Ch. Purushotham Kumar

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IN THE COURT OF THE FAMILY-CUM-IX ADDL. DISTRICT

JUDGE, EAST GODAVARI DISTRICT AT

RAJAMAHENDRAVARAM.

PRESENT:- Purushottam Kumar Chintalapudi

Judge,

Family Court-cum-Addl. District & Sessions Judge

Wednesday the 29th day of June, 2016

Appeal Suit Nos.183/2007 and 203/2007

Between: (AS No.183/2007) 1.Garapati Sowjanya. 2.Garapati Somasekhara Rao (died). 3.Garapati Lakshmi Kantham. … Appellants.

And

Anaparthi Venkata Ramana Murthy. … Respondent.

Appeal against the decree and Judgment dated

5.2.2007 passed by the Senior Civil Judge,

Ramachandrapuram in O.S.No.67/1999 made in

Between: Garapati Sowjanya. … Plaintiff.

And

1.Anaparthi Venkata Ramana Murthy.

2.Garapati Somasekhara Rao. ... Defendants.

Between: (AS No.203/2007) 1.Garapati Somasekhara Rao (died) 2.Garapati Sowjanya. (Being minor rep. by mother and natural Guardian Garapati Lakshmi Kantham) 3.Garapati Lakshmi Kantham. (Added as party as per orders in I.A.No.153/2016 Dt.28.3.2016). … Appellants.

And

Anaparthi Venkata Ramana Murthy. … Respondent.

Appeal against the decree and Judgment dated 5.2.2007

passed by the Senior Civil Judge, Ramachandrapuram in

O.S.No.158/2002 made in

Anaparthi Venkata Ramana Murthy. .. Plaintiff.

And

1.Garapati Soma Sekhara Rao. 2.Garapati Sowjanya. (Being minor rep. by mother and natural

Guardian Garapati Lakshmi Kantham.) .. Defendants.

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Both the appeals coming on 6.6.2016 for final hearing in the presence of Sri M.Siva Subba Rao, Advocate for appellant in both the appeals, Sri I.V.Ramana Murthy, Advocate for the respondent in both the appeals and the matter having stood over for consideration, till this day, this Court delivered the following:

C O M M O N - J U D G M E N T

A.S.No.183/2007:-

1.This appeal is preferred under Section 96 read with Order 41 Rule 1 of Civil Procedure Code (hereinafter referred to as ‘C.P.C.’) by Garapati Sowjanya, who is the plaintiff in OS No.67/1999. Respondent Venkata Ramana Murthy and 2nd appellant Soma Sekhara Rao are the defendants. The appeal is preferred challenging the impugned judgment dated 5.2.2007 passed in OS No.67/1999 on the file of Senior Civil Judge, Ramachandrapuram.

2.The Suit OS No.67/1999 was filed for the reliefs to order for cancellation of mortgage bond dated 16.4.1998 or in the alternative to declare the suit mortgage as not valid, not binding and effective in so far as plaintiff’s undivided share in the plaint schedule property is concerned, to redeem the mortgage property subject to proof of validity of mortgage deed or in the alternative to get re-conveyance and possession of mortgaged property from 1st defendant.

3.As per orders in I.A.No.424/2004 in OS No.67/1999 dated 22.6.2004 additional prayers are added as follows:

(a)For a preliminary decree for partition of plaint schedule property into two equal shares and separate possession of the plaintiffs share.

(b)To affect partition in terms of preliminary decree by appointing a commissioner.

(c)To pass a final decree embodying the commissioner’s report.

(d)For future profits and costs.

AS No.203/2007:-

4.This appeal is preferred under Section 96 read with Order 41 Rule 1 of C.P.C. by 1st defendant Garapati Soma Sekhara Rao and 2nd defendant Garapati Sowjanya. Respondent Anaparthi Venkata Ramana Murthy is the plaintiff in OS No.158/2002 on 3 the file of Senior Civil Judge, Ramachandrapuram. The appeal is preferred against the impugned common judgment and decree

dated 5.2.2007 in OS No.158/2002.

