1O.S.110/2014 VII ADJ/VSP
IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM
Present: Sri. Dr.B.SATYANARAYANA,
XII ADDITIONAL DISTRICT JUDGE
FAC VII ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Monday, the 23rd day of August, 2021
O.S.No.110/2014
Between:
1. Manthina Vijaya, W/o late Apparao Babji, Hindu, Aged 48 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu Veedhi, Narsipatnam Municipality, Visakhapatnam District.
2. Manthina Radha, D/o o late Apparao Babji, Hindu, Aged 23 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu Veedhi, Narsipatnam Municipality, Visakhapatnam District.
3. Manthina Madhupriya, Aged 14 years, being minor represented by her mother and natural guardian Smt.Manthina Vijaya, W/o late Apparao Babji, Hindu, Aged 48 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu Veedhi, Narsipatnam Municipality, Visakhapatnam District.
…Plaintifs
And
1. Smt.Manthina Anasuya, W/o late Sankara Rao, Hindu, Aged 65 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
2.Manthina Ramana Rao @ Tirumala Rao, S/o M.Sankara Rao, Hindu, Aged 45 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
3. Manthina Gopalakrishna, S/o Sankara Rao, Hindu, Aged 40 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
4. Manthina Durga Prasad, S/o Sankara Rao, Hindu, Aged 39 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
5. Manthina Mohana Rao, S/o late Sankara Rao, Hindu, Aged 29 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
2O.S.110/2014 VII ADJ/VSP 6. Smt.Manthina Lakshmi, W/o Ramana @ Tirumala Rao, Hindu, Aged 38 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
7. Smt.Manthina Suneetha, W/o Gopala Krishna, Hindu, Aged 35 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116.
8.Smt.Manthina Yogi@ Chinni, W/o Durga Prasad, Hindu, Aged 28 years, R/o D.No.30-108-2, (Old Door No.38/85), Bonthu vari veedhi, Near Rice mill, Narsipatnam, Visakhapatnam-531116. … Defendants
This suit has come on 16-08-2021 for fnal hearing before me in the presence of Sri.D.Dakshina Murthy, Advocate for the plaintifs and
Sri.V.V.Ravi Prasad and Sri.J.V.Ramakrishna, Advocates for defendants and the matter stands for consideration to this day, this court delivers the following:
:: J U D G M E N T ::
1.This suit is fled on behalf of the plaintifs for partition of the suit schedule property into four equal shares and allotment of one share each to the plaintifs and one share to the 1st defendant by metes and bounds and for vacant possession.
2.The relevant brief averments of the plaint are that plaintif
No.1 is the wife and plaintifs No.2 & 3 are the daughters and defendant
No.1 is the mother of late Manthina Apparao Babji, who died intestate on 31-01-2013, due to cancer and defendants No.2 to 5 are the younger brothers of late Apparao Babji and whereas, defendant No.6 is the wife of defendant No.2, defendant No.7 is the wife of defendant No.3 and defendant No.8 is the wife of defendant No.4.
3. It is alleged in the plaint that plaint schedule house property is the self acquired and developed by Sri late Apparao Babji and late
Apparao Baji used to run a printing press for his livelihood under the name 3O.S.110/2014 VII ADJ/VSP and style of “SWAMY AYYAPPA PRINTERS” and during his lifetime, he got purchased a house site from Bonthu Demudu etc., by way of a Registered
Sale deed, Dt.07-11-1991 for a consideration of Rs.15,000/- (Rupees
Fifteen Thousand Only) and in the year 1996 he got constructed the plaint schedule house (i.e., three foors) by spending his resources and thereby, developed the property and by that time, defendants No.2 to 5 were not earning and prior to the construction of the building late Apparao Babji and his family were residing in a rented premises and unfortunately, in the year 1993 father of late Apparao Babji by name Sankara Rao had passed away and by that time, defendants No.2 to 5 were completely dependents and after completion of the building, out love and compassion, Late
Apparao Babji permitted defendants No.2 to 5 to live with him in the plaint schedule house and as plaintif No.1 being the eldest daughter-in-law of the said family she looked after defendants No.2 to 5 with afection.
