O.S.No.18 of 2008 1 A.S.C.J. Court, Kurnool.
IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,
KURNOOL.
Present: Ms. C.K. GAYATHRI DEVI,
Additional Senior Civil Judge, Kurnool.
Wednesday, the Thirtieth [30th] day of November, 2016.
ORIGINAL SUIT No.18 OF 2008
Between
1. Smt. A.Rajya Lakshmi Devi, Wife of T.Ramadasu, aged about 38 years,
Hindu, resident of Door No.65/51A, Fort, Kurnool.
2. Smt. A.Nagamani, Wife of T.Sreenivasulu, aged about 36 years, Hindu, resident of Maddipeta, Near City Talkies, Raichur, Karnataka State.
3. Smt. A.Sunitha, Wife of T.Sreenivasulu, aged about 34 years, Hindu, resident of H.No.4-7-146/2, Flat No.54, Beside Satya Complex, Near
Police Station, Hayath Nagar Bagh, Ranga Reddy District, Hyderabad – 501505.
.... PLAINTIFFS.
And
1. Sri A.Thirupalaiah, Son of Late A.Venkata Ramudu, aged about 60 years, Hindu, N.G.O. Colony, Vanasthalipuram, Ranga Reddy District,
Hyderabad.
2. Smt. M.Vijayalakshmi, Wife of M.Srinivasulu, aged about 26 years,
Hindu, resident of House No.19/255, Bandimetta, Kurnool.
3. Smt. M.Srilakshmi, Wife of M.Manohar, aged about 24 years, Hindu, resident of House No.19/255, Bandimetta Street, Kurnool.
4. M.Vishalakshi, Wife of Venkateswarlu, aged about 20 years, Hindu, resident of House No.19/255, Bandimetta, Kurnool.
…. DEFENDANTS.
******
This Suit, coming on 30.09.2016, for Arguments, before me in the presence of Sri M.D.Y.Rama Murthy and Sri M.D.V.Jogaiah Sarma, Advocates for the Plaintiffs, and of Sri B.Jangam Reddy, Advocate for the Defendants No.2 to 4; and the Defendant No.1 having remained Ex-parte to the Proceedings of the Suit; and upon hearing the Arguments of the Counsel for both Parties; and upon perusing the entire material available on record; and having been stood over for consideration till this day, this Court delivered the following:
JUDGMENT
1.This Suit is filed by the Plaintiffs, seeking Preliminary
Decree for Partition and separate possession of their 3/4th share, i.e.,
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1/4th share each, in the Plaint Schedule Plot, and for Permanent
Injunction, restraining the Defendants No.2 to 4, and their men and agents from making any constructions in the Plaint Schedule Plot, or in any way interfering with their peaceful possession of the same; and for
Costs of the Suit.
2.The case of the Plaintiffs, as per the Plaint, in brief, is as follows:-
The Plaint Schedule Plot was the absolute Property of Late
Smt. Kalavathamma, who is the mother of the Plaintiffs and the wife of the Defendant No.1. She had got the said Property from her father under a Registered Gift Deed, dated 13.10.1972. Since then, she had been in possession and enjoyment of the same till her death in 1980. After her death, the Defendant No.1 and the Plaintiffs have succeeded to the same as per Hindu Succession Act, and have been in joint possession of the same. Each of them are having 1/4th share therein. The Plaintiffs came to know that the Defendants No.1 to 4 have colluded, and are trying to create documents, to defeat the right of the Plaintiffs. So, the Plaintiffs were not interested to continue the joint possession of the Plaint
Schedule Plot with the Defendant No.1. They have issued a Legal Notice,
dated 11.12.2006, demanding for amicable Partition of the Plaint
Schedule Plot. But, the Defendants No.2 to 4 got issued a Reply, dated 26.12.2006, with false allegations. The Plaintiffs waited that the
Defendant No.1 would agree for amicable Partition. On 18.12.2007, the
Defendants No.2 to 4 tried to dig foundation pits in the Plaint Schedule
Plot. It was stopped by the Plaintiff No.1 with great difficulty. The
Defendants No.2 to 4 went away, saying that they would come with more men, and would construct a building in the Plaint Schedule Plot high- handedly. They have no manner of right to make any such constructions,
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or to alter the nature of the Plaint Schedule Plot. Their threats and attempts are illegal, and high-handed. Hence, the Suit.
3.The Defendant No.2 has filed her Written Statement, and it was adopted by the Defendants No.3 and 4. The Defendant No.2 had contended as follows:-
The allegations in the Plaint are false. The Defendant No.1 has got this Suit filed by the Plaintiffs, in order to extract more money from the Defendants No.2 to 4. The Plaintiffs have no right or possession over the Plaint Schedule Property. The Defendants No.2 to 4 have got issued a Reply Notice, and the Plaintiffs are aware of their purchase,
dated 07.09.2006. They are in possession and enjoyment of the Property,
as per their documents. There is no cause of action for the Suit, and the one alleged is false. They had constructed their buildings completely even before filing of the Suit. The Plaintiffs and the Defendant No.1 were not in possession on the date of filing of the Suit, as the Defendant No.1 had delivered the possession of the Property to the Defendants No.2 to 4 on the date of their Sale Deeds, and buildings were also constructed by them. They are in possession and enjoyment of their respective portions.
The Suit is under valued. The Plaintiffs have to pay Advalorem Court
Fees on the Market Value, and the Court Fee paid by them is incorrect.
The Plaintiffs are aware of the Sales by the Defendant No.1. Due to increase in prices, the Defendant No.1 and the Plaintiffs have filed a collusive Suit, to harass them. The Suit for Partition, without declaration to set aside the Sale Deeds, dated 07.09.2006, is not maintainable.
Hence, the Suit may be dismissed with costs.
4.Basing on the Pleadings of both Parties, the then Presiding
Officer of this Court has framed the following Issues for Trial.
[1] Whether the Plaintiffs are entitled for Partition and
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separate possession of their 1/4 th share each in the
Plaint Schedule Property?
[2] Whether the Plaintiffs are entitled for Permanent
Injunction, as claimed?
[3] To what relief?
5.As per Orders in I.A.No.240 of 2009, the Defendants No.2 to 4 have filed their Additional Written Statement. The Defendant No.2 filed the Additional Written Statement, which is adopted by the Defendants
No.3 and 4. the Defendant No.2 had contended as follows:-
The Defendant No.1 is a Retired Employee, who worked in
Education Department. Kalavathamma was his first wife. After her death, he married another woman, and got a son and daughter through her.
When he was in job, he acquired Properties, and took some Properties benami, in the name of his wife Kalavathamma and his father-in-law
Sanjanna, and other members of the family, and some properties are in his name. He has got House Plots in Kurnool, and the Schedule Property therein, i.e., House in N.G.O. Colony, Vanasthalipuram, Ranga Reddy
Dostrict. It was acquired by him, and he is residing therein, along with his second wife and children, after his retirement. All the family properties, including the said Properties, were not shown for Partition in the Suit. So, the Suit for Partial Partition is not maintainable. If all the
Properties are shown for division, then, the equities can be worked out.
In collusion with the Defendant No.1, the Plaintiffs have purposefully omitted, and suppressed the other Properties of the family, and filed this
Suit for Plaint Schedule Item alone, to defeat the Sales in their favour.
Kalavathamma was only a Housewife. Her father Sanjanna was depending on the Defendant No.1, and had no other source of income. The Plaint Schedule Plot was purchased by the Defendant No.1 in a Lottery Scheme from the owners of the Land. He had paid the
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Installments as a Subscriber of the Scheme. Being an Employee, he took the Sale Deed, dated 13.12.1971, in the name of his wife Kalavathamma and her father Sanjanna, who are a benami for him. They had no capacity to buy it. To get over the Service Conditions, the Defendant No.1 had obtained a Gift Deed, dated 13.10.1972, from Sanjanna, in the name of his wife Kalavathamma nominally. Since the date of Purchase, the
Property has been in possession and enjoyment of the Defendant No.1 only, and it is his Property. He was its ostensible owner. He represented accordingly, and sold the Plaint Schedule Site to the Defendants No.2 to 4 under Sale Deeds, dated 07.09.2006. Prior to the said Sale Deeds, the
Defendant No.1 sold the Plaint Schedule Site to the husband of the
Defendant No.2, namely, M.Srinivasulu under an Agreement of Sale,
dated 24.08.2006, after receiving advance of Rs.1,00,000/-. The balance
of Rs.1,20,000/- was received on 07.09.2006. The total purchase was for
Rs.2,20,000/-. But, the Sale Deeds were taken for the value shown in the
Basic Value Register.
The Defendant No.1 had educated all the Plaintiffs, and got their marriages celebrated, by meeting all expenses, including dowry. To meet such family necessities, the Defendant No.1 sold the Plaint
Schedule Site, as the Manager and Kartha of the Joint Family, and the
Sales are valid and binding on the Plaintiffs. The husbands of the
Defendants No.2 to 4 are own brothers. The parents-in-law of the
Defendants No.2 to 4 are alive. They have jointly started the construction of three houses in the Plaint Schedule Plot soon after purchase. Except the finishing work like plastering, fixing of door frames, flooring, etc., the construction was completed, by spending more than Rs.10 Lakhs.
Though the Plaintiffs were aware of all the said facts, they had never objected, and are estopped from the same. They did not even refer to the
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Registered Sale Deeds or the constructions made already. The
Defendants No.2 to 4 are bonafide purchasers for value.
Even if the Plaintiffs have a share, they will be entitled for amount in the value of the site, by equalizing the shares, when the construction is completed. The Sales will not be invalid. The Plaintiffs will not have a share in the constructed building. The Defendant No.1 cannot appropriate the entire Sale Consideration, and the Plaintiffs cannot seek Partition, without accounting for the Sale consideration, from which they were also benefited. So, the Property shown in the
Schedule herein be brought for Partition along with the Plaint Schedule
Property, and equity be worked out, and the Plaint Schedule site be allotted to the share of the Defendants No.2 to 4 as purchasers. The Suit, as framed, is not maintainable. Hence, the Suit may be dismissed with exemplary costs.
6.The Plaintiff No.1 has filed the Rejoinder to the Additional
Written Statement of the Defendants No.2 to 4, and it was adopted by the Plaintiffs No.2 and 3. The Plaintiff No.1 had contended as follows:-
The allegations made in the Additional Written Statement are not completely correct. The Plaint Schedule Property, i.e., Plot No.15, was purchased by Smt. Kalavathamma and her father K.Sanjanna, who are employees and earning members, jointly under the Registered Sale
Deed, dated 13.12.1971, for valuable consideration from its owner,
K.Gangamma. During his lifetime, K.Sanjanna had gifted away his undivided half share in the said Plot to Kalavathamma under a
Registered Gift Deed, dated 13.10.1972, and delivered its possession to her. There is no truth in the allegation that they are benami transactions.
Kalavathamma has no Properties, other than the Suit Property, for being partitioned in the Suit. Even the house property shown in the Written
O.S.No.18 of 2008 7 A.S.C.J. Court, Kurnool.
Statement Schedule is the self acquired property of the Defendant No.1, who is alive, and it cannot be a subject for Partition in the Suit.