5.The suit OS No.158/2002 was filed by the

Respondent/plaintiff Anaparthi Venkata Ramana Murthy for the reliefs,

(a)Directing the 1st defendant to deposit the suit amount with subsequent interest and costs into the court within a time to be fixed by the court, failing which extinguishing the right of redemption of the 1st defendant in the plaint schedule mortgage property and enabling the plaintiff to recover the suit mortgage debt by bringing the plaint schedule property to sale and if the same is not sufficient to discharge the debt to pass personal decree against the 1st defendant to recover the balance personally.

(b)For costs.

6.Initially OS No.158/2002 was filed against 1st defendant

Garapati Soma Sekhara Rao for the above said reliefs. Thereafter Garapati Sowjanya daughter of 1st defendant impleaded herself as 2nd defendant.

7.The learned Judge dismissed OS No.67/1999 in toto and counter claim in OS NO.158/2002. OS No.158/2002 is preliminarily decreed with subsequent interest at 6% per annum from the date of suit till realization on principal amount of Rs.2 lakhs. Time for redemption is given six months. OS No.158/2002 dismissed against 2nd defendant Sowjanya.

8.Before the trial court, the above two suits were tried together and common judgment was passed. For better appreciation parties are referred with their names as both suits are clubbed together.

9.Brief facts of both the cases are as follows:

(a)Garapati Sowjanya is the only daughter of Garapati

Somasekhararao, who is the 2ndDefendant in OS 4

No.67/1999. She pleads that Mr. Soma Sekhararao was addicted to vices like drinking ever since from 1994 and has been acting detriment to the interest of plaintiff by contacting Avya Vaharika debts, which are neither for the benefit or legal necessity of joint Hindu Family. The plaint schedule property is the joint family property of Sowjanya and said Soma Sekhararao by merging the same by Soma Sekhara Rao and has been treating and enjoying the joint family property. Sowjanya born on 12.6.1991, she became a co-parcener. She is entitled for equal share in the said joint family property. As such, she is having half share in the property.

(b)While so, Soma Sekhara Rao was addicted to vices.

A.V.Ramana Murthy 1st defendant in OS NO.67/1999 hatching a plan with active abetment and help of Arumilli Rama Krishna, Yerramsetti Ramarao, Undavalli Krishna and Padala Satyanarayana Reddy and obtained fraudulent and unenforceable, void, registered, usufructuary mortgage deed

dated 16.4.1998 pertaining to the joint family property

without knowledge and consent of Sowjanya, Soma Sekahararao executed the usufructuary mortgage deed.

(c)The mortgage details are as follows:

Date of Mortgage 16.4.1998. Name of the Mortgager Second defendant (Garapati Soma Sekhara Rao) Name of the Mortgagee First Defendant (Anaparthi Venkata Ramana Murthy) Sum secured Rs.2,00,000/-. Rate of interest 24% per annum. Mode of payment of Mortgage has to cultivate the interest mortgaged property and has to receive the income from the produce and has to appropriate the value of 46.25 kata bags of paddy every year in lieu of interest of said mortgage debt.

Due date for discharge 15.4.2002. of mortgage money Mortgage hypothecate Plaint schedule property.

(d)The mortgage deed provides the conditions that, (1)Some Sekhararao delivered the possession of the property to Ramana Murthy on the date of execution of 5 mortgage authorizing Ramanamurthy to retain possession.

(2)Ramanamurthy would cultivate land and would appropriate to himself the income from produce in lieu of interest of the mortgage debt.

(3)The Mortgager can redeem the mortgage property by paying the entire mortgage money.

(4)Here mortgager is Soma Sekhararao and the mortgagee is

Ramanamurthy.

(e)Accordingly, Soma Sekhararao delivered the possession of schedule property to Ramana Murthy, Sowjayna pleads that she being co-sharer and co-parcener and daughter of Soma Sekhararao has every right to redeem the mortgaged property. While so, Ramanamurthy making efforts to enter into sale transaction with regard to the schedule property. Therefore, Sowjanya filed suit for redemption of mortgage as by repaying the whole mortgage debt since the schedule property is joint family property she has a right to redeem the property.

(f)She also took a plea that mortgage bond is not true and valid. If redemption is not possible at least her share property may be ordered to be redeemed.

10.After filing OS No.67/1999 by Sowjanya for redemption, Mr.