4.It is further contention of plaintifs that at later point of time, unfortunately, even before defendants No.2 to 5 and their families moved out of schedule property late Apparao Babji passed away intestate due to cancer on 31-01-2013 and after demise of late Apparao Babji, D2 to D5 have changed their attitudes and started all sorts of unnecessary disputes with plaintif No.1 and unfortunately, having vexed with the attitude of defendants No.2 to 5, the 1st plaintif requested them to vacate the property and secure their own accommodation and at that juncture, the defendants No.2 to 5 have stated that they have got equal rights in the property under a gift deed in their favour and threatened the 1st plaintif with dire consequences for which the 1st defendant also supported them, though she is fully aware about the true facts.
5.It is further averred that on 22-10-2013 plaintifs got issued a lawyer’s notice to all the defendants to vacate the schedule property and 4O.S.110/2014 VII ADJ/VSP on that they replied on 26-10-2013 with all false and baseless allegations and under those circumstances, plaintifs are constrained to fle the suit for partition.
6. Defendant No.4 fled written statement and same has been adopted by other defendants.
7.Defendant No.4 has admitted the relationship and denied the material contentions of the plaintifs to the efect that late Apparao Babji could not settle even at the age of 26 years and as such, his father
Sankara Rao, who was an Assistant Sub-Inspector in Railway Protection
Force in Visakhapatnam got set up a printing press with the help of one
Satyanarayana and the said Sankara Rao invested money in the Swamy
Ayyappa Printers in which late Apparao Babji and Satyanarayana were partners and the said business was in the nature of joint family business and the income derived from the said business was never intended for the beneft of late Apparao Babji and Apparao Babji never misused his position and in the year 1987 the marriage of Apparao Babji was performed with the 1st plaintif and all the family members used to stay in the rented house and Sankara Rao intended to construct house in view of his short time of his service and with a view to obtain bank loan and for his convenience Sankara Rao purchased the suit schedule property site in the name of Apparao Babji and during the life time of Sankara Rao the ground foor of the building in the schedule property was constructed with the retirement benefts of Sankara Rao and a sum of Rs.1,50,000/- (Rupees
One Lakh Fifty Thousand Only) was obtained as a loan on the name of
Apparao Babji and the construction of the ground foor was completed just
before the death of Sankara Rao and Sankara Rao died on 13-03-1996 and
house warming ceremony was held in the month of December, 1996 and by that time, the brothers of late Apparao Babji have started earning and 5O.S.110/2014 VII ADJ/VSP they all discharged the loan of Rs.1,50,000/- as the business was not healthy and as such, the whole property was treated as joint family property but not the exclusive property of late Apparao Babji.
8.It is further averred in the written statement that all the brothers intended to develop the property and with the advise of elders and to avoid possible complications late Apparao Babji had executed a gift settlement deed, Dt.29-08-2005 and settled 4/5th share in favour of his brothers and it was informed to 1st plaintif, however, the 1st plaintif suppressed all the facts and fled the false suit.
9.It is further averred in the written statement that late Apparao
Babji and his brothers have jointly spent money for the construction of 1st and 2nd foors, consisting of two portions in each foor and D2 to D5 borrowed money to meet the expenditure for the construction of 1st and 2nd foors and there was an arrangement in writing, Dt.12-11-2009 as a confrmation to the oral partition to the schedule property and accordingly,
Apparao Babji and his family took western portion of the top foor and there was a practical partition of the schedule property during the life time of Apparao Babji, but, unfortunately, Apparao Babji was afected with cancer in the year 2010 and as a matter of fact, D4 paid Rs.1,50,000/- for the admission of 2nd plaintif in B.D.S.Course for her admission apart from her educational loan and he stood as guarantor and after the demise of
Apparao babji, the unhappy situation was in existence and as a matter of fact, the 1st and 2nd foors were constructed in the years 2009 and 2010 but not before the year 1993 and the entire house was initially assessed on the name of D1 alone and electricity connections were not on the name of late Apparao Babji and as such, the suit is liable to be dismissed with costs.
6O.S.110/2014 VII ADJ/VSP
10.Based on the above pleadings of both the parties to the suit, my learned Predecessor has framed the following issues and my fndings are recorded against each of them.