The Defendant No.2 cannot claim for equities. The
Defendants No.2 to 4 have suppressed material facts. Kalavathamma died in 1983, while she was in service. As the Plaintiffs were at tender age at that time, they were taken care of by their junior maternal grand mother, Smt.Rajamma, who had no issues of her own, with family pension got by them upon the death of their mother. Rajamma had brought up and educated the Plaintiffs, and performed their marriages with the service benefits of Kalavathamma, and the insurance amounts received upon her death. The Defendant No.1 did not take care of the
Plaintiffs, after his second marriage, and never spent any money for their welfare. The Suit Property remained in the joint possession and enjoyment, as the Defendant No.1 and the Plaintiffs are the husband and children of Kalavathamma. The Defendant No.1 never owned or possessed or pretended to be the absolute owner of the Suit Property.
Though the Defendants No.2 to 4 are aware of the rights of the Plaintiffs, they have entered into a stealthy deal with the Defendant No.1 to knock away the entire Suit Property. The Sales in favour of the Defendant No.2 to 4 are not valid, and are not binding so far as the shares of the
Plaintiffs are concerned. The Defendant No.1 never acted as Kartha for the joint family, for the benefit of the Plaintiffs.
The Plaint Schedule Property was a vacant site as on the date of filing of the Suit. Taking advantage of non-granting of Interim
Injunction, the Defendants No.2 to 4 have proceeded with the unlawful construction, without even obtaining the necessary approval from local body, with dishonest intention to claim equities. So, the Defendants No.2 to 4 cannot be permitted to take advantage of their own misdeeds.
O.S.No.18 of 2008 8 A.S.C.J. Court, Kurnool.
Unnecessary Properties are sought to be involved. There are no bonafides on the part of the Defendants No.2 to 4 in pleading for equities in the Suit Property. Hence, the Suit may be decreed, as prayed for in the Plaint, with costs.
7.Basing on the Additional Pleadings of both Parties, the then
Presiding Officer has framed the following Issues for Trial.
[1] Whether Plaintiffs have shown all the Properties for
Partition?
[2] Whether alleged Registered Sale Deeds in favour of
D2 to D4, and Agreement of Sale, dated 24.08.2006,
are true, valid and binding upon the Plaintiffs?
[3] Whether House Property in Schedule of Written
Statement is self acquired property of D1?
[4] Whether D2 is entitled to claim equities?
[5] Whether plea of Partial Partition is true?
8.As per the Docket Orders, dated 01.06.2016, this Court found that more Additional Issues have to be framed regarding the
Additional Pleadings taken by the both Parties. Hence, this Court had
framed the following Additional Issues on the same day.
[1] Whether the Defendant No.1 had purchased the Plaint
Schedule Property in the name of his wife
Kalavathamma and his father-in-law Sanjanna, who acted as his Benamis, as contended by the Defendants
No.2 to 4?
[2] Whether the Defendant No.1 had represented to the
Defendants No.2 to 4, that he is the ostensible owner
of the Suit Property, and sold the same to them?
[3] Whether the Defendant No.1 had sold the Plaint
Schedule Property as the Manager and Kartha of the
Joint Family, for family necessities, as pleaded by the
Defendants No.2 to 4?
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[4] Whether the Property shown in the Schedule of
Additional Written Statement can be subjected to
Partition in this Suit?
[5] Whether the Plaintiffs are having knowledge of the
Agreements of Sale, dated 24.08.2006, and Sale
Deeds, dated 07.09.2006, even prior to the filing of
the Suit, and suppressed the same in the Plaint?
[6] Whether the Plaint Schedule Property was a vacant site as on the date of filing of the Suit, as contended by the Plaintiffs?
[7] Whether the construction of the Buildings of the
Defendants No.2 to 4 was completed by the date of
filing of the Suit, as contended by them?
[8] Whether the Court Fees paid by the Plaintiffs is correct?
9.At the same time, this Court found that the Additional Issues
No.1 and 4, framed on 07.06.2013, have to be deleted and recasted, since the aspects therein were asserted by the Defendants No.2 to 4 in their Pleadings. Hence, on 01.06.2016, this Court had deleted the
Additional Issues No.1 and 4 framed on 07.06.2013, and recasted them
as follows:-
RECASTED ADDITIONAL ISSUES No.1 AND 4:- [1] Whether the Plaintiffs have not shown all the
Properties for Partition, as claimed by the Defendants
No.2 to 4?
[4] Whether the Defendants No.2 to 4 are entitled to claim the equities, as per their plea?
10.On behalf of the Plaintiffs, PW1 is examined, and Exs.A1 to
A21 are marked. On behalf of the Defendants No.2 to 4, DW1 is examined, and Exs.B1 to B5 are marked. After framing of the Additional
Issues on 01.06.2016, the Suit was posted for Additional Evidence. Then, the Plaintiffs got reported 'No Additional Evidence'. It was recorded on
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29.06.2016. On the same day, as there was no representation on the side of the Defendants No.2 to 4, it was deemed that they have no Additional
Evidence on their side.
11.Heard both sides. Perused the Written Arguments filed on behalf of both the Plaintiffs, and the Defendants No.2 to 4, and also the
Reply Written Arguments filed on behalf of the Plaintiffs.
12.Before going to discuss and decide the Issues and Additional
Issues framed in the Suit, this Court is inclined to look into the Evidence adduced by both Parties, to establish their respective contentions, and also the Arguments advanced on their behalf.
(a)To establish their case, the Plaintiffs have examined the
Plaintiff No.1, as PW.1, and got Exs.A1 to A21 marked on their behalf. In fact, Exs.A1 to A19 were marked on 12.03.2014. The Additional Chief
Affidavit of PW.1 was filed on 11.07.2014, and on 06.08.2014, the
Documents were marked again as Exs.A1 and A2. These Documents ought to have been marked as Exs.A20 and A21. To maintain seriatum, the Documents, which were marked as Exs.A1 and A2 on 06.08.2014, are renumbered as Exs.A20 and A21 respectively.
(b)PW.1 had deposed in her Chief Affidavit, on par with the averments in the Plaint. In her Cross Examination, PW.1 had deposed that after the death of her mother, her father married another lady, and did not look after the family, and they were brought up by their Maternal
Grand Mother; and that she does not know in which year, her father retired; and that she does not know the Salary particulars of her Grand
Mother; and that she does not know when her Grand Father Sanjanna had retired; and that except the Suit Schedule Property, her Maternal
Grand Father did not have any other Property; and that she did not make any independent enquiry about the Properties of the Defendant No.1
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mentioned in the Written Statement; and that there were three buildings in the Suit site, at the time of execution of the Warrant of Commissioner, and they were plastered, and flooring was not completed; and that she was not in physical possession of the said buildings after the Suit; and that they used to visit the site now and then; and that through the Reply
Notice, they came to know about the Sale of the Property to Defendants
No.2 to 4 by her father. She denied that when the Commissioner had visited the buildings, they were occupied by the Defendants No.2 to 4; and that for the sake of their education, their father sold the property; and that after completion of the studies, their father set up them, and got this Suit filed.
(c)To establish their contentions, the Defendants No.2 to 4 have examined the Defendant No.2, as DW.1, and got Exs.B1 to B5 marked on their behalf. In her Cross Examination, DW.1 deposed that her husband obtained an Agreement of Sale in his favour, in respect of the Property, and the Sale Deed was obtained in her name, and likewise, the husbands of the Defendants No.3 and 4 have obtained the Sale Deeds in the names of their wives respectively; and that herself and the
Defendants No.3 and 4 were not present at the time of negotiations and at the time of execution of Ex.B2; and that the Suit Property originally belongs to the wife of the Defendant No.1; and that the Defendant No.1 got the same after her death, and it was informed to them by the
Defendant No.1; and that she does not know whether Kalavathamma was appointed as Typist in 1967 itself; and that she does not know whether
Sanjanna worked as a Jawan; and that she does not know what happened to the share of Sanjanna; and that she does not know who is having custody of the original Ex.B1; and that at the time of purchase of the
Property, she enquired about the children of Defendant No.1 and
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Kalavathamma, and found that they have three children; and that the
Plaintiffs are the daughters of Kalavathamma, and when she asked
Defendant No.1 regarding the right of the Plaintiffs in the Suit Property, he informed that all his daughters i.e., Plaintiffs are married and are well settled, and they will not claim any share in the Suit Property, and he is the only legal heir of his wife and father-in-law; and that she does not know whether daughters are entitled for a share of the Property of their mother; and that at the time of purchase of the Property, the Suit
Property was vacant, and she obtained loan on 15.04.2008; and that she does not know whether the Plaintiffs issued any Legal Notice under
Original of Ex.A2, and whether they have issued any Reply Notice for the same; and that the construction of the houses was completed within one year, and even by the date of visit of the Advocate Commissioner, they were residing in their respective houses; and that their Houses are having Municipal Water Taps, and she does not know whether the Water
Tap connections were issued on 07.11.2009, 10.11.2009 and 05.10.2010 respectively; and that she does not know what are the other Properties owned by the Defendant No.1. She denied the even by the date of filing of the Suit, they did not commence the constructions; and that the construction of the house was commenced in the month of April, 2008; and that in order to deprive the share of the Plaintiffs in the Suit
Property, they colluded with the Defendant No.1, and purchased the Suit
Property under the Originals of Exs.B3 to B5, knowing well about the right of the Plaintiffs; and that the Defendant No.1 did not purchase the
Property in the name of his wife, as a Benami; and that as they have made constructions during the pendency of the Suit, inspite of Orders of
Interim Injunction, they are not entitled for any equities; and that the
Originals of Exs.B3 to B5 are not valid and binding on the Plaintiff.
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(d)The learned Counsel for Plaintiffs has argued, both orally and in the Written Arguments, that Kalavathamma and her father had purchased the Suit Property on 13.12.1971, and subsequently, her father Sanjanna gifted his share to Kalavathamma on 13.10.1972, and since then, Kalavathamma possessed the Suit Property with exclusive rights, and after her death in 1980, her husband i.e., the Defendant No.1 and Children, i.e., the Plaintiffs No.1 to 3 have succeeded to the same; and that when the Defendant No.1 tried to create documents, the Legal
Notice was issued by the Plaintiffs, and inspite of issuing a Reply Legal
Notice, the Defendants No.2 to 4 tried to make constructions, and as such, the present Suit was filed and inspite of existence of Interim
Injunctions, the Defendants No.2 to 4 proceeded the Suit, and the
Defendants No.2 to 4 have taken a plea of Benami transaction, which is not established, and thereafter they have taken the plea of partial partition, which does not arise, since the Written Statement Schedule
Property is a Self Acquired Property of the Defendant No.1, and during his lifetime, the Plaintiffs cannot claim any share in it; and that the plea of Ostensible Sale, is also not tenable, since the Plaintiffs never permitted the Defendant No.1 to sell the Property on their behalf; and that the very plea of Benami transaction is disproved from the fact that
Kalavathamma and Sanjanna are Employees, and were having much capacity to purchase the Property in their own name, and since the relationship is admitted, and as no cogent evidence is advanced to show that Kalavathamma did not have sufficient capacity, the recitals in the original of Ex.B1 and A1, have to be believed; and that as per Section 14 of the Hindu Succession Act, the Defendant No.1 and Plaintiffs No.2 and 3 will have equal share, and as Exs.B3 to B5 are not proved in accordance with Law, they are not valid, and binding on the Plaintiffs;
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and that as the Defendants made constructions during the pendency of the Suit, they are not entitled for equities, and the Defendants No.2 to 4 can be directed to restore Status-quo ante, and the relief has to be moulded, by directing the 3/4th share of the Plaintiffs be delivered to them by the Defendants No.2 to 4; and so, the Suit has to be decreed.
