa was examined as DW2 in
OS.No.164/1999 and deposed that the suit schedule properties is ancestral
property of second defendant . Ex.B6 reveals that mother of plaintiffs by name
Jayamma filed I.A.No.740/2000 in revision petition u/sec.115 of CPC on the file of
Junior Civil Judge Court Kalyandurgam and also filed Civil Revision petition No.2974
before the Hon'ble High Court of Judicature Andhra Pradesh at Hyderabad. It shows
15 that the plaintiffs mother Jayamma got knowledge about the filing the suit in
OS.No.164/1999 during pendency of suit.
17. Though the plaintiffs contending that the suit schedule property belongs to plaintiffs and the 2nd defendant is not entitled to execute any agreement of sale in favour of 1st defendant by defeating minor's interest, but there is no documentary evidence to show that the suit schedule property is self acquired property of
Chadevi Kollappa who is having exclusive right over the property to execute Ex.A1
Will. The plaintiffs did not file any documentary evidence to support their contention that the 1st defendant colluded with 2nd defendant and obtained decree.
The first defendant who examined as DW.1 categorically deposed that he obtained decree in OS NO.164/1999 on merits and the second defendant himself examined as DW.1 in the said suit. The first defendant also filed deposition of DW.2 in OS
No.164/1999 which was marked Ex.B5 which reveals that the suit in OS
NO.164/1999 was deposed on merits. The plaintiffs did not file the copy of judgment and decree in O.S.No.164/1999 on the file of Junior Civil Judge’s Court,
Kalyandurg to show that the first defendant obtained exparte decree by colluding with second defendant and that there are no bonafide grounds to prove the contention of the plaintiffs that the first defendant obtained exparte decree by colluding with second defendant, as contended by the plaintiffs for cancellation of the decree in O.S.No.164/1999. Accordingly Issue No.4 is answered.
18. Issue No.5:-
Whether the sale deed dated 25-4-2007 executed by this court in favour of the 1st defendant, on behalf of 2nd defendant in respect of the plaint schedule property is liable by set aside as alleged by the plaintiffs?
As seen from the evidence of PW.1 and 2 that the 1st defendant and 2nd defendant colluded together and second defendant executed agreement of sale
dated 1-8-1996 in between them and first defendant filed the suit purposefully for
specific performance of the sale agreement dated 1-8-1996 and the suit was numbered as O.S.No.164/1999 on the file of Junior Civil Judge’s Court, Kalyandurg and that 2nd defendant received summons and engaged counsel, but not contested the case as mutual understanding between defendant Nos.1 and 2 and the suit was decreed exparte on 28-11-2002 and that the 1st defendant who is plaintiff in
O.S.No.164/1999 filed Execution Petition and the Hon’ble Court executed sale deed
in favour of 1st defendant regarding the suit schedule property and the suit schedule 16 property was delivered in execution of decree. The plaintiffs came to know about decree in O.S.No.164/1999 only when the court Amin delivered the suit schedule property to the 1st defendant. The 2nd defendant was not to be seen whereabouts not known since 13 years, hence there is no opportunity for the plaintiffs to inquired about the same. The sale deed executed by this Hon’ble Court in respect of suit schedule property in favour of 1st defendant is totally void under law and they are entitle for possession of the suit schedule property and also entitled foe mesne profits.