S.No.ISSUESFINDINGS 1Whether the schedule property is the self-No acquired property of Sri Late Apparao
Babji, the husband of 1 st plaintif, father of plaintifs No.2 and 3 and the son of the 1 st defendant ? 2Whether the schedule property was treatedYes as joint family property of the plaintifs and the defendants in the circumstances as alleged by the defendants ? 3Whether the said late Apparao BabiYes executed a gift deed, Dt.29-08-2005 during his life time setting 4/5 th share in the schedule property in favour of his brothers i.e., D2 to D5 ? 4Whether there was practical partition ofNo plaint schedule property as contended by defendants ? 5Whether the plaintifs are entitled for 1/4 thNo share each as proposed for or 1/20 th share each as contended by the defendants ? 6To what relief ?See last para of the judgment
11.To prove the suit contentions, 1st plaintif herself was examined as PW.1 and one Pothala Akkayya Naidu was examined as PW.2.
Documents Ex.A1 to Ex.A11 have been marked. Refuting the case of plaintif and substantiating their defence, defendants have examined defendant No.4 as DW.1 and one Vantakula Srinivas was examined as
DW.2, who is a third party to the suit. Documents, Ex.B1 to Ex.B15 have been marked on behalf of defendants.
7O.S.110/2014 VII ADJ/VSP
12.Heard both sides. The learned Advocate for the plaintifs has also fled written arguments. Perused the record.
REASONS FOR FINDINGS:
Issue No.1 to 3 are discussed together for sake of convenience
ISSUE No.1
Whether the schedule property is the self-acquired property of Sri Late
Apparao Babji, the husband of 1st plaintif, father of plaintifs No.2 and 3 and the son of the 1st defendant ?
ISSUE No.2
Whether the schedule property was treated as joint family property of the plaintifs and the defendants in the circumstances as alleged by the defendants ?
ISSUE No.3
Whether the said late Apparao Babi executed a gift deed, Dt.29-08-2005 during his life time setting 4/5th share in the schedule property in favour of his brothers i.e., D2 to D5 ?
13. It is the contention of the plaintifs that the plaint schedule property is the self-acquired property of late Apparao Babji, but, it is the contention of the defendants that the plaint schedule property was treated as joint family property and late Apparao Babji had executed a gift deed on 29-08-2005, during his life time and settled 4/5th share to his brothers i.e., D2 to D5 in respect of the plaint schedule property.
14. It is a matter on record that the plaint schedule property is an extent of 292.5 Square Yards and there is an R.C.C. slabbed building therein with ground foor, frst foor and second foor with six portions with
Door No.30-08-2.
15.Coming to the evidence on record, 1st plaintif Manthina Vijaya was examined as PW.1. PW.1 fled afdavit in lieu of chief examination and she was examined on oath and Ex.A1 to Ex.A11 are marked on her behalf.
PW.1 was cross-examined on 24-08-2016, 27-09-2016 & 15-11-2016. In the cross-examination, PW.1 has admitted that D1, who is her mother-in- law, is entitled for a share but, she did not issue any legal notice to D1 for 8O.S.110/2014 VII ADJ/VSP partition of the property. PW.1 has not fled any property tax receipt on the name of her husband, but, has deposed that she has fled the property tax assessment on the name of her husband and has further deposed that
D1 is paying the property tax after death of her husband. PW.1 has not fled the approved plan issued by Panchayat and has deposed that she got all the original documents pertaining to the plaint schedule property like sale deed, building plans, tax pass books, electricity receipts etc., but, she did not fle any such original documents and it is her explanation that D1 has concealed the original sale deed.
16.It is elicited from PW.1 that her husband, late Apparao Babji had sufered from cancer prior to the year 2010 and he was unable to attend any work due to his ailment and died in the year 2013. She has admitted that her father-in-law, late Manthina Sankara Rao, retired as
Assistant Sub-Inspector in Railway Protection Force in the year 1994 and died in the year 1996 and the house warming ceremony was held in the same year and at that time, there was no frst foor and second foor and they all shifted to the ground foor from the rented house and has further deposed that from 1996 onwards her brothers-in-law, (D2 to D5) have been earning money.
17.It is also elicited from PW.1 that her husband executed the gift deed, Dt.29-08-2005 without informing to her and without her knowledge and the said gift deed is not valid under law and she does not know as to why the gift deed is not valid. She has further deposed that there were no disputes between her husband and her brothers-in-law at any time.