(e)The learned Counsel for the Defendants No.2 to 4 has argued in the Written Arguments that the Plaintiffs are not in possession and enjoyment of the Plaint Schedule Property, as on the date of filing of the Suit; and that as the Plaintiffs did not seek the relief of Declaration of the Sale Deeds, as null and void, and also the relief of Mandatory injunction for demolition of the Constructions raised by the Defendants
No.2 to 4, the Suit is not maintainable; and that as the Defendant No.1 claimed excessive rights as per the recitals in Exs.B3 to B5, the Benami transaction in favour of Kalavathamma and Sanjanna under the Original of Ex.B1 is proved; and that as all the Properties of the Defendant No.1, are not sought for Partition, the Suit is not maintainable, and the Court
Fee paid is also not correct, and the Suit is liable to be dismissed. He had relied upon the following Decisions in this regard.
(i)2014 [6] ALT 813, in the case of Kodali Rajendra Prasad and another, wherein it was held that a Suit for the relief of mere Mandatory Injunction, without seeking the relief of declaration of right, is not maintainable, when the right of Plaintiff to Property, on which the construction which is sought to be removed, is raised, is disputed by the Defendant.
(ii)2008 [1] A.P.L.J. 77 [SC], in the case of Thimmaiah Vs. Shabira and others, wherein it was held that the Plaintiff, who is not in possession of the Property, is not entitled to the relief of Permanent Injunction; and that the Suit is not maintainable without claiming recovery of possession; and that the Decree of Permanent Injunction, granted without deciding the question relating to possession, is not sustainable.
(iii) 1991 [1] A.P.L.J. 68 [2] [S.N.]., in the case of P.Nityanandha Reddy Vs. D.Subrahmanyam, wherein it was held that the Person claiming title to the Property is not entitled to the relief of temporary injunction on the basis of deemed possession in preference to the person in actual physical possession.
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(iv) 1987 [Supp] Supreme Court Cases 161, in the case of Bruce Vs. Silva Raj and others, wherein it was held that Injunction can be granted in favour of a person, only if he has possession of the Property; and that if he has no possession, the possession of the adversary having been confirmed, no Injunction can be granted.
(v)1989 [1] Current Civil Cases 128 [Karnataka], in the case of Narayan Mukund Shet Vs. Narayan Nagesh Shetty, wherein it was held that where the Plaintiff is not in possession on the date of the Plaint, the Property being in custody, having been attached under Section 145 of the Criminal Procedure Code, and pending suit, the possession was delivered to the Defendant by the Criminal Court, the Plaintiff cannot be granted an Injunction restraining the Defendant from interfering with his possession.
(vi)2002 [6] ALD 469, in the case of Mohd. Abdul Samad @ Arif Vs. Mirza Basheer Baig and others, wherein it was held that when the plea of the Petitioner/ Plaintiff is that the Defendant took forcible possession after filing of the Suit, then, the Petitioner has to file a separate application for direction to Defendant to deliver back the Property to him, and he cannot seek injunction, when he is not in possession.
(vii) [2009] 9 Supreme Court Cases 52, in the case of R.Mahalakshmi Vs. A.V.Anantharaman and others, wherein it was held that the earlier Partition Deed can be shown as a proof of schedule of Properties that needs to be partitioned.
(viii)2004 A.I.H.C. 2554 [Bombay High Court], in the case of Govindrao Gangaramji Ajmire Vs. Dadarao @ Shrawan Gangaramji Ajmire and others, wherein it was held that the general rule is that all the Joint Family Properties should be brought into common hotchpotch, and then, seek partition of the same; and that the Partial Partition of the Joint Family Properties is permissible in exceptional circumstances only.
(ix) 1993 [2] Madras Law Journal 676, in the case of Perumal Muthuraja Vs. Mookka Gounder and another, wherein it was held that in a Suit for Partition, the Plaintiff has omitted to include some items, and the Defendant referred to them in the Written Statement, and filed a Petition to direct the Plaintiff to include these items also in the Plaint Schedule, and it was dismissed; and the Revision preferred against the said Orders is allowed, directing to include the omitted items as part of the Suit Properties.
(f)In Reply, the learned Counsel for the Plaintiffs has filed
Reply Written Arguments, arguing that as the Sale Deeds executed by the Defendant No.1 in favour of Defendants No.2 to 4 are null and void to the extent of the share of the Plaintiffs No.1 to 3 is concerned, the
Plaintiffs need not seek the relief of Declaration of the Sale Deeds, as null and void; and that they have to be deemed to be in constructive possession of the Property, since the Suit Property was not partitioned as per Law in between the Plaintiffs and the Defendant No.1, prior to the
Sale of the Property in favour of the Defendants No.2 to 4, and as such,
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the Court Fee, paid by the Plaintiffs, is correct; and that when the
Defendants No.2 to 4 cannot claim any better title than his vendor, there is no need to amend the Suit for seeking Declaration or for Mandatory injunction; and that the Decisions mentioned by the learned Counsel for
Defendants No.2 to 4, are not applicable to this Case, since it is a Suit for
Partition; and that the Defendants No.2 to 4 did not file any proof to show that the Property mentioned in the Written Statement Schedule, is the Property purchased by the Defendant No.1 with the sale consideration given by them; and that in absence of such material evidence, the contentions of the Defendants No.2 to 4 cannot be believed, and hence, the Suit is to be decreed.
13. ADDITIONAL ISSUE No.2 framed on 07.06.2013, and
ADDITIONAL ISSUES No.1 to 3 framed on 01.06.2016:
[2] Whether the alleged Registered Sale Deeds in favour of
Defendants No.2 to 4, and Agreement of Sale, dated 24.08.2006, are true, valid and binding upon the
Plaintiffs?
& [1] Whether the Defendant No.1 had purchased the Plaint
Schedule Property in the name of his wife
Kalavathamma and his father-in-law Sanjanna, who acted as his Benamis, as contended by the Defendants
No.2 to 4?
[2] Whether the Defendant No.1 has represented to the
Defendants No.2 to 4 that he is the ostensible owner of
the Suit Property, and sold the same to them?
[3] Whether the Defendant No.1 had sold the Plaint
Schedule Property as the Manager and Kartha of the
Joint Family, for family necessities, as pleaded by the
Defendants No.2 to 4?
(a)Since these Issues are interdependent, they are taken up together, for the sake of convenient discussion.
O.S.No.18 of 2008 17 A.S.C.J. Court, Kurnool.
(b)It is clear from the contentions of both Parties that they admit that the Plaint Schedule Property belong to Kalavathamma, wife of the Defendant No.1. The claim of the Plaintiffs is that the Property was gifted to Kalavathamma as per the Plaint. But, the Defendants No.2 to 4 contended that the Defendant No.1 had purchased the Property, Benami in the name of Kalavathamma and Sanjanna; and later, Sanjanna gifted the Property to Kalavathamma, and Kalavathamma never exercised the rights exclusively; and that after the death of Kalavathamma, the
Defendant No.1 became entitled for the entire Property.
(c)As seen from the evidence of PW.1, she had clearly admitted that she had no personal knowledge about the Sale Deed, dated 13.12.1971; and that her grand mother told her about the said transaction. So, the oral evidence of PW.1 cannot be taken into consideration. In fact, the Plaintiffs did not file the Original Document, or the Certified Copy of the Registered Sale Deed, dated 13.12.1971. But, they have relied upon the Gift Deed in Ex.A1 much. As such, this Court felt it relevant to refer to Ex.A1. Ex.A1 is the Registration Extract of the
Registered Gift Deed, dated 13.10.1972, executed by K.Sanjanna, in favour of his elder daughter, namely, B.Kalavathamma. As per the recitals in the said Gift Deed, it is clearly mentioned that Kalavathamma and Sanjanna had purchased the Property on 13.12.1971 from
K.Gangamma; and that Sanjanna is gifting his half share in the said
Property in favour of Kalavathamma. So, under the original of Ex.A1,
Kalavathamma had got half share by virtue of Gift.
(d)Though the Sale Deed, dated 13.12.1971, is not filed by the Plaintiffs, its Registration Extract is filed by the Defendants No.2 to 4 as Ex.B1. Hence, this Court deemed it fit to refer to the Ex.B1 at this stage. Ex.B1 is the Registration Extract of the Registered Sale Deed,
O.S.No.18 of 2008 18 A.S.C.J. Court, Kurnool.
dated 13.12.1971, executed by K.Gangamma, in favour of K.Sanjanna
and his daughter, namely, Kalavathamma. As per the Schedule therein, it was executed in respect of Plot No.15, which is the Plaint Schedule
Property. So, it becomes clear that by virtue of the Sale Deed under the original of Ex.B1, Kalavathamma will be having half share, and Sanjanna will be having remaining half share in Plot No.15, i.e., the Plaint
Schedule Property. As per Ex.A1, Sanjanna had gifted his half share in the Property purchased on 13.12.1971, in favour of Kavalathamma. So it becomes clear that Kalavathamma got remaining half share of Sanjanna in the Plaint Schedule Property, by virtue of the Gift Deed under the original of Ex.A1. So, it can be said that Kalavathamma became the absolute owner of the Plaint Schedule Property, by virtue of Sale under the original of Ex.B1, and the Gift under the original of Ex.A1.
(e)It is the case of the Defendants No.2 to 4 that
Kalavathamma and Sanjanna had acted as Benamis of the Defendant
No.1, and they are Dependents of the Defendant No.1, by the date of
Ex.B1. But, they did not produce any evidence to establish the said contentions. In fact, in the recitals of Ex.B1, the occupation of Sanjanna is shown as 'Jawan in B.T. College', and the occupation of Kalavathamma is shown as 'Dependent on her husband'. So, Ex.B1 itself falsifies the contention of the Defendants No.2 to 4 that Sanjanna had no capacity to purchase the Property, and that he had acted as a Benami for the
Defendant No.1. Being an Employee, Sanjanna will have his own source of income, i.e., his Salary, to purchase the Property.
(f)Though Kalavathamma is described as 'dependent on husband', Exs.A20 and A21 show that she is an Employee even prior to the purchase of Property under the original of Ex.B1. Ex.A20 is the
Memorandum of the APPSC, bearing No.16254, dated 31.12.1966,
O.S.No.18 of 2008 19 A.S.C.J. Court, Kurnool.
regarding the Selection of Kalavathi B., to the Post of Typist, in the
Competitive Examinations conducted for the Group IV Services. Ex.A21 is the Proceedings of the Honourable District Collector & District
Magistrate, Kurnool in Rc.A.6. 26563, dated 06-09-1967, regarding
appointment of Kum. B.Kalvathi, as Typist, and her allotment to Revenue
Unit of Kurnool District. As per Ex.A20, Kalavathamma was selected for the post of Typist, and she was directed to attend along with Medical
Certificate and original Certificates before the District Collector and
Magistrate, Kurnool. As per Ex.A21, Kalavathamma was appointed as a
Typist in the District Collector's Office, Kurnool, on 06.09.1967. So, the
Documents in Exs.A20 and A21 show that even before marriage,
Kalavathamma was an Employee. So, Exs.A20 and A21 would falsify the recitals in Ex.B1, regarding the Kalavathamma being a dependent upon her husband. So, basing on Exs.A20 and A21, it can be said that even
Kalavathamma had her own independent source of income to purchase the Property from her Salary.