Ramanamurthy has filed suit OS No.158/2002 against Soma Sekhara Rao initially and thereafter Sowjanya was impleaded in the year 2004. Mr. Ramana Murthy pleads that,

(a)The mortgage deed is existing. The time for discharge of the mortgage is 15.4.2002. Meanwhile he is entitled to cultivate the plaint schedule land and appropriate the rentals 25 bags per acre. Mr. Soma Sekhararao fell into due for Rs.3,82,440/-. A mortgage deed was executed after Soma Sekhara Rao borrowing amount of Rs.2 lakhs. Ramanamurthy was continuing possession of the schedule property. Ramanamurthy maintained accounts under mortgage transaction from 16.4.1998 up to the date of suit.

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He adjusted rentals out of interest payable by Soma Sekhararao for the years 1999, 2000, 2001 and 2002. Mr. Ramana Murthy is in possession and cultivating the schedule land.

(b)While so, Ramanamurthy has received a notice dated 20.6.2000 from Varahi Agricultural Co-operative Society of Vedurupaka demanding to pay Rs.35,683/- as due from Soma Sekhararao. Mr. Ramanamurthy has paid that amount and cleared the debt and waived the charge of Varahi Agricultural Co-operative Soceity. Thus, Soma Sekhara Rao is liable to pay Rs.3,82,440/- together with interest on Rs.35,683/-. Therefsore, Ramanamurthy has filedk the suit for recovery of an amount of Rs.3,82,440/- and Rs.35,683/-.

11.In both the cases the defence taken by the respective parties are as follows:

(a)In OS No.67/1999 Mr. Ramanamurthy has took a defence that Sowjanya is not having any right for redemption as she has no interest in the schedule property. She is not a mortgagor. It is Soma Sekhararao, who alone has got right, interest over the property. He denied that schedule property is a joint family property and she is co-parcener. He denied that mortgage bond was executed fraudulently. The property of Soma Sekhara Rao is self acquired property, which was given under gift exclusively belonging to Some Sekhararao, who mortgaged the said land after availing loan of Rs.2 lakhs from Ramanamurthy. The mortgage deed was acted upon. Mortgage bond is valid. Sowjanya has no right to claim any relief.

(b)In the said suit Soma Sekhara Rao also filed written statement denying the defence that mortgage deed is void, the property belongs to joint family property. He has no objection for redemption of mortgage by Sowjanya.

12.In OS No.158/2002 Soma Sekhara Rao has filed written statement stating that mortgage deed is not valid, rate of interest at 12% is not legal. The amount to be received are 25 kata bags 7 as makhta is Rs.415/- but it was calculated much less. The rate of interest to be calculated at 6%. He denied that he borrowed any amount of Rs.2 lakhs and executed mortgage bond. The suit is fraudulently filed. The suit is bad for non-joinder of daughter of Garapati Soma Sekhara Rao i.e., Sowjanya.

13.Subsequent to the filing of written statement, same was amended wherein Soma Sekhararao sought for rendition of account that all profits realized from the schedule land and appropriate the same towards interest as well principal amount due. The interest being calculated at 12% per annum simple as per the calculation memo annexed to the written statement. The relief sought for as the relief to render accounts of profits from Ramanamurthy from the plaint schedule land.

14.In the said suit Sowjanya was impleaded as one of the defendant. She filed written statement as a counter claim. She took the plea as per her pleadings in OS No.67/1999 that the property is a joint family property, it cannot be mortgaged, she has a share in it as a co-parcener. Ramanamurthy has realized excessive amounts and hence rendition of accounts is required and sought for relief directing Ramanamurthy to render accounts of profits realized from the plaint schedule property from 16.4.1998 onwards till such time he delivers the schedule property.

15.To the said counter claim Ramana Murthy has filed written statement. He denied all the allegations. She cannot claim rendition of accounts as she has no right. Ramanamurthy justified in adjusting the yearly rentals. Rate of interest is not high, but it is as per understanding. Sowjanya cannot seek rendition of accounts, she is not a proper and necessary party.

16.Before the trial court both the cases were come up together individually. The learned Judge after going through the pleadings framed as many as 11 issues for both the suits, which are as follows:

1. Whether mortgage deed dated 16.4.1998 is true, valid binding on the plaintiff and 2 nd defendant in OS No.67/1999?

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2. Whether the schedule property is ancestral property or separate property of 2 nd defendant Garapati Soma Sekhara Rao?