18. PW.2 Pothala Akkayya Naidu has deposed in his cross- examination that he worked as a daily wage labourer under a municipality labour contractor in the Narsipatnam municipality and he personally saw that the husband of PW.1 was paying tax to the Narsipatnam Municipality 9O.S.110/2014 VII ADJ/VSP pertaining to the years 1996 and 1997. Since, the plaintifs have not fled any tax receipts pertaining to the plaint schedule property, I am of the considered opinion that the evidence of PW.2 is not helpful to the case of the plaintifs.
19. Except A1 and A2, the other documents in Ex.A3 to Ex.A11 are not in dispute. Ex.A1 is the certifed copy of the sale deed, Dt.07-11- 1991 in favour of late Apparao Babji. Ex.A2 is the certifed copy of the gift deed, Dt.29-08-2005 executed by late Apparao Babji in favour of D2 to D5.
20.4thdefendant Manthina Damodara Durga Prasad was examined as DW.1 and Ex.B1 to Ex.B15 were marked on behalf of the defendants. DW.1 was cross-examined on 25-10-2017, 15-11-2017 & 25-04-2018. Ex.B1 is the certifed copy of the gift settlement deed, Dt.29- 08-2005, DW.1 has also fled the original of Ex.B1 and it is marked as
Ex.B13. DW.1 has also fled the original sale deed, Dt.07-11-1991 and it is marked as Ex.B14. Hence, it can be said that DW.1 has fled the original documents of Ex.A1 and Ex.A2.
21.DW.1 has also fled legal heir certifcate of Sankara Rao in
Ex.B2 and original demand bill with diferent Assessment No.s Dt.17-04- 2017 under Ex.B4 to Ex.B9. Ex.B10 and Ex.B11 are with assessment
No.4147 for the year 1999-2000 and 2001-2002. DW.1 has also fled original electricity bills for two service connections.
22.It is a matter on record that plaintifs have fled the suit on 12-02-2014 and late Apparao Babji died in the year 2013. Father of late
Apparao Babji died in the year 1996 and in the same year the house warming ceremony was held and at that time, there was no frst foor and second foor. But, it is the contention of the plaintifs through the chief examination evidence of PW.1 that by the year 1996 late Apparao Babji has constructed the plaint schedule property house consisting of three 10O.S.110/2014 VII ADJ/VSP foors, but, in the cross-examination, she has deposed that the construction of the entire building of three foors with two portions each in the schedule property was completed in the year 1993 itself and it is her further evidence that her husband put his signatures on the respective panchayat approval plans for all the three foors and there is only one assessment for the entire building and after death of her husband, her mother-in-law/D1 paying the property tax in respect of the plaint schedule building and she does not know as to why her husband executed the gift deed on the name of his brothers under Ex.A2 in respect of plaint schedule property.
23.DW.1 has fled Ex.B15 pertaining to the approved building plan in B.A.No.171/2011-12. Ex.B15 approved building plan contains the signatures of late Apparao Babji, D2, D3, D4 and D5, who are brothers and sons of late Manthina Sankara Rao. It may be mentioned here that the plaintifs have fled the suit for partition and claimed exclusive right over the plaint schedule property with the buildings therein and as such, they have to fle the approved plans, if any, on the name of late Apparao Babji and if the said plans are not available, nothing prevented the plaintifs to prove the same by examining any of the employees of Narsipatnam
Municipality/Panchayat and for the reasons best known to the plaintifs, they did not take such steps and they did not even fle any single tax receipt to prove that all the three foors in the schedule property are on the name of late Apparao Babji. Hence, any amount of doubt can be entertained in respect of the contention of the plaintifs. However, the defendants have taken steps and fled building plans and also fled property assessment demands which are disproving the contention of the plaintifs. Hence, I am of the considered opinion that though the sale deed,
Dt.07-11-1991 in Ex.A1 is in favour of late Apparao Babji, it cannot be said 11O.S.110/2014 VII ADJ/VSP that late Apparao Babji had purchased the property with his earnings and for his beneft and enjoyment. On the other hand, the said late Apparao
Babji had executed a gift deed in favour of his brothers and defendants have proved the said gift deed by examining DW.2 Vantakula Srinivas and he signed as attestor to the gift deed.