(g) Moreover, the Sale consideration is only Rs.1,000/-, and half of it would be Rs.500/-. An amount of either Rs.1,000/- or Rs.500/- each could have been easily secured by Sanjanna or his daughter
Kalavathamma, by the date of original of Ex.B1, on account of their employment. There is no evidence to show that Sanjanna and
Kalavathamma had no capacity to purchase the Plaint Schedule Property, covered under the Original of Ex.B1.
(h)As the Defendants No.2 to 4 took the specific plea that the Plaint Schedule Property was purchased by the Defendant No.1 in the name of his wife Kalavathamma, and his father-in-law Sanjanna, who acted as their Benamis, the burden lies very much upon the Defendants
No.2 to 4 to establish the same. But, they did not make any efforts in this
O.S.No.18 of 2008 20 A.S.C.J. Court, Kurnool.
regard. They did not even attempt to summon the Defendant No.1, to establish their contentions, with respect to the representations made by the Defendant No.1 at the time of execution of the Sale Deeds in their favour, and to establish that he had purchased the Property in the name of his wife and Sanjanna, by showing them as his Benamis.
(i)In fact, after the enforcement of the Benami
Transactions [Prohibition] Act, 1988, the very plea of the Defendants
No.2 to 4 is not at all tenable, since under the said Law, the Benami
Transactions are prohibited. Section 3 of the said Act deals with 'Prohibition of Benami Transactions'. Sub-section [1] provides that 'No person shall enter into any benami transaction'. Sub-Section [2] provides that 'Nothing in sub-section [1] shall apply to the purchase of property by any person in the name of his wife or unmarried daughter, and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.'
Section 4 of the Act deals with 'Prohibition of the right to recover property held benami'. Sub-section (1) provides that 'No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.' Sub-section (2) provides that 'No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.' Sub-section (3) provides that 'Nothing in this section shall apply, (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family;
O.S.No.18 of 2008 21 A.S.C.J. Court, Kurnool.
or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held the benefit of a other person for whom he is a trustee or towards whom he stands in such capacity.'
(j)A keen reading of both Sections 3 and 4 of the Benami
Transactions Act, 1988 shows that the Property purchased in the name of the wife cannot be treated as a Benami, and that no Suit can be filed, and no defence can be taken basing on the Benami Transactions. Applying the said provisions to this case, it can be said that the Defendants No.2 to 4 cannot be permitted to take the plea that Kalavathamma and
Sanjanna are the Benamis of the Defendant No.1. Such a plea is not even proved, as no evidence is produced by the Defendants No.2 to 4, to show that Kalavathamma and Sanjanna had no source of income to purchase the Property. It can be said that the recitals in Ex.B1, and the Exs.A20 and A21 would falsify the contention of the Defendants No.2 to 4 that
Kalavathamma and Sanjanna had no source of income, and that the
Defendant No.1 had purchased the Property in the name of his wife and father-in-law, as his Benamis.
(k)The other contention of the Defendants No.2 to 4 is that the Defendant No.1 had represented that he is the Ostensible Owner of the Suit Property; and that he had sold the Property, as Manager and
Kartha of the joint family, for his family necessities. Before discussing the aspect, it would be relevant to mention here that the Defendants No.2 to 4 did not deny the fact that the Plaintiffs are children of Kalavathamma and the Defendant No.1. When Ex.A1 clearly establishes that
Kalavathamma has become absolute owner of the Plaint Schedule
Property to the extent of half share, and Ex.B1 establishes that she is the owner of the remaining half share, then, in absence of any contrary
O.S.No.18 of 2008 22 A.S.C.J. Court, Kurnool.
evidence regarding Kalavathamma being acted as a Benami, as pleaded by the Defendants No.2 to 4, the recitals in the Sale Deed under the original of Ex.B1 that the Property was purchased by Kalavathamma, and later, her father had gifted his share to her under the Gift Deed under the original of Ex.A1, has to be believed. So, this Court is of the opinion that Kalavathamma has to be treated as an absolute owner of the Suit
Schedule Property, i.e., Plot No.15, by virtue of the originals of Ex.A1 and Ex.B1 respectively.
(l)There is no dispute regarding the death of
Kalavathamma in 1980, and that she had died intestate. It is clear that as per the provisions of Section 15[1][a] of the Hindu Succession Act, 1956, in the Property left by a female, who died intestate, her Sons, Daughters and Husband are entitled to get equal shares. In the present case, after the death of Kalavathamma, who died intestate, her husband i.e., the
Defendant No.1, and her children i.e., the Plaintiffs No.1 to 3 will be treated as her Legal Heirs and Legal Representatives, and they will succeed to her Property. So, each of the Plaintiffs No.1 to 3, and the
Defendant No.1 will have equal Shares in the Suit Schedule Property, and they will have 1/4th share each in the same.
(m)As seen from the original Written Statement filed by the
Defendants No.2 to 4, they did not specifically plead about the Plaintiffs' having knowledge about the Sale Transactions in their favour. They have taken a simple plea that by virtue of their Reply Legal Notice, they have informed the Plaintiffs about the purchase of the Property. But, in the
Additional Written Statement, the Defendants No.2 to 4 have taken a
specific plea that the Plaintiffs are aware of the Sale Transactions, even prior to the filing of this Suit. But, no iota of evidence is adduced by them, in this regard. So, when once the Plaintiffs and the Defendant No.1
O.S.No.18 of 2008 23 A.S.C.J. Court, Kurnool.
are held to be legal heirs of Kalavathamma, they will be having equal shares, i.e., 1/4th share each in the Suit Schedule Property. So, it can be said that the Defendant No.1 will not have any exclusive right to sell the
Suit Property, depriving the rights and shares of the Plaintiffs therein.
(n)It is clear from the evidence of PW.1 that after the death of their mother, they were looked after by their Maternal Grand Mother, and that the Defendant No.1 did not take care of them; and that he had married another woman, and had children through her. PW.1 had denied all suggestions that the Defendant No.1 had got them educated and performed their marriages. The burden is upon the Defendants No.2 to 4 to establish that the Defendant No.1 had represented to them that he is the Ostensible Owner of the Suit Property; and that he is selling the
Property as Kartha and Manager of the Joint Family Property, as pleaded by him in the Additional Written Statement. Inspite of framing Additional
Issues by the Court, the Defendants No.2 to 4 did not choose to let in any evidence in this regard.
(o)Section41 of the Transfer of Property Act deals with 'Transfer by ostensible owner'. It provides that 'Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property, and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.' As per the
Provisions of this Act, the Transferee must have taken reasonable care and acted in good faith, before purchasing the Property from the
Transferor that he had rights in the same. The burden is on the
Defendants No.2 to 4, to establish that the Defendant No.1 is the
O.S.No.18 of 2008 24 A.S.C.J. Court, Kurnool.
Ostensible Owner of the Plaint Schedule Property, with the express or implied consent of his Daughters, i.e., the Plaintiffs No.1 to 3 herein.
(p)It is relevant to refer to the recitals in Exs.B3 to B5, which are the Registered Sale Deeds, executed by the Defendant No.1 in favour of the Defendants No.2 to 4 respectively. The Defendants No.2 to 4 have produced the Registration Extracts of the Sale Deeds executed in their favour, as the Original Documents are apparently in the custody of
The Balaji Co-operative House Building Society Limited, Kurnool, in whose favour they had executed the Registered Mortgage Deeds under the Originals of Ex.A17. Ex.B3 is the Registration Extract of the
Registered Sale Deed, dated 07.09.2006, executed by the Defendant
No.1, in favour of the Defendant No.2. Ex.B4 is the Registration Extract of the Registered Sale Deed, dated 07.09.2006, executed by the
Defendant No.1, in favour of the Defendant No.3. Ex.B5 is the
Registration Extract of the Registered Sale Deed, dated 07.09.2006, executed by the Defendant No.1, in favour of the Defendant No.4.
(q) A keen perusal of the Deeds under Exs.B3 to B5 clearly shows that the Defendant No.1 had mentioned therein, as if the entire
Property was got by Kalavathamma, by virtue of the Gift Deed, dated 13.08.1972, and she got absolute rights therein, and after her death, he alone had got succession rights in the said Property. As seen from Exs.B3 to B5, there is no recital about the existence of the Plaintiffs, or their share or rights over the Property sold under the originals of Exs.B3 to
B5. So, the recitals in Exs.B3 to B5 clearly establish that the existence of the Plaintiffs was suppressed by the Defendant No.1 at the time of execution of the Registered Sale Deeds under the originals of Exs.B3 to
B5 in favour of the Defendants No.2 to 4 respectively. If really the
Defendant No.1 had informed the Defendants No.2 to 4 that he is the
O.S.No.18 of 2008 25 A.S.C.J. Court, Kurnool.
Ostensible Owner, and his daughters have permitted him to deal with the
Property as per his wish, then, he would have mentioned the same in the
Registered Sale Deeds, or atleast the Defendants No.2 to 4 would have insisted for mentioned the same in the recitals of the Sale Deeds. But, it does not done either by the Defendant No.1, or by the Defendants No.2 to 4. So, it means that the plea of the Defendants No.2 to 4 that the
Defendant No.1 had represented to them that he is the Ostensible Owner of the Property, is false.
(r)Further, it is also not mentioned in the recitals of the
Sale Deeds under the Originals of Exs.B3 to B5 respectively, that the
Property is being sold by the Defendant No.1 for the purpose of joint family necessities, or for the benefit of the joint family. Even the
Defendants No.2 to 4 did not produce any reliable evidence in this regard. So, in the absence of such specific recitals in the Documents, and any other supporting oral evidence, the mere contention of the
Defendants No.2 to 4 that the Defendant No.1 had acted as Kartha of family and sold the Plaint Schedule Property for his family necessities, cannot be believed.
(s)In fact, as seen from the evidence of PW.1, it was elicited that she studied up to M.A; and that the Plaintiff No.2 studied
Intermediate, and Plaintiff No.3 studied Degree; and that for the sake of their education, their father sold the Property, and the said suggestion was clearly denied by PW.1 in clear terms. It would be relevant to mention here that at the time of filing of the Suit, the age of the Plaintiff
No.1 was shown as 38 years. The age of the Plaintiff No.2 was shown as 36 years, and the age of the Plaintiff No.3 was shown as 34 years. The
Suit was filed on 31.12.2007, and it was registered on 18.01.2008. The
Sale Deeds under Exs.B3 to B5 were executed on 07.09.2006, i.e., about
O.S.No.18 of 2008 26 A.S.C.J. Court, Kurnool.
more than one year and four months prior to the registration of the Suit on 18.01.2008. So, the question of the Property being sold by the
Defendant No.1 for the educational necessities of the Plaintiffs No.1 to 3 does not arise, since their Studies would have been completed long back.
To be more clear, it can be said that a person would acquire M.A., at the age of 25 years, and Intermediate would be completed by 18 years, and
Degree will be obtained by 22 years. So, the very plea taken by the
Defendants No.2 to 4 that the Property was sold for educational necessities of Plaintiffs No.1 to 3, is falsified in this regard.