19. As seen from the evidence of DW.1 and 2 that the father of 2nd defendant died without partition as Hindu Joint Family member and without bequeathing properties to the plaintiffs. The 2nd defendant is manager of the family after death of his father and he got absolute right to alienate the suit schedule property and that the 2nd defendant sold away the suit schedule property to the 1st defendant and executed agreement of sale dated 1-8-1996 for a sale consideration of Rs.75,000/- and received advance sale consideration of Rs.30,000/- on the same date for his family necessities and family expenses and agricultural expenses and the 2nd defendant never sold the suit schedule property for his bad habits and for illegal gain. The defendants never colluded each other and the 1st defendant contested the suit in O.S.No.164/1999 for specific performance of agreement of sale, hence the sale transaction between the defendant Nos.1 and 2 is binding on these plaintiffs. The mother of plaintiffs by name Jayamma filed petition on behalf of plaintiffs who are minors to implead them as parties in O.S.No.164/1999 and the said petition was dismissed by this court and the revision petition also dismissed by the Hon’ble High Court of Andhra Pradesh. After filing Execution Petition on the basis of decree in O.S.No.164/1999 the 1st defendant obtained registered sale deed and got delivery of the possession of the suit schedule property through the Hon’ble
Court and he is in possession of the same since the date of delivery. The mother of the plaintiffs by name Jayamma knows about the sale transactions and passing of decree. The first defendant got marked Ex.B5 which shows that H.Thimmappa was examined as DW2 in OS.No.164/1999 which reveals that the suit in OS No.164/1999 was disposed on merits and he deposed that the suit schedule property is ancestral property of second defendant. Ex.B6 reveals that mother of plaintiffs by name
Jayamma filed I.A.No.740/2000 in revision petition u/sec.115 of CPC on the file of
Junior Civil Judge Court Kalyandurgam and also filed Civil Revision petition No.2974 17
before the Hon'ble High Court of Judicature Andhra Pradesh at Hyderabad. It shows
that the plaintiffs mother Jayamma got knowledge about the filing the suit in
OS.No.164/1999 during pending of suit. The plaintiffs did not file any documents to
show that after execution of Will dated 18-5-1994 they became possession of the suit schedule property and other properties covered under Ex.A.1. Except Ex.A.3 birth certificate of 1st plaintiff, the plaintiffs did not file any other proof to shows that the second plaintiff was born as on date of Ex.A.1. The plaintiffs failed to establish the suit schedule property is self acquired property of Chadive Kollappa who executed Ex.A1. If the properties covered under Ex.A1 Will are not self acquired properties of Kollappa, Kollappa has no right to execute Will in favour of plaintiffs by bequeathing the properties covered under Ex.A1 Will. The contention of the defendants is also that Kollappa became mad and his whereabouts not known and never execute Ex.A.1 Will in favour of the plaintiffs by keeping the mother of plaintiffs by name Jayamma as a natural guardian. As seen from the evidence of
DW1 and 2 that , the second defendant got the suit schedule property from his ancestors when his father became mad and that he was in possession and enjoyment of the suit schedule property as a kartha of joint family and sold the suit schedule property to the first defendant for legal and family necessities. The plaintiffs failed to establish the fraudulent nature of 1st defendant in obtaining decree in O.S.No.164/1999 and also failed to establish that both the plaintiffs were born as on date of Ex.A1. The plaintiffs obtained sale deed dated 25-4-2007 through court in execution of decree in O.S.No.164/1999, hence the sale deed is not liable for cancellation as prayed for. Accordingly Issue No.5 is answered.
20. Issue No.6:-
Whether the plaintiffs are entitled for the relief of declaration of title in respect of plaint schedule properties?
As seen from the evidence of PW.1 and 2 that the suit schedule property and other properties covered in Survey Nos.184, 185 are self acquired properties of grandfather of the plaintiffs by name Chadive Kollappa and he purchased the suit schedule properties and other properties. But during course of cross examination
PW.1 and 2 admitted that they do not know from whom Chadive Kollappa purchased the suit schedule properties. The plaintiffs did not file any documentary evidence to show that the properties covered under Ex.A.1 are self acquired of Chadive Kollappa and how Chadive Kollappa acquired the properties covered under Ex.A.1, except the 18 oral evidence of PW.1 and PW2 the plaintiffs did not file any document to show that these suit schedule properties are self acquired properties of Chadive Kollappa and the same was devolved on the plaintiffs by virtue of Ex.A.1 Will dated 18-5-1994.