24.In the pleadings, the plaintifs have not taken any specifc plea regarding gift deed and gave evasive pleadings i.e., it is not valid under law and it is hit by The Prohibition of Benami Property Transactions Act, 1988 (herein after called the Act, 1988). During cross-examination, PW.1 has deposed that her husband has no right to execute the said gift deed, though the schedule property belongs to him. In my considered opinion, it is a legal aspect and if really, the plaint schedule property site belongs to the husband of PW.1, nothing prevented her husband to gift away the property to his own brothers and his wife has no right to interfere with the discretion of her husband.
25.During cross-examination of DW.1, it is suggested to him that the said gift deed is a fabricated one, that signatures of late Apparao Babji were forged in the gift deed. Without there being any specifc pleading regarding the said gift deed, the plaintifs have conveniently denied the genuineness of the gift deed and relied upon a decision in Dhruba Sahu (Dead) And After Him Nalumoni Sahu ... vs Paramananda Sahu,1 on 4
November, 1982 wherein the Hon’ble High Court of Orissa observed in
Para No.6 & 7 that “6. According to Section 123 of the Transfer of Property Act, a gift of immovable property must be efected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. The term "attested" has been defned in Section 3 of the Transfer of Property Act. The essential conditions of a valid attestation are that two or more witnesses must have seen the 1MANU/OR/0008/1983 : AIR 1983 OR 24 12O.S.110/2014 VII ADJ/VSP executant sign the instrument, or have received from him a personal acknowledgment of his signature, and each of them has signed the instrument in the presence of the executant. The deed of gift which has been marked as Exhibit-1 bears the signature of the executant (defendant) and there are the names of two persons who have described themselves as witnesses.” “7. Section 68 of the Evidence Art provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. This Section contains a proviso that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifcally denied. Execution of the deed of gift having been specifcally denied, the proviso does not apply to the present case.”
26.The learned Advocate for the plaintifs had further relies upon a decision JALDU ANANTA RAGHURAM ARYA AND OTHERS Vs. RAJAH
BOMMADEVARA NAGA CHAYADEVAMMA AND OTHERS,2Wherein the
Hon’ble High Court of A.P.considered a mortgage bond and held that as
per Section 68 of the Indian Evidence Act, one of the attesting witness must be examined to prove the mortgage deed.
27.In the instant case, the wife of late Apparao Babji has taken the plea that the gift deed is not valid under the law and has enlarged her contention that it is a fabricated and forged document. The defendants have examined the attestor of the said gift deed and thereby, proved the execution of the gift deed by late Apparao Babji. It is important to note that late Apparao Babji also signed in the approved plan apart from his signature in the said gift deed and he never denied its execution in favour of his brothers. The denial of gift deed by 1st plaintif is not tenable under law and she is the person to safeguard the reputation of her husband and 2MANU/AP/0152/1958 13O.S.110/2014 VII ADJ/VSP she shall take all steps to remove the hurdles, if any, in respect of the said gift deed and its operation and she herself cannot raise any objection regarding its validity and enforceability. It cannot be said that the signature of late Apparao Babji on the gift deed and approved plan are with diferent languages as there is no law prohibiting a person from signing in the language chosen by that person. If really, the plaintifs are denying the signatures of late Apparao Babji on those documents, nothing prevented them to refer those documents to an handwriting expert. The plaintifs without pleadings have taken a diferent contention in the cross- examination of DW.1 which is not valid under law as without pleading there cannot be any evidence and consequently, there cannot be any argument. In my considered opinion, the said gift deed is true, valid and binding on the plaintifs and plaintifs have no right to say that late
Apparao Babji has no right to execute the said gift deed.
28.It is the main contention of the learned Advocate for the plaintifs that Section 04 of the Act, 1988 is prohibiting the defendants to contend that the property was purchased on the name of late Apparao
Babji with the funds of D2 to D5 and with the funds of their father, who worked as Assistant Sub-Inspector in R.P.F and retired and had received huge amounts after his retirement. It is the main contention of the plaintifs that late Apparao Babji himself purchased the property with his own funds as he did business by running a printing press under the name and style of SWAMY AYYAPPA PRINTERS. For the reasons best known to the plaintifs they did not fle any documents pertaining to the said printers to say that Apparao Babji alone did the said printing press business and earned money and with that money he purchased the plaint schedule property site and made constructions thereon consisting of three foors.