(t)Now, it is relevant to refer to Ex.B2, which is relied upon by the Defendants No.2 to 4. Ex.B2 is the Agreement of Sale, dated 24.08.2006, executed in favour of M.Srinivasulu, who is said to be the husband of the Defendant No.2, by the Defendant No.1, regarding Plot
No.15. A perusal of the said Document also shows that even in the said
Document also, the Defendant No.1 had claimed exclusive rights over the
Property, and he did not mention about the existence of the Plaintiffs, or their share in the Property agreed to be sold thereunder. Since Ex.B3 was executed in pursuance of Document under Ex.B2 is not much of help to the Defendant No.2. In fact, Defendant No.2 had deposed in her evidence as DW.1, that even the husbands of Defendants No.3 and 4 have obtained similar Agreements of Sale from Defendant No.1 prior to the execution of the Registered Sale Deeds under the originals of Exs.B4 and B5. But, the said Agreements of Sale are not filed by them before this Court. However, in view of the recitals in Exs.B4 and B5, non filing of the said Agreements of Sale, cannot be taken into consideration. When the very existence of the Plaintiffs was not disclosed even in Ex.B2, and when the Defendant No.1 has described himself as the Legal Heir of
Kalavathamma in Exs.B2 to B5, the contention of the Defendants No.2 to
O.S.No.18 of 2008 27 A.S.C.J. Court, Kurnool.
4 that they have enquired about the right of the Plaintiffs with the
Defendant No.1, and his claiming exclusive rights, cannot be believed.
(u)In her Cross examination, DW.1 had admitted that the
Plaintiffs are the daughters of the Defendant No.1 and Kalavathamma, as per her enquiry. But, when it was suggested that the Daughters will have equal rights in the Property, DW.1 has pleaded ignorance of the same. It is settled law that a Pleading of ignorance of Law, is not an
Excuse. Therefore, it can be said that the Defendants No.2 to 4 cannot claim any benefit on that ground.
(v)By virtue of the above discussion, this Court concludes and holds that the Defendants No.2 to 4 have failed to establish that the
Plaint Schedule Property was purchased by the Defendant No.1 in the name of his wife Kalavathamma and father-in-law Sanjanna, who acted as his Benamis; and that the Defendant No.1 had represented to them that he is the Ostensible Owner of the Plaint Schedule Property; and that the
Defendant No.1 had sold the said Property for family necessities, in the capacity of Manager and Kartha. This Court further concludes and holds that Kalavathamma alone had exclusive rights over the Suit Schedule
Property, by virtue of Exs.A1 and B1, and as such, the Defendant No.1 and the Plaintiffs No.1 to 3 will get equal rights and share, i.e., ¼ th share each in the Suit Property, after the death of Kalavathamma; and that the
Defendant No.1 will not have any exclusive right to sell the entire Suit
Schedule Property to the Defendants No.2 to.4; and that at best, the
Defendant No.1 can sell his share alone to them. Therefore, this Court also concludes and holds that the Plaint Schedule Property is the self acquired Property of Kalavathamma, and that the Agreement of Sale,
dated 24.08.2006, as well as the Sale Deeds, dated 07.09.2006, executed
by the Defendant No.1 in favour of the Defendants No.2 to 4, are not
O.S.No.18 of 2008 28 A.S.C.J. Court, Kurnool.
valid and binding on the Plaintiffs, to the extent of their 3/4th share together [i.e., ¼ thshare each] is concerned.
Hence, the Additional Issue No.2 framed on 07.06.2013 and
Additional Issues No.1 to 3 framed on 01.06.2016, are answered against
the Defendants No.2 to 4.
14. RECASTED ADDITIONAL ISSUE No.1, framed on
01.06.2016, ADDITIONAL ISSUE No.5 framed on 07.06.2013, and
ADDITIONAL ISSUE N o .4, framed on 01.06.2016 :
[1] Whether the Plaintiffs have not shown all the
Properties for Partition, as claimed by the
Defendants No.2 to 4?
&
[5] Whether Plea of Partial Partition is true?
& [4] Whether the Property shown in the Schedule of
Additional Written Statement can be subjected to
Partition in this Suit?
(a)For the sake of convenient discussion, and as these
Issues are interdependent, they are taken up together.
(b)The Defendants No.2 to 4 have contended that the
Written Statement Schedule Property is the Property of the Defendant
No.1; and that the Defendant No.1 owned several other Properties, which were not shown for Partition, and as such, the Suit is bad for seeking Partial Partition, and hence, the Suit is liable to be dismissed on that ground alone.
(c)In the evidence of PW.1, it was elicited that the Written
Statement Property is the Self Acquired Property of the Defendant No.1.
But, it was not suggested to PW.1 about the several Properties owned and possessed by Defendant No.1. No attempt was made by Defendants
No.2 to 4 to secure the particulars of the Properties owned by the
Defendant No.1, either at Hyderabad or at Kurnool. When the Written
O.S.No.18 of 2008 29 A.S.C.J. Court, Kurnool.
Statement Schedule Property is the Self Acquired Property of the
Defendant No.1, then, Plaintiffs cannot claim any share in it, during his lifetime. So, it can be said that the plea of Partial Partition, taken by the
Defendants No.2 to 4, would fall to ground.
(d)In fact, the Plaint Schedule Property is claimed to be the
Property of Kalavathamma, who is the mother of the Plaintiffs. PW.1 had deposed in clear terms that except the Plaint Schedule Property, her mother had no other Property, and that Sanjanna, who is the father of
Kalavathamma did not have any other Property. It is clear the Plaint
Schedule Property is claimed as the Property got by the Plaintiffs, through their mother. So, it can be said that the Plaintiffs can seek
Partition of the Property left by their mother, independently, without seeking the Partition of the Properties, said to have been owned by the
Defendant No.1, since the Plaintiffs cannot claim Partition of the same, during his lifetime. It is not the case of Defendants No.2 to 4 that the
Defendant No.1 is having ancestral Properties; and that the Plaintiffs are having share therein. In the absence of such plea or defence, the mere contention of the Defendants No.2 to 4 that the Suit is bad for Partial
Partition, cannot be believed.
(e)It would be relevant to mention here that the Decisions relied upon by the learned Counsel for the Defendants No.2 to 4, reported in [2009] 9 Supreme Court Cases 52, 2004 AIHC 2554 [Bombay
High Court] and 1993 [2] MLJ 676, are not applicable to this Suit, since the Plaintiffs have established that the Plaint Schedule Property is the
Sole Property left by their mother Kalavathamma; and that the Written
Statement Schedule Property and other Properties are the self acquired
Property of the Defendant No.1, in which the Plaintiffs cannot seek
Partition, during his lifetime. So, it can be said that the inclusion of the
O.S.No.18 of 2008 30 A.S.C.J. Court, Kurnool.
Self Acquired Properties of the Defendant No.1, in the Suit filed for
Partition of the Property left by the mother Kalavathamma, does not arise, and the same is not necessary.
(f)Hence, in view of the above discussion, this Court concludes and holds that the plea of the Defendants No.2 to 4 that the
Plaintiffs have not shown all the Properties for Partition, is not at all tenable under law, as Kalavathamma has not left any other Property, except the Plaint Schedule Property; and that the Plaintiffs have shown the sole Property of Kalavathamma in the Suit, seeking Partition of the same; and that the plea of Partial Partition, taken by the Defendants
No.2 to 4 is not true; and that the Property, shown in the Schedule of the
Additional Written Statement, cannot be subjected for Partition in this
Suit, since it is the Self Acquired Property of the Defendant No.1, which cannot be partitioned among the Plaintiffs during his lifetime.
Hence, Recasted Additional Issue No.1 framed on 01.06.2016, Additional Issue No.5 framed on 07.06.2013, and Additional
Issue No.4 framed on 01.06.2016, are answered against the Defendants
No.2 to 4.
15. ADDITIONAL ISSUE No.5, framed on 01.06.2016:
Whether the Plaintiffs are having knowledge of the
Agreements of Sale, dated 24.08.2006, and Sale Deeds,
dated 07.09.2006, even prior to the filing of the Suit,
and suppressed the same in the Plaint?
(a)It is the specific contention of the Defendants No.2 to 4 in their Additional Written Statement that the Plaintiffs are having knowledge of the Agreement of Sale, dated 24.08.2006, and the Sale
Deeds, dated 07.09.2006, even prior to the filing of the Suit, as Reply
Legal Notice was issued; and yet, they suppressed the same, and filed this Suit, and as such, the Suit is not maintainable for suppression of facts, and the Suit is liable to be dismissed on that ground alone.
O.S.No.18 of 2008 31 A.S.C.J. Court, Kurnool.
(b)As seen from the Plaint, it is clearly that the Plaintiffs have got issued a Notice, dated 11.12.2006, for amicable Partition; and that the Defendants No.2 to 4 have issued a Reply, dated 26.12.2006, with false allegations. In the Original Written Statement itself, the
Defendants No.2 to 4 have contended that they have issued a Reply
Notice, and the Plaintiffs are aware of their Purchases, dated 07.09.2006. It is clear from the evidence of PW1, that it was elicited from her that, through the contents in Reply Notice, they came to know about the Sale of Property to the Defendants No.2 to 4 by her father. But, it was not at all elicited from PW.1, or suggested to PW.1 that she and her sisters have knowledge about the Agreements of Sale in favour of the husbands of the Defendants No.2 to 4 respectively, and the Sale Deeds in favour of the Defendants No.2 to 4 respectively, even prior to the Receipt of the Reply Legal Notice issued by the Defendants No.2 to 4. In her
Cross Examination, DW1 had clearly deposed that she does not know whether the Plaintiffs have issued any Legal Notice, dated 11.12.2006, under the original of Ex.A2, to her and other Defendants prior to the filing of the Suit and that she does not whether they have issued any
Reply Legal Notice to the Plaintiffs. DW.1 had denied that she knows well about issuance of Legal Notice and Reply Notice; and that she had deposed false that she does not know the same. The evidence of DW.1 shows that she had gone back, beyond her Pleadings, regarding the
Exchange of Notices between the Plaintiffs and the Defendants No.2 to 4.
(c)It is very much relevant to refer to Exs.A2 to A5 in this regard. Ex.A2 is the Office Copy of the Legal Notice, dated 11.12.2006, got issued by the Plaintiffs to the Defendants No.1 to 4. As per the recitals therein, the Plaintiffs have stated that the Schedule Property is the Property of their mother, and that they are having ¼ th share each,
O.S.No.18 of 2008 32 A.S.C.J. Court, Kurnool.
along with the Defendant No.1; and that they came to know that the
Defendants are trying to create documents to deprive of their rights; and hence, they have demanded the defendant No.1 for partition. Nothing is mentioned in the Legal Notice that the Sales that are said to have been taken place already. Ex.A3 is the Four Postal Receipts, pertaining to
Ex.A2. Ex.A4 is the Postal Acknowledgement Card received from the
Defendant No.4. A perusal of the Suit Records shows that the Postal
Acknowledgement Card received from the Defendant No.2 is also filed along with the Plaint. But, it is not marked for the reasons best known to the Plaintiffs.
(d)Ex.A5 is the Reply Legal Notice, dated 26.12.2006, got issued by the Defendants No.2 to 4. As per the recitals therein, they have stated that they had purchased the Plaint Schedule Property under three
Sale Deeds, from the Defendant No.1 on 07.09.2006; and that when they made enquries about the title and ownership, he assured that he is the natural owner of the land, and that no one had any right whatsoever over the Plot, and stated the same in the Sale Deeds also; and that they are not aware of the allegations mentioned in the Notice, and that even after receiving the Notices, when they contacted the Defendant No.1, he informed them that the Plaintiffs have no right whatsoever; and that since the date of purchase of Plot, they have been in possession and enjoyment of the same; and that they are bonafide purchasers; and that the family disputes can be settled in between the father and daughters; and hence, the Plaintiffs are directed not to interfere with their possession and enjoyment of the Land.