3. Whether the plaintiff in OS No.67/1999 is entitled to seek relief of redemption of mortgage or not?

4. Whether the plaintiff in OS No.67/99 is entitled for partition of schedule property or not?

5. Whether the plaintiff in OS No.67/1999 is entitled for seeking relief of accounting for the income from the schedule property from 16.4.1998 or not?

6. Whether the plaintiff in OS No.67/1999 is entitled for possession of the schedule property or not?

7. Whether the plaintiff in OS No.67/1999 is entitled for future profits?

8. Whether the plaintiff in OS 158/2002 is entitled for preliminary decree as prayed for?

9. Whether the 2 nd defendant in OS No.158/2002 is entitled for counter claim or not?

10. Whether the interest is liable to be scale down?

11. To what relief?

17.From Garapati Sowjanya side five witnesses were examined, from Ramanamurthy side three witnesses were examined. Exs.A.1 to A.5 were marked on behalf of Sowjanya and Exs.B.1 to B.20 are marked on behalf of Ramanamurthy.

18.After hearing both sides, the learned Judge while answering the issues opined that Garapati Sowjanya failed to prove that the schedule property is joint family property and treated as such, therefore, she is not entitled for redemption of the mortgage property and she is not entitled for any share, she cannot demand for accounting of the profits, she is not entitled for partition of the property and she also cannot claim for rendition of accounts. The learned judge further came to conclusion that Mr. Ramanamurthy has paid amounts to Varahi Agricultural Co-operative society and paid taxes, which is not disputed by Soma Sekhara Rao. Therefore, Mr. Ramanamurthy is entitled for recovery of amount and also did not accept that interest to be scaled down and finally concluded that OS No.67/1999 was dismissed in toto and counter claim in OS NO.158/2002 was dismissed. OS No.158/2002 is preliminarily decreed with subsequent interest at 6% per annum from the date of suit till realization on principal amount of Rs.2 lakhs. Time for redemption is given six months. OS No.158/2002 dismissed against 2nd defendant Sowjanya.

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19.In crux the learned trial court had accepted that there is valid mortgage deed existing between Ramanamurthy and Garapati Soma Sekararao. It is admitted that Ramanamurthy is in possession of the schedule property. The principal amount was borrowed by Soma Sekhararao. No dispute that Sowjanya is the sole legal heir. The learned Judge came to conclusion that Soma Sekhararao was due and he is liable to pay that amount to Ramanamurthy. Whereas the reliefs sought for by Sowjanya were dismissed solely on the ground that the schedule property is not a joint family property and she is not entitled for seeking redemption and consequently she is not entitled for partition, even redemption alone for her share.

20.There is no dispute that Soma Sekhararao and Sowjanya are the only persons to the schedule property having legal heirship.

21.The appeals have preferred by Sowjanya as well as

Somaseskhararao on the grounds in brief that:

1. The learned Judge wrongly came to conclusion that the property is not a joint family property and Sowjanya is not entitled for redemption of property.

2. The learned Judge did not take proper note of rate of interest to be calculated.

22.Pending of the appeal Sowjanya and Soma Sekhararao preferred amendment of grounds of appeal as well as written statement, which were allowed in part. Again revisions were preferred before the Honourable High Court of A.P., which were modified by the Honourable High Court. Grounds of appeal were permitted to be added, but amendment of written statement is not accepted. Thereafter hearing was proceeded. While pending the appeals Garapati Soma Sekhara Rao died. Thereafter I.A.Nos. 152/2016 and 153/2016 was filed to add Garapati Sowjanya as sole legal heir to Garapati Soma Sekhararao along with Garapati Lakshmi Kantham. The same were allowed and grounds of appeal were also amended, wherein it was specifically pleaded that one Garapati Sowjanya and Garapati Lakshmi Kantham undisputedly became legal heirs of Soma Sekhararao, no need to discuss further about joint family status of the schedule property and Garapati Sowjanya has a right to lien mortgage and she is entitled 10 for redemption of mortgaged property on payment of Rs.2 lakhs with a direction to deliver the possession of the plaint schedule property.

23.It is brought to the notice of this court that pending the appeal Sowjanya has already deposited an amount of Rs.2 lakhs

before the trial court, it is lying before the learned trial court. The

learned counsel for Sowjanya and Soma Sekhararao vehemently argued that the property is a joint family property and she has a right to redeem. In fact, it is submitted that Soma Sekhararao has executed a gift deed and application is filed to receive the said gift, which was not filed earlier and consequently amend the pleadings. While pending those applications Garapati Soma Sekhararao died.