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29.It is the explanation of the learned advocate for the defendants that the Act, 1988 is not applicable to the case of plaintifs as the property was purchased with the joint family funds and the property was treated as joint property, but, not the exclusive property of late
Apparao Babji.
30.For the sake of convenience, it is necessary to look into the provisions of the Act, 1988. Section 2 (9) contemplates “Benami
Transaction” means, - “(A) a transaction or an arrangement—
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future beneft, direct or indirect, of the person who has provided the consideration, except when the property is held by—
(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his beneft or beneft of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;”
31.Hence, it can be said that Section 2 (9) (A) (b) (i) is an exception which is taking away from the purview of Benami Transaction. In the instant case, DW.1 has fled original legal heir certifcate of late
Sankara Rao, issued by M.R.O., Narsipatnam, Dt.25-03-1996 in Ex.B2 and on perusal of Ex.B2 goes to show that late Sankara Rao died intestate leaving behind him, his wife Anasuya (D1) Aged about 48 years, Apparao @ Babji husband of 1st plaintif, aged about 33 years, Tirumala rao @
Ramana Rao (D2), aged about 31 years, Gopala krishna Rao (D3), aged about 29 years, Durga Prasad (D4), aged about 26 years, Mohana Rao (D5) aged about 23 years and daughters namely Venkata Ramani aged about 20 years and Suseela aged about 17 years, who are unmarried by that time. It is pertinent to note the ages of the sons and daughters of late 15O.S.110/2014 VII ADJ/VSP
Sankara Rao, by the time of his death, are only two or three years diference among the sons and daughters of late Sankara Rao respectively.
32.PW.1 has admitted that after death of her husband, D1 is paying property tax in respect of the schedule building and marriage with late Apparao Babji was occurred in the year 1987 and her husband never did any job and her husband ran the printing press and prior to that her husband has no avocation and source of income. She has further admitted that her husband did not obtain any bank loan for his capital to start printing press.
33.As per the pleadings of the plaintifs late Apparao Babji permitted his brothers to stay with him and further permitted them to live in the plaint schedule property house. This pleading goes to show that by the date of death of father of late Apparao Babji all the brothers, sisters and their mother were living together. In the cross-examination, PW.1 has admitted that there were no disputes between late Apparao Babji and his brothers and D2 to D5 became earning members from 1996 onwards and the house warming ceremony was held in the month of December, 1996 in which year her father-in-law died and prior to that all the family members resided in a rented house and after the house warming ceremony, they all have shifted to the ground foor of the plaint schedule property building and by that time there were no other foors.
34.If really, late Apparao Babji alone purchased the property with his own funds and constructed the ground foor he should not have allowed his brothers to live in the ground foor and since, plaintifs are admitting the possession and enjoyment of the D2 to D5 in the frst foor and second foor of the plaint schedule property building, as of right, and hence, it can be said that late Apparao Babji had no intention to prevent 16O.S.110/2014 VII ADJ/VSP his brothers from enjoying the plaint schedule property building. Though the sale deed was obtained on the name of late Apparao Babji, the intention of late Apparao Babji and his brothers including their parents, was that they all should enjoy the property as by that time they are all the members of Hindu undivided family as contemplated under section 2 (9) (A) (b) (i) of the Act, 1988 and thus, it can be said that though the sale deed is on the name of late Apparao Babji, it was not acted upon by giving exclusive rights to late Apparao Babji and hence, it can be said that the sale deed in favour of late Apparao Babji would not create any rights on
Apparao Babji alone.