The learned counsel for plaintiffs filed written argument and argued that the suit schedule property is self acquired property of Chadive Kollappa who is grandfather of the plaintiffs and that the second defendant who is father of plaintiffs addicted for bad vices like playing Matka and womanizing and neglected the plaintiffs and their mother Jayamma and that Chadive Kollappa executed Ex.A1 will in a sound disposal state of mind in favour of the plaintiffs by keeping their mother as a guardian and that the second defendant has no manner of right over the suit schedule property and sold away the same to first defendant for his bad vices and defeated the interest of the plaintiffs who were minors at the time of execution of agreement of sale in favour of first defendant ,and he relied upon the decision of
Hon'ble High Court at Hyderabad for the state of Telangana and for the state of
Andhra Pradesh reported in 2015 (4) ALT, Page 705, where in his lordships held that no amount of evidence can be looked into without pleading and no relief can be granted to claim made in chief affidavit evidence in the absence of any pleading in original application, even if the deponent was not cross examined by other side and even if no rebuttal evidence is let in disputing such claim. The learned counsel for plaintiffs further relied upon the decision of Hon'ble Supreme Court reported in 2013 (3) GLH 690 in between Saroj Vs. Sunder Singh and others ,wherein his lordship held that, the provisions of Sub. Sec.3 and 8 shall attracts as the mother sold the property without previous permission of the court. The sale deed executed by mother in favour of respondent is voidable at the instance of the minors. The learned counsel for the plaintiffs further relied upon the decision of Hon'ble
Supreme Court reported in AIR 2005 (52) in between Meenakshiammal and others
Vs. Chandrasekharan and another wherein his lordship held that, when no plea that will was forged in lower court, in absence of such plea order holding that will was forged is not proper and the genuineness of the Will said to be proved. The learned counsel for plaintiffs further relied upon the decision of Hon'ble Supreme Court of
India reported in Law Summary SC 45, wherein their lordship held that transferee from the minor after he attained majority can file a suit to set aside the alienation made by the minor's guardian.
19
21. The learned counsel for first defendant filed written argument and also argued that the suit schedule property is not self acquired property of Chadive
Kollappa and it is ancestral property of second defendant and that being only son of
Kollappa, the 2nd defendant got the suit schedule property and other properties and managed the same as a Kartha of joint family and sold the suit schedule property to the first defendant for legal necessities and family necessities and that the sale transaction between first defendant and second defendant is binding on this plaintiffs and that there is no collusion in between first and second defendant in obtained decree and that the suit in OS No.164/1999 was decreed on merits and the
Hon'ble Court executed sale deed in favour of first defendant on execution of decree
on behalf of second defendant who was defendant in OS No.164/1999 and he relied upon the decision of Hon'ble High Court of Judicature of Andhra Pradesh at
Hyderabad reported in 2000(1) ALD Page No.750, Wherein his lordship held that, the burden is upon the plaintiffs to prove the twin considerations that the alienations made by the first defendant are tained with illegality or immorality and the purchasers have knowledge of the same antecedent to the transaction and having known the same, have pushed through the transactions. In present case in hand the contention of the plaintiffs are that the suit schedule property is self- acquired property of Chadive Kollappa and the said Chadive Kollappa executed
Ex.A.1 Will in favour of the plaintiffs who are minors by keeping their mother as guardian and that by virtue of registered Will the mother plaintiffs became possession of the suit schedule property and other properties covered under Ex.A.1.
22. As seen from the evidence of PW.1 and 2 that PW.2 who is mother of plaintiffs has been in possession and enjoyment of plaint schedule property and other properties in Sy.No.184 and 185 from 1994 onwards. But as seen from Ex.A.1 it was executed by Chadive Kollappa on 18-5-1994, and there is no proof on record to show that the mother of plaintiffs became possession of the plaint schedule property from 1994 onwards in persuasance of ExA1. Ex.A.2 death certificate reveals that Chadive Kollappa died on 3-8-1998. Therefore the plaintiffs has to establish how their mother Jayamma got possession of the plaint schedule property prior to death of Chadive Kollappa who is executant of Ex.A.1. The first defendant got marked Ex.B.3 Mee Seva Copy of 1-B Namuna, Ex.B.4 Mee seva copy of adangal for the fasli No.1425 to show that he is in possession of the schedule property.