(e)It is clear that the recitals in the Reply Notice in Ex.A5 falsifies the evidence of DW.1 that she had made enquiries at the time of purchase of the Property, and found that the Plaintiffs are the children of
O.S.No.18 of 2008 33 A.S.C.J. Court, Kurnool.
the Defendant No.1 and Kalavathamma; and that the Defendant No.1 had assured that they had no rights over the Property. Ex.A5 itself shows that no proper enquiry was made by the Defendants No.2 to 4 prior to the purchase of the Plaint Schedule Property from the Defendant No.1. As already stated supra, the Registered Sale Deeds, dated 07.09.2006, executed by the Defendant No.1, in favour of the Defendants No.2 to 4 respectively, contains specific recital that he is the sole Legal Heir of
Kalavathamma; and they do contain any recital regarding the existence of the Plaintiffs, or their rights as the Legal Heir of Kalavathamma. When the very existence of Plaintiffs No.1 to 3 was known to the Defendants
No.2 to 4, only after receiving the Legal Notice issued to the Defendants in Ex.A2, then, the question of the Defendants No.2 to 4, enquiring with the Plaintiffs about the Sale Deeds, does not arise.
(f)Further, no evidence is adduced by the Defendants No.2 to 4, regarding the manner in which the Plaintiffs were informed about the Sale Transactions being made by the husbands of Defendants No.2 to 4 under Agreement of Sale, dated 24.08.2006, respectively, or under the
Registered Sale Deeds, dated 07.09.2006, under the original of Exs.B3 to
B5. So, the contention of the Defendants No.2 to 4 that the Plaintiffs are having knowledge of the Agreement of Sale, dated 24.08.2006, and Sale
Deeds, dated 07.09.2006, even much earlier, cannot be believed.
(g)Even if it is considered otherwise, since Ex.A5 was issued on 26.12.2006, and as the present Suit was filed on 31.12.2007, and registered on 18.01.2008, it can be said that the Plaintiffs came to know about the transaction only after receiving the Reply Notice, and the same aspect was elicited from PW.1 in her evidence in clear terms. The evidence of PW.1 is not at all discredited in any manner. When there is no evidence on the part of the Defendants No.2 to 4, to show that the
O.S.No.18 of 2008 34 A.S.C.J. Court, Kurnool.
Plaint Schedule Property was purchased by them, after due intimation to the Plaintiffs, their contentions that the Plaintiffs are having knowledge of the Sale of the Plaint Schedule Property, cannot be believed.
(h)In view of the above discussion, this Court concludes and holds that the Plaintiffs are not having knowledge of the Agreements of Sale, dated 24.08.2006, and Sale Deeds, dated 07.09.2006, upto the date of receiving the Reply Legal Notice in Ex.A6.
Hence, the Additional Issue No.5, framed on 01.06.2016, is answered against the Defendants No.2 to 4.
16. ADDITIONAL ISSUES No.6 and 7, framed on 01.06.2016:
[6] Whether the Plaint Schedule Property was a vacant site as on the date of filing of the Suit, as
contended by the Plaintiffs?
[7] Whether the construction of the Buildings of the
Defendants No.2 to 4 was completed by the date of filing of the Suit, as contended by them?
(a)For the sake of convenient discussion, and as these
Issues are interdependent, they are taken up together.
(b)The Plaintiffs contended that as on the date of filing of the Suit, the Suit Property was a Vacant Site, and that on 18.12.2007, the
Defendants No.2 to 4 attempted to dig foundation pits, and they had thwarted their attempts, with the help of neighbours, and they have filed the present Suit for Partition and for Permanent Injunction, restraining the Defendants No.2 to 4 from making any constructions, or interfering with the possession and enjoyment of the Plaintiffs over the Plaint
Schedule Property. In the Plaint Schedule, the Plot No.15 alone is described. It is not specifically described, as to whether it is Vacant, or whether any Constructions were made in it. But, in Para No.3 of the
Plaint, it is specifically stated that on 18.12.2007, the Defendants No.2 to
O.S.No.18 of 2008 35 A.S.C.J. Court, Kurnool.
4 tried to dig foundation pits. So, as on 18.12.2007, there were no constructions in the same. Along with this Suit, the Plaintiffs have filed
I.A.No.12 of 2008 for Interim Injunction, restraining the Respondents/
Defendants No.2 to 4, from making any constructions in the Suit
Property. Due to floods of October, 2009, the entire Docket Orders were washed away, and are not visible, and only the Office Notes put up by the then O.S. Branch Clerk are visible, and the last Docket Order appeared to be dated 13.06.2008. On further perusal of the Suit Records, this
Court also found that on 10.11.2011, a Certified Copy of the Orders in
I.A.No.12 of 2008 was filed, and as per the Docket Order, dated 13.06.2008, it was mentioned as “Costs not paid. Respondents No.2 and 3 called absent. Counter not filed. Respondents No.2 and 3 set ex-parte.
Heard. Petition is allowed. No Costs.”. It appears from the said Docket and the Note therein, that the Respondent No.4/ Defendant No.4 had remained ex-parte therein, even earlier also, and the Petition against the
Respondent No.1/ Defendant No.1 was dismissed, as not pressed. So, it makes clear that due to failure of the Respondents No.2 and 3/
Defendants No.2 and 3 to file their Counter, they were set ex-parte, and
Interim Injunction was granted.
(c)Now, it is relevant to refer to Exs.A6 to A19, relied upon by the Plaintiffs. Ex.A6 is the Certified True Copy of Telegram Notice issued by the Plaintiff No.1 to the Defendant No.2 on 23.07.2008, duly issued by the Superintendent, B.S.N.L., Kurnool. The contents of the
Notice in Ex.A6 are “Medum. Under the Instructions of
A.Rajyalaxmidevi. In gross violation of Court Orders in I.A.12/08 in
O.S.18/08, yourself, and R3 and R4 are making illegal constructions in
the Suit Site. Stop it immediately. Detail Notice follows. Mohammed
Ishaq, Advocate.” A.Rajyalaxmidevi is the Plaintiff No.1 herein. Ex.A7 is
O.S.No.18 of 2008 36 A.S.C.J. Court, Kurnool.
the Receipt No.32, dated 24.07.2008, issued by the Superintendent,
B.S.N.L., Kurnool, regarding the issuance of the above said Certified
True Copy of the Telegram, dated 23.07.2008.
(d)Ex.A8 is the Office Copy of the Legal Notice, dated 24.07.2008, got issued by the Plaintiffs to the Defendants No.2 to 4. As per the recitals therein, it is stated that inspite of Interim Injunction granted in I.A.No.12 of 2008, the Defendants No.2 to 4 are proceeding with the constructions, in violation of the Court Orders; and hence, they are directed to stop the constructions immediately. Ex.A9 is the Three
Postal Receipts, pertaining to Ex.A8. Ex.A10 is the Three Unserved
Postal Covers returned from the Defendants No.2 to 4 respectively. Each of them are having Endorsement as 'Seven days Door Locked. Returned to Sender'. As seen from the particulars of the Address mentioned on the
Postal Covers in Ex.A9, it is clear that it is the same Address, which was given in the description of the Defendants No.2 to 4 in the Plaint. When the Defendants No.2 to 4 have received the Notices and Suit Summons at the very same address, then, their non receiving the Legal Notices issued under the original of Ex.A8, and the return of the Notices unserved with
Endorsements as 'Seven Days Door Locked', would clearly show that the
Defendants No.2 to 4 have intentionally avoided to receive the said
Notice, smelling the contents, as the Telegram Notice, under the original of Ex.A6 was already issued by the Plaintiff No.1 to the Defendant No.2.
(e)Ex.A11 is the Bunch of Four Photographs. Each of them shows that the House is under construction, and plastering is not done on the outer walls, and flooring is not done. They are also said to have been taken on 23.07.2008. Ex.A12 is the Xerox Copy of the Receipt,
dated 23.07.2008, issued by R.K. Digital Frames, Kurnool, regarding the
Photographs in Ex.A11. Ex.A13 is the Bunch of 33 Photographs
O.S.No.18 of 2008 37 A.S.C.J. Court, Kurnool.
pertaining to the Houses constructed in the Plaint Schedule Property, which show that subsequently, the Flooring was done and plastering was done, and the work was proceeded with. Ex.A14 is the Xerox Copy of the
Receipt, dated 01.10.2008, issued by R.K. Color Lab and Studio, Kurnool, regarding the Photographs in Ex.A13. When the Photographs in Ex.A13 are compared with the Photographs in Ex.A11, it clearly shows that there are quite improvements in the stage of constructions, making it clear that the Defendants No.2 to 4 have proceeded with the constructions, even after filing of the Suit, and passing of the Interim Injunction on 13.06.2008 in I.A.No.12 of 2008, in favour of the Plaintiffs.
(f)Ex.A15 is the Bunch of 14 Positive Photographs said to have been taken on 28.03.2009, which show that the entire construction was completed; and that it was occupied by some Persons. Ex.A16 is the
Xerox Copy of the Receipt, dated 28.03.2009, issued by R.K. Color Lab and Studio, Kurnool, pertaining to the Photographs in Ex.A15. When the
Photographs in Ex.A15 are compared with the Photographs in Ex.A13, it is clear that the Photographs in Ex.A13 show that the Houses were only white washed, while the Photographs in Ex.A15 show that Colour
Painting was done, and the Gate Frames and Wall Frames were all painted. The Photographs in Ex.A15 also show that the Defendants No.2 to 4 have made the constructions during the pendency of the Suit.
(g)Ex.A17 is the Bunch of Three Registration Extracts of the Registered Assignment Deeds, dated 15.04.2008, executed by the
Defendants No.2 to 4 [i.e., the Respondents No.2 to 4], in favour of The
Balaji Co-operative House Building Society Limited, Kurnool, respectively. As seen from the recitals in the said Documents, it is clear that each of the Defendants No.2 to 4 have mortgaged the respective
Portions of the Plaint Schedule Property, for Rs.1,50,000/-, on
O.S.No.18 of 2008 38 A.S.C.J. Court, Kurnool.
15.04.2008, for the purpose of construction of House in their respective
Portions. It means that the Defendants No.2 to 4 have mortgaged the
Plaint Schedule Property during the pendency of the Suit. Even in these
Documents, in the Schedule, the Property is described as a Vacant Site.
So, the contention of the Defendants No.2 to 4 that the entire Building was completed by the date of filing of the Suit, is falsified from the recitals in the Documents in Ex.A17.
(h)It is clear that the Documents in Ex.A17 would lend support to the contentions of the Plaintiffs that the Defendants No.2 to 4 have proposed to make constructions in the Plaint Schedule Property, only after 18.12.2007, by obtaining a Loan on 15.04.2008. When the
Property was vacant on 15.04.2008 as per the recitals in the Deeds in
Ex.A17, then, the question of the Constructions being completed and existing in the Suit Schedule Property, as on the date of filing of the Suit, i.e., 31.12.2007 would not at all arise. So, the defence of the Defendants
No.2 to 4 that the constructions were made even prior to the filing of the
Suit, is not correct, and it is a totally false plea. Even the oral evidence of
DW.1 that she had started construction of the House in the Plaint
Schedule Property, within one or two months from the date of Purchase under the originals of Exs.B3 to B5; and that the construction was completed within one year; and that except Painting work, the remaining work was completed by the date of filing of the Suit, is totally falsified from the recitals in Ex.A17.