35.It is a matter on record that the late Apparao Babji had executed a gift deed and it was acted upon and as per the said gift deed the other brothers of late Apparao Babji made constructions and enjoying the said properties respectively. It is pertinent to note that as per the gift deed the property therein is a vacant site though there were constructions by that time. It is mentioned in the said gift deed that if there were any constructions the concerned authorities are having every right to collect stamp duty as per the Stamp Act. Hence, it cannot be said that the recitals in the said gift deed are contrary to the existing facts and as such, the said gift deed is not valid under law. It may be mentioned here that the intention of the parties to gift deed was that they want to share the site of the schedule property so that every sharer has a share in the ground foor site and as a matter of fact, late Apparao Babji and his brothers have applied for an approved plan in Ex.B15 and got the same and it contain the signatures of Apparao Babji and his brothers and the proceedings were issued by the Panchayat Secretary, Gram Panchayati, Narsipatnam,
Dt.09-12-2011. In view of Ex.B15, it can be said that there is a gift deed in favour of D2 to D5 and this gift deed is giving rights to the brothers of 17O.S.110/2014 VII ADJ/VSP
Apparao Babji and the intention of Apparao Babji can be gathered from the above circumstances to the efect that the said Apparao Babji had never claimed exclusive right over the site of the schedule property and it was treated as joint family property of their father Sankara Rao and as such, the wife and sons of Sankara Rao are living in the schedule property as of right, but not at the mercy of plaintifs, much less, the legal heirs of late
Apparao Babji.
36.It is important to note that late Sankara Rao, father of late
Apparao Babji and D2 to D5, being male members of the family worked together for the development of their joint family and they never had any disputes during the life time of Sankara Rao as well as Apparao Babji, but, the disputes came after the demise of Apparao Babji. The approved plan being the public document and so also the gift deed have been proved by the defendants and the probabilities are in favour of the defendants in respect of their defence and whereas, the case of the plaintifs have not been proved as pleaded by them. Hence, I have no hesitation to come to a just conclusion of this litigation that plaintifs failed to prove issue No.1 and whereas, defendants have proved Issue No.2 and 3 in their favour.
Issue No.4 & 5 are discussed together for sake of convenience
Issue No.4:-
Whether there was practical partition of plaint schedule property as contended by defendants ?
Issue No.5:-
Whether the plaintifs are entitled for 1/4th share each as proposed for or 1/20th share each as contended by the defendants ?
37.Both the issues were framed by throwing burden of proof on the defendants. In respect of claim of 1/4th share each in the plaint schedule property, the burden of proof is upon the plaintifs. As per the plaintifs, there was no any type of partition in respect of plaint schedule 18O.S.110/2014 VII ADJ/VSP property but, as per the contention of defendants, there was an oral partition and it was reduced into writing on 12-11-2009. But, no such document has been fled by the defendants and DW.1 has admitted the same in his evidence.
38.In the cross-examination, PW.1, Manthina Vijaya has admitted that they are residing in the western portion of the ground foor, D2 is residing in the eastern portion of the frst foor, D3 and D4 are residing in the eastern portion of the ground foor. She has denied the suggestion that she is residing in the western portion of 2nd foor.
39.In the cross-examination, DW.1 has admitted that there is no mention either in Ex.B13 gift deed or Ex.B14 sale deed that there was a partition between the donor and donees.
40.In view of the above evidence of PW.1 and DW.1, it can be said that there was no practical partition of plaint schedule property as contended by the defendants. As per Ex.B15, the building plan was submitted by late Apparao Babji and D2 to D5 and it was approved on 09- 12-2011 and they have applied for such plan jointly. A perusal of Ex.B15 goes to show that it has no names of the owners of each portion in the 1st foor and 2nd foors. It is mentioned in Ex.B15 that the plan was pertaining to 1st and 2nd foor over the existing ground foor residential building belongs to late Apparao Babji and D2 to D5. The plan of existing ground foor was also shown in Ex.B15 along with site plan. Hence, it can be said that the entire building including the site therein is the joint property of late Apparao Babji and D2 to D5 and it was not partitioned and there was no valid arrangement among late Apparao Babji and D2 to D5.
41. The defendants have fled original demand bills in Ex.B4 to
Ex.B9, Dt.17-04-2017 which are subsequent to fling of the suit for the house bearing Door No.21 with diferent assessment numbers. The name 19O.S.110/2014 VII ADJ/VSP of late Apparao Babji and his mother Anasuya (D1) were also mentioned therein apart from the names of the brothers of late Apparao Babji. Two house property demand notices were on the name of D1, which are prior to the fling of the suit, and they are Ex.B10 and Ex.B11. Two electricity bills were fled which are on the name of D1, and they are prior to the fling of the suit and they are marked as Ex.B12. Hence, it can be said that the house properties were not partitioned and there is no valid arrangement in the eye of law.