Ex.B1 and B2 reveals that the land in Sy.No.184 an extent of Ac.10.83 cents and the 20 land an extent of Ac.39.70 cents in Sy.No.185 in the name of Peddodu. The plaintiffs are also admitted that basing of decree in OS.No.164/1999 the Hon'ble Junior Civil
Judge's Court, Kalayandurg executed sale deed in favour of first defendant
regarding the suit schedule property and first defendant got deliver of the suit schedule property through court on execution of Decree in OS.No.164/1999. The plaintiffs did not file any documentary evidence to show that the properties covered under Ex.A1 Will are self acquired properties of Chadive Kollappa and that the said
C.Kollappa got absolute right over the properties covered under Ex.A1 including suit schedule property. If the properties covered under Ex.A1 will are not self acquired property of C.Kollappa, the second defendant also got right over the properties. The contention of the first defendant is that the second defendant is Kartha of joint family is having right, title, possession and enjoyment over the properties covered under Ex.A1 including the suit schedule properties and he executed agreement of sale in favour of first defendant for family necessities. There is no evidence that the second defendant sold the suit schedule properties for bad vices and he is the guardian of the plaintiffs who are minors at the time of execution of agreement of sale in favour of first defendant. Therefore the above citations are not applicable to the present case in hand and the facts of the present case in hand are different that of the above citations. Hence the plaintiffs are not entitled for declaration as prayed for. Accordingly Issue No.6 is answered.The plaintiffs failed to establish their right over the suit schedule property to declare them as absolute owners of the suit schedule properties and the plaintiffs also failed to establish that the suit schedule property is in wrongful possession of the 1st defendant, hence the plaintiffs are not entitled for mesne profits as prayed for.
23. Issue No.7:-
To what relief?
In view of finding issue No.1 to 6 the suit is liable to be dismissed.
24. In the result, the suit is dismissed. No costs.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in open court on this the 9th day of March 2018.
Junior Civil Judge,
Kalyanadurg.
21
Appendix of evidence
Witnesses examined for
Plaintiffs Defendants
PW.1: H.Lakshminarayana DW1: B.Meenakshamma PW.2: H.Jayamma DW2: G.Sannappa PW.3:H.Thimmappa PW.4:H.Gangappa PW.5: R.Nagabushana (eschewed).
Exhibits marked on Plaintiffs side
Ex.A.1 is registered Will dated 18-5-1994.
Ex.A.2 is death certificate of Chadive Kollappa (Grandfather of plaintiffs) given by Mandal Revenue Officer, Bramhasamudram, dated 3-7-2007.
Ex.A3: is Birth Certificate of Lakshminarayana issued by the Head Master, MPUP School, Theetakallu.
Exhibits marked on Defendants side
Ex.B.1 is certified copy of Diaglot for Survey No.184 to an extent of Ac.10.83 cents issued by Sub-Registrar, Kalyandurg.
Ex.B.2 is certified copy of Diaglot for Survey No.185 to an extent of Ac.39.70 cents issued by Sub-Registrar, Kalyandurg.
Ex.B.3 is Original Mee seva copy of 1-B Namuna (ROR) dated 27-3-2015.
Ex.B.4 is Original Mee seva copy of adangal dated 27-3-2015.
Ex.B.5 is certified copy of deposition of PW.3/H.Thimmappa in O.S.164/1999 who was examined as DW.2 on the file of Junior Civil Judge’s Court, Kalyandurg.
Ex.B.6 is Served summon of 1st defendant in C.R.P.No.2974 of 2001
dated 11-7-2001 on the file of Hon’ble High Court of A.P., along
with copy of petition.
Junior Civil Judge, Kalyanadurg.