(i)Ex.A18 is the Endorsement, dated 30.04.2013, issued by the Public Information Officer and Assistant City Planner, Kurnool
Municipal Corporation, Kurnool. As seen from the recitals therein, it was issued to the Plaintiff No.1, in pursuance of the Application submitted by her under the Right to Information Act. It is clearly stated therein, that
O.S.No.18 of 2008 39 A.S.C.J. Court, Kurnool.
the residents of Plot No.15 did not take any Permission for construction of the Building from their Office. Ex.A18 makes it clear that without taking any prior permission or approval of planning from the concerned
Authorities, the Defendants No.2 to 4 have proceeded with the constructions in the Plaint Schedule Property.
(j)Ex.A19 is the Endorsement, dated 12.06.2013, issued by the Information Officer and Municipal Engineer, Engineering Section,
Kurnool Municipal Corporation, to the Plaintiff No.1. As per the recitals therein, the Defendants No.2 to 4 have obtained Water Tap Connections on 07.11.2009, 10.11.2009 and 05.10.2010 respectively. Even this
Endorsement was obtained by the Plaintiff No.1, by submitting an
Application under Right to Information Act. So, Ex.A19 makes it clear that during the pendency of the Suit itself, the Defendants No.2 to 4 have obtained Water Tap Connections.
(k)In fact, DW.1 had admitted in her Cross examination that they did not apply for Permission from the Municipal Corporation
before constructing the House, as her husband was informed by
somebody that the Property is situated in Industrial Estate; and that
Permission will not be given for constructing the House in the Industrial
Estate area. DW.1 had even pleaded ignorance of the issuance of Legal
Notice in Ex.A2, and the Reply Notice under Ex.A5. As already stated supra, the evidence of DW.1 that the construction was completed and the
Houses existed in the Suit Property, as on the date of filing of the Suit, is falsified from the recitals in the Documents in Ex.A17 itself.
(l) DW.1 had gone to the extent of stating in her evidence, that by the time of the visit of Advocate Commissioner to the Suit
Schedule Property, they were residing in their respective Houses. Now, it is relevant to refer to the Report of the Advocate Commissioner,
O.S.No.18 of 2008 40 A.S.C.J. Court, Kurnool.
though it is not marked, as it forms part of the Suit Records. As seen from the Report of the Advocate Commissioner, he had visited the Suit property on 01.10.2008 at about 10.30 hours, and the Counsel for
Petitioner and the Counsel for Defendants were present; and he had found that the Suit Schedule Site was covered with three buildings, marked as ABCD in total, and each building was noted as ADEF, FEGH and GHCB, and they were in unfinished stage, and the buildings were white washed in single quote, and nobody is in occupation of any of the three Portions. So, as on the date of visit of the Commissioner itself, i.e., 01.10.2008, the buildings were under unfinished stage, and are under construction. In view of the Report of the Advocate Commissioner, it can be said that the plea of the Defendants No.2 to 4 that the Buildings existed in the Suit Schedule Property, even by the date of filing of the
Suit, is falsified. On the other hand, the recitals in Ex.A6 and A8, as well as the Photographs in Exs.A11, A13 and A15, clearly show that the
Defendants No.2 to 4 have proceeded with the construction of the
Houses in the Plaint Schedule Property, during the pendency of the Suit, inspite of passing of Injunction Orders in I.A.No.12 of 2008.
(m)By virtue of the above discussion, this Court concludes and holds that the Plaintiffs have established that the Suit Property was
Vacant Site as on the date of filing of the Suit, and that the Defendants
No.2 to 4 have proceeded with the construction of the Houses in the
Plaint Schedule Property during the pendency of the Suit; and that the plea of the Defendants No.2 to 4 that the Buildings were completed by the date of filing of the Suit, is falsified from the recitals in Ex.A17 and the Report of the Advocate Commissioner.
Hence, Additional Issue No.6 is answered in favour of the
Plaintiffs, and Additional Issue No.7 is answered against the Defendants
No.2 to 4.
O.S.No.18 of 2008 41 A.S.C.J. Court, Kurnool.
17. RECASTED ADDITIONAL ISSUE No.4, framed on 01.06.2016:
Whether the Defendants No.2 to 4 are entitled to
claim the equities, as per their plea?
(a)The Defendants No.2 to 4 have contended that they are entitled for equities, since they have purchased the Property under the bonafide belief that the Defendant No.1 is its absolute owner, and as
Plaintiffs did not stop the constructions at the initial point of time. But, their contentions are falsified from the Records. The Photographs in
Exs.A11, A13 and A15 clearly show that there were improvements in the stage of the construction of the buildings, and that the stage varied in each of the Photographs, which clearly show that during the pendency of the Suit itself, the Defendants No.2 to 4 have started making constructions in the Suit Property, inspite of passing of Interim
Injunction Orders in I.A.No.12 of 2008. Inspite of issuance of Telegram
Notice under the original of Ex.A6 on 23.07.2008, and the Legal Notice under Ex.A8, the Defendants No.2 to 4 have proceeded to make constructions in the Property. It is also clear that inspite of the claim of the Plaintiffs, that they have having share in the Plaint Schedule
Property, by way of Legal Notice under the original of Ex.A2, prior to the filing of the Suit, and by filing this Suit, the Defendants No.2 to 4 have proceeded to mortgage the Plaint Schedule Property under the Originals of the Documents in Ex.A17, to obtain Loans for the purpose of construction of the Houses in the same. Ex.A17 shows that the Mortgage was specifically made during the pendency of the Suit.
(b)It is clear from the evidence of DW.1 regarding completion of the construction of the house, even by the date of filing of the Suit, is falsified from the Documents in Ex.A6, A8, A11, A13, A15 and
O.S.No.18 of 2008 42 A.S.C.J. Court, Kurnool.
A17, as well as the Report of the Advocate Commissioner. It is clear that the Defendants No.2 to 4 have proceeded with the construction of the
Houses, inspite of existence of Interim Injunction, dated 13.06.2008, existing against them, during the pendency of the Suit. It is also clear from the earlier discussion, that the Defendants No.2 to 4 did not make any proper enquiry, before purchasing the Plaint Schedule Property from the Defendant No.1, and did not verify about the rights of the Plaintiffs.
So, the plea of bonafide purchaser, taken by the Defendants No.2 to 4, is falsified from their own conduct. Having made constructions during the pendency of the Suit, inspite of the Injunction granted on 13.06.2008 in
I.A.No.12 of 2008, the Defendants No.2 to 4 cannot claim any equities.
(c)In view of the above discussion, this Court concludes opinion that the Defendants No.2 to 4 are not at all entitled to claim any equities, as prayed for by them.
Hence, this Recasted Additional Issue No.6 is answered against the Defendants No.2 to 4.
18. ADDITIONAL ISSUE N o .8:
Whether the Court Fee paid by the Plaintiffs is correct?
(a)The Defendants No.2 to 4 have contended that since the
Plaintiffs are not in physical possession and enjoyment of the Plaint
Schedule Property, as on the date of filing of the Suit, the Court Fee paid by them, is not correct. As seen from the Plaint, the Plaintiffs have clearly claimed that the Market Value of the Suit Property is
Rs.1,75,000/- and their 3/4th share is Rs.98,437/-, and as joint possession is pleaded, a fixed Court Fee of Rs.200/- is paid under Section 34[2] of
A.P.C.F and S.V. Act. The relief of Permanent Injunction was notionally valued at Rs.5,000/-, and a Court Fee of Rs.411/- was paid on the same, accordingly under Section 26 [c] of A.P.C.F. and S.V. Act.
O.S.No.18 of 2008 43 A.S.C.J. Court, Kurnool.
(b)As already discussed earlier, the Plaint Schedule
Property is the Property of Kalavathamma, who is the mother of the
Plaintiffs. So, after her death, the Plaintiffs and the Defendant No.1 will get equal rights. Even if the Defendant No.1 executed any Document in respect of the entire Plaint Schedule Property, then, it will not be valid to the extent of the shares of the Plaintiffs is concerned. So, when the
Documents are not valid regarding the share of the Plaintiffs, then, the possession claimed by the Defendants No.2 to 4, by virtue of such invalid
Documents, under the originals of Exs.B3 to B5, is also not valid, and they cannot be said to have got into exclusive possession, by virtue of the said Documents. Since the Plaintiffs and the Defendant No.1 are co- sharers in the Plaint Schedule Property, the possession of the Defendants
No.2 to 4, who had purchased it from the Defendant No.1, has to be treated as that of Co-sharers, and their possession has to be deemed to be joint possession. So, it can be said that the Plaintiffs can claim
Partition, even without seeking nullification of the illegal Sale Deeds, since they are not valid, and are not binding on them, so far as the extent of the shares of the Plaintiffs is concerned. As such, this Court is of the opinion that the Court Fee paid under Section 34[2] of the A.P.C.F. and
S.V. Act is correct.
(c)Regarding the relief of Permanent Injunction, it is settled law that the said relief will be notionally valued by the Plaintiff, and it can be accepted or enhanced by the Court, at the time of registration of the Suit. As seen from the Plaint, the then Presiding
Officer had accepted the notional value given by the Plaintiffs for the relief of Permanent Injunction. So, this Court is of the opinion that the
Court Fee paid by the Plaintiffs, under Section 26[c] of the A.P.C.F. and
S.V. Act, is correct.
O.S.No.18 of 2008 44 A.S.C.J. Court, Kurnool.
(d)In view of the above discussion, this Court concludes and holds that the Court Fee, paid by the Plaintiffs, for the relief of
Partition and for the relief of Permanent Injunction, is correct.
Hence, this Additional Issue No.8 is answered in favour of the Plaintiffs.
19. ISSUE N o .1:
Whether the Plaintiffs are entitled for Partition and separate possession of their 1/4th share each in the
Plaint Schedule Property?
(a)It is discussed and held supra, that the Plaintiffs and
Defendant No.1 are the Legal Heirs and Representatives of
Kalavathamma; and that they are entitled for ¼ th share each in the Plaint
Schedule Property; and that the possession of the Defendant No.1 is the possession of the Defendant No.1 and the Plaintiffs together; and that the Defendant No.1 cannot claim any exclusive possession over the Plaint
Schedule Property to the detriment of the rights and shares of his children, i.e., the Plaintiffs. The very act of the Defendant No.1 in selling the Plaint Schedule Property to the Defendants No.2 to 4, without even disclosing about the existence of the Plaintiffs, by claiming to be the sole
Legal Heir and Representative of Kalavathamma, in the recitals of the
Registered Sale Deeds under the originals of Exs.B3 to B5, without obtaining any consent from the Plaintiffs, or informing them, clearly shows his intention to deprive the Plaintiffs of their legitimate shares in the Plaint Schedule Property. The Registered Sale Deeds, dated 07.09.2006, executed by the Defendant No.1 in favour of the Defendants
No.2 to 4, will be valid only to the extent of 1/4th share of the Defendant
No.1 is concerned, and they will not be valid to the extent of the remaining 3/4th share of the Plaintiffs. Such partially invalid and void
Documents do not confer any better or exclusive or absolute Title upon
O.S.No.18 of 2008 45 A.S.C.J. Court, Kurnool.
the Defendants No.2 to 4 regarding the entire Plaint Schedule Property.
(b) During the course of Arguments, the learned Counsel for Plaintiffs has argued that the relief can be moulded by the Court, and that the Defendants No.2 to 4 can be directed to maintain Status Quo
Ante, i.e., position as on the date of filing of the Suit, by removing the
Houses constructed by them. After going through the recitals in the
Plaint, this Court is of the opinion that since the Suit is for Partition, there is no necessity for moulding the relief at present, and that there is no need for granting any Status Quo Anti, sought for by the Plaintiffs.