42.Now it is for the both parties of the suit to go for amicable settlement for making necessary arrangements for the division of the house portions in the three foors by keeping some of the common amenities for the beneft of all. As of now, the plaintifs are not entitled for partitioning the properties as prayed by them as the said house properties are not the exclusive properties of late Apparao Babji. The plaint schedule properties are the joint properties of plaintifs and D2 to D5 and they are all entitled for partitioning the plaint schedule property building and each sharer would get 1/5th share in the schedule property building. The 1st defendant being mother of late Apparao Babji would not get a share much less, 1/20th share as contended by the defendants as there is a gift deed in favour of D2 to D5 and the said gift deed is excluding the right of D1 and succession would not open in view of the gift deed executed by late
Apparao Babji. Hence, issues No.4 & 5 are decided accordingly to the efect that 4th issue is decided against the defendants and 5th issue is decided against both parties.
43.In the result, the suit is dismissed with costs.
Typed to my dictation by Stenographer on computer directly, typed by him, corrected and pronounced by me in the open Court, on this the 23rd day of August, 2021.
20O.S.110/2014 VII ADJ/VSP
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XII ADDITIONAL DISTRICT JUDGE
FAC VII ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Appendix of Evidence Witnesses Examined
For Plaintifs:For Defendants:
PW.1: Manthina VijayaDW.1: M.D.Durga Prasad PW.2: P.Akkayya NaiduDW.2: V.Srinivas
Documents Marked For Plaintifs: Dt.07-11-1991 Original certifed copy of sale deed executed in Ex.A1 favour of M.Apparao Babji by B.Demudu and others Original certifed copy of alleged gift deed said to have been executed by M.Apparao Babji in favour Ex.A2Dt.29-08-2005 of M.Tirumala Rao and others along with manually written portion
Ex.A3Dt.22-10-2013 Ofce copy of Lawyer’s notice issued by plaintifs
Ex.A4Dt.26-10-2013 Ofce copy of reply notice issued by defendants
Ex.A5Dt.01-02-2014 Ofce copy of lawyer’s notice issued to D4
Ex.A6Dt.03-02-2014 Original registered postal receipt
Ex.A7-Original postal acknowledgment
Dt.16-01-2015 Ofce copy of lawyer’s notice issued to the Ex.A8 Commissioner, Narsipatnam Municipality
Ex.A9Dt.19-01-2015 Original register postal receipt
Ex.A10-Original postal acknowledgment
Original extract of death register issued by Ex.A11Dt.18-03-1996Narsipatnam Municipality in respect of death of Sri.M.Sankara Rao
For Defendants:-
Certifed copy of gift settlement deed executed by Ex.B1Dt.29-08-2005my eldest brother late Apparao babji in favour of all his brothers vide documents No.3843/2005 Dt.23-05-1996 Original legal heir certifcate of late Shankara Rao Ex.B2 issued by M.R.O., Narsipatnam
Ex.B3Dt.11-10-1995 Original way bill of commercial
Dt.17-04-2017 OriginaldemandbillforAssessment Ex.B4 No.1136009561 Dt.17-04-2017 OriginaldemandbillforAssessment Ex.B5 No.1136009555 21O.S.110/2014 VII ADJ/VSP
Dt.17-04-2017 OriginaldemandbillforAssessment Ex.B6 No.1136009557 Dt.17-04-2017 OriginaldemandbillforAssessment Ex.B7 No.1136009562 Dt.17-04-2017 OriginaldemandbillforAssessment Ex.B8 No.1136009559 Dt.17-04-2017 OriginaldemandbillforAssessment Ex.B9 No.1136009558 Original demand notice for ground foor of the Ex.B10Dt.29-03-2000house with Assessment No.4147 for the year 1999- 2000 Original demand notice for ground foor of the Ex.B11-house with Assessment No.4147 for the year 2001- 2002 Original electricity bills two in number for the two Ex.B12-service connection of the ground foor bearing S.C.No.11545119000009728 & 1154511900010325 Original gift deed bearing Doc.No.3843/2005 Ex.B13- executed by M.Apparao Babji
Ex.B14-Original Regd. sale deed bearing Doc.No.1548/1992
Original proceedings of Secretary, Gram Panchayat, Ex.B15-Narsipatnam Gram Panchayat, approving building plan in B.A.No.171/2011-2012 with approved plan
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XII ADJ/VSP