(c)It is clear that being the Legal Heirs of Kalavathamma, the Plaintiffs and the Defendant No.1 will get ¼ th share each in the Plaint
Schedule Property under Section 15[2] of the Hindu Succession Act, as discussed earlier. The Plaintiffs No.1 to 3 will be entitled for ¾ th [¼ + ¼ + ¼] share in the Plaint Schedule Property, while the Defendant No.1 will be entitled for the ¼th share in the same. Since the Defendants No.2 to 4 have purchased the Plaint Schedule Property from the Defendant
No.1, under the originals of Exs.B3 to B5, and as their purchase will be valid only to the extent of the ¼ th share of the Defendant No.1, it can be said that the Defendants No.2 to 4 are entitled for ¼ th share of the
Defendant No.1 in the Plaint Schedule Property.
(d)In view of the above discussion, this Court concludes and holds that the Plaintiffs are entitled for Partition and separate possession of their 1/4th share in the Plaint Schedule Property, as prayed for by them.
Hence, the Issue No.1 is answered in favour of the Plaintiffs.
20. ISSUE No.2:
Whether the Plaintiffs are entitled for Permanent
Injunction, as claimed?
O.S.No.18 of 2008 46 A.S.C.J. Court, Kurnool.
(a)The Plaintiffs have sought for the relief of Permanent
Injunction, restraining the Defendants No.2 to 4, and their men and agents, from making any constructions in the Plaint Schedule Plot, or in any way interfering with their peaceful possession of the Plaint Schedule
Plot. It is clear that the Defendants No.2 to 4 have constructed Three
Houses in the Plaint Schedule Property, even as per the admission of the
PW1, and as per the Report of the Advocate Commissioner. Likewise, it is clear from the Documents in Exs.A8, A11 and A13 that the Defendants
No.2 to 4 have proceeded, and completed the construction of three
House Buildings in the Plaint Schedule Property, during the pendency of the Suit, inspite of granting Injunction in I.A.No.12 of 2008, as per
Orders, dated 13.06.2008. So, it can be said that the relief of Permanent
Injunction, with respect to restraining the Defendants No.2 to 4 from making any constructions in the Plaint Schedule Property has become infructuous, and therefore, it cannot be granted.
(b) PW.1 has deposed that she does not know that the
Defendants No.2 to 4 are still in possession and enjoyment of the three
Buildings; and that she is not in physical possession of the three buildings after the Suit. It was elicited from DW.1 that herself and the
Defendants No.3 and 4 are residing in the Houses constructed by them in the Plaint Schedule Property, in the extent as described in their respective Sale Deeds, executed by the Defendant No.1. When this Court has concluded that the Defendants No.2 to 4 are entitled for 1/4th share in the Plaint Schedule Property, and that the Plaintiffs are entitled for the remaining 3/4th share in the Plaint Schedule Property, it can be said that the Defendants No.2 to 4 and the Plaintiffs are Co-sharers in the
Plaint Schedule Property. It is settled law that possession of one Co- sharer shall be deemed to be possession of all the Co-sharers in the
O.S.No.18 of 2008 47 A.S.C.J. Court, Kurnool.
Plaint Schedule Property. So, it can be said that the relief of Permanent
Injunction to restrain the Defendants No.2 to 4 from interfering with the possession and enjoyment of the Plaintiffs in the Plaint Schedule
Property cannot be granted, in view of the settled law that Injunction cannot be granted against the Co-owners and Co-sharers. Further, as the
Defendants No.2 to 4 are claiming to be residing in the Houses constructed by them in the Plaint Schedule Property, this Court is of the opinion that the relief of Permanent Injunction, as sought for by the
Plaintiffs, cannot be granted.
(c)It is relevant to mention here that among the Decisions relied upon by the learned Counsel for the Defendants No.2 to 4, the
Decisions reported in 2008 [1] APLJ 77 [SC] and 1989[1] Current Civil
Cases 128 [Karnataka High Court] pertain to the Suit for Permanent
Injunction, while the Decisions reported in 199[1] APLJ 68[2] [SN], 1987 [Supp] Supreme Court Cases 161 and 2002 [6] ALD 469 pertain to
Injunction granted under Order 39, Rule 1, CPC. So, this Court is of the humble opinion that the principles of law, laid down therein, cannot be applied to this Case, since the Plaintiffs and the Defendants No.2 to 4 are held to the Co-sharers in the Plaint Schedule Property. Even the Decision reported in 2014 [6] ALT 813, where the Suit for Mandatory Injunction, without relief of declaration of right, was held to be not maintainable, as the right of the Plaintiff is disputed by the Defendant, is not applicable to this Case, as this Suit is only for Partition and Permanent Injunction, and as the facts and circumstances of both cases are entirely different.
(d)By virtue of above discussion, this Court concludes and holds that the relief of Permanent Injunction, as prayed for by the
Plaintiffs, cannot be granted.
Hence, the Issue No.2 is answered against the Plaintiffs.
O.S.No.18 of 2008 48 A.S.C.J. Court, Kurnool.
21. ISSUE N o .3: To what relief?
(a)Since the Issue No.1 is answered, holding that the
Plaintiffs are entitled for 1/4th share each in the Suit Property, and that the Defendant No.1 is entitled for 1/4th share, and that the Defendants
No.2 to 4 will be entitled for the 1/4th share of the Defendant No.1, as they had purchased the Property from him under Registered Sale Deeds; and since the Issue No.2 is held against the Plaintiffs, holding that they are not entitled for Permanent Injunction, as prayed for by them, this
Court is of the opinion that the Suit is liable to be Preliminarily decreed, with respect to the relief of Partition, and that the Suit is liable to be dismissed with respect to the relief of Permanent Injunction.
(b)In the result, the Suit is Preliminarily decreed with costs, holding that the Plaintiffs No.1 to 3, and the Defendant No.1 are entitled for 1/4th share each in the Plaint Schedule Property; and that the
Defendants No.2 to 4, who had purchased the Property from the
Defendant No.1, are entitled for the 1/4th share of the Defendant No.1; and that the Defendants No.2 to 4 are directed to partition the Plaint
Schedule Property into 4 equal shares, and to allot 3 such shares to the
Plaintiffs No.1 to 3 together, and to retain the remaining 1/4th share towards their share; and that the Suit regarding the relief of Permanent
Injunction against the Defendants No.2 to 4 is dismissed.
Dictated to the Stenographer, transcribed and typed by her,
corrected and pronounced by me in the Open Court, on this the 30 th day of November, 2016.
ADDITIONAL SENIOR CIVIL JUDGE,
KURNOOL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFFS
P.W.1: Smt. A. Rajyalakshmi Devi.
O.S.No.18 of 2008 49 A.S.C.J. Court, Kurnool.
EXHIBITS MARKED ON BEHALF OF THE PLAINTIFFS
Ex.A1: Registration Extract of the Registered Gift Deed, dated 13.10.1972, executed by K.Sanjanna, in favour of his elder daughter, namely, B.Kalavathamma.
Ex.A2: Office Copy of Legal Notice, dated 11.12.2006, got issued by the
Plaintiffs to the Defendants No.1 to 4.
Ex.A3: Four Postal Receipts, pertaining to Ex.A2.
Ex.A4: Postal Acknowledgement Card received from the Defendant No.4.
Ex.A5: Served Copy of Reply Notice, dated 26.12.2006, got issued by the
Defendants No.2 to 4, for the Legal Notice in Ex.A2.
Ex.A6: Certified True Copy of the Telegraphic Notice, dated 23.07.2008, got issued by the Plaintiff No.1 to the Defendant No.2, duly issued by the Superintendent, B.S.N.L., Kurnool on 24.07.2008.
Ex.A7: Receipt No.32, dated 24.07.2008, issued by the Superintendent,
B.S.N.L., Kurnool.
Ex.A8: Office Copy of the Legal Notice, dated 24.07.2008, got issued by the Plaintiffs to the Defendants No.2 to 4.
Ex.A9: Three Postal Receipts, pertaining to Ex.A8.
Ex.A10: Three Unserved Postal Covers, returned from the Defendants
No.2 to 4.
Ex.A11: Bunch of Five Positive Photographs, dated 23.07.2008.
Ex.A12: Xerox Copy of Bill, dated 23.07.2008, issued in the name of the
Plaintiff No.1, by R.K. Digital Frames, Kurnool.
Ex.A13: Bunch of 33 Positive Photographs, dated 01.10.2008, pertaining to the Houses constructed by the Defendants No.2 to 4 in the
Plaint Schedule Property.
Ex.A14: Xerox Copy of the Bill, dated 01.10.2008, issued in the name of the Plaintiff No.1, by R.K. Color Lab & Studio, Kurnool.
Ex.A15: Bunch of 14 Positive Photographs taken on 28.03.2009.
Ex.A16: Xerox Copy of the Bill, dated 28.03.2009, issued by R.K. Color
Lab & Studio, Kurnool.
Ex.A17: Three Registration Extracts of the Registered Assignment
Deeds, dated 15.04.2008, executed by the Defendants No.2 to 4 in favour of The Balaji Co-operative House Building Society
Limited, Kurnool respectively.
Ex.A18: Endorsement of the Municipal Corporation, dated 30.04.2013, issued to the Plaintiff No.1, by the Public Information Officer &
Assistant City Planner, Kurnool Municipal Corporation, Kurnool.
O.S.No.18 of 2008 50 A.S.C.J. Court, Kurnool.
Ex.A19: Endorsement of the Municipal Corporation, dated 17.06.2013, issued to the Plaintiff No.1, by the Information Officer and
Municipal Engineer, Engineering Section, Kurnool Municipal
Corporation, Kurnool.
Ex.A20: Memorandum of the APPSC, bearing No.16254, dated 31.12.1966, regarding the Selection of Kalavathi B., to the Post of Typist, in the Competitive Examinations conducted for the
Group IV Services.
Ex.A21: Proceedings of the Honourable District Collector & District
Magistrate, Kurnool in Rc.A.6. 26563, dated 06-09-1967,
regarding appointment of Kum. B.Kalvathi, as Typist, and her allotment to Revenue Unit of Kurnool District.
[Though Exs.A20 & A21 were marked as Exs.A1 and A2 again, through PW.1 on 06.08.2014, in order to maintain seriatum, they are re-numbered as Exs.A20 and A21 today.]
WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS No.2 TO 4
D.W.1: Smt. M.Vijayalakshmi.
EXHIBITS MARKED ON BEHALF OF THE DEFENDANTS No.2 TO 4
Ex.B1: Registration Extract of the Registered Sale Deed, dated 13.12.1971, executed by K.Gangamma, in favour of K.Sanjanna and his daughter, namely, Kalavathamma.
Ex.B2: Agreement of Sale, dated 24.08.2006, executed in favour of
M.Srinivasulu by A.Thirupalaiah [i.e., the Defendant No.1], regarding Plot No.15.
Ex.B3: Registration Extract of the Registered Sale Deed, dated 07.09.2006, executed by the Defendant No.1, in favour of the
Defendant No.2.
Ex.B4: Registration Extract of the Registered Sale Deed, dated 07.09.2006, executed by the Defendant No.1, in favour of the
Defendant No.3.
Ex.B5: Registration Extract of the Registered Sale Deed, dated 07.09.2006, executed by the Defendant No.1, in favour of the
Defendant No.4.
ADDITIONAL SENIOR CIVIL JUDGE,
KURNOOL.