24.Consequently learned counsel for Sowjanya submitted that as Mr. Soma Sekhararao died, Sowjanya and Lakshmi Kantham became legal heirs and they are entitled to redeem the debt irrespective of the joint family status. To the said contention, learned counsel for Ramanamurthy submitted that there is no dispute with regard to the legal heirship and as a legal heir after death of Soma Sekhararao, Sowjanya has accrued right to redeem the property and no dispute to that extent.

25.Now, the points that would arise for determination in both the appeals are:

1. Whether Garapati Sowjanya is entitled to seek relief of redemption of mortgage or not?

2. Whether Garapati Sowjanya is entitled for seeking relief of accounting of income from the schedule property from 16.4.1998?

3. Whether Garapati Sowjanya is entitled for possession of schedule property?

4. Whether Garapati Sowjanya is entitled for future profits?

5. Whether Garapati Sowjanya is entitled for partition of schedule property?

6. Whether the schedule property is ancestral property or separate property of Garapati Somasekhara Rao?

7. Whether the mortgage deed dated 16.4.1998 is true, valid and binding on Garapati Sowjanya and Garapati Somasekhara Rao?

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8. Whether Anaparthi Venkata Ramana Murthy is entitled for preliminary decree and recovery of amount?

9. Whether Garapati Somasekhara Rao is entitled for counter claim?

10. Whether the interest levied is proper and liable to be scaled down?

11. To what relief?

26.The learned counsel for both parties have submitted that

Garapati Somasekhara Rao died. In such a case, Garapati Sowjanya, who is the only surviving daughter of Garapati Somasekhara Rao and Garapati Lakshmikantham, is the legal heir of the deceased Garapati Somasekhara Rao. Garapati Sowjanya is the plaintiff in OS No.67/1999 and 2nd defendant in OS No.158/2002. During the pendency of appeal after death of Garapati Somasekhara Rao, Garapati Sowjanya was impleaded as a legal heir to the deceased Garapati Somasekhara Rao. Therefore, Garapati Sowjanya as a plaintiff in OS No.67/1999 and 2nd defendant in OS No.158/2002 has come into picture.

27.The learned counsel for Mr. A.V.Ramana Murthy submits that prior to death, Garapati Somasekhara Rao had been contesting, the taking of loan by Somasekhara Rao was proved. The schedule property was mortgaged. The mortgage was usufructuary mortgage. Garapati Sowjanya was not a party to the mortgage, the schedule property was never a joint family property and she is not coparcener. Therefore, she cannot claim for partition or redemption or furnishing of accounts. Garapati Somasekhara Rao alone is entitled for redemption after paying the dues.

28.Now, the changed scenario is Garapati Sowjanya has become Garapati Somasekhara Rao after his death, as his legal heir. Now legal position is, she stepped into the shows of Garapati Somasekhara Rao as mortgagor. The mortgagor is always entitled to redeem the property after paying the due amounts. Once mortgagor pays the amount, expresses his willingness to clear the dues, the mortgagee has no option to redeliver the property. That legal position is not disputed by the learned counsel for Mr. A.V.Ramana Murthy. Therefore, now the grounds on which suit 12 for redemption filed by Garapati Sowjanya was dismissed that she is not a coparcener, the schedule property is not a joint family property, therefore, partition does not arise and she cannot claim redemption as well as for furnishing of accounts, becomes dilute.

29.Now, Garapati Sowjanya becomes Garapati Somasekhara

Rao and she as Garapati Somasekhara Rao mortgagor and seek redemption of usufructuary mortgaged property and all other reliefs as a mortgagor. The concept of joint property now also gets diluted as even according to A.V.Ramana Murthy the property is not a joint property and solely belongs to Garapati Somasekhara Rao, so Garapati Sowjanya becomes the legal heir of Garapati Somasekhara Rao. Therefore, it becomes exclusive property of Garapati Sowjanya. Therefore, the contention of joint property also cannot be considered. Therefore, most of the findings given by learned Judge that Garapati Sowjanya is not a coparcener, property is not a joint property, she is not entitled for redemption, not do not stand. In the light of background, now the points are to be answered.

POINT NO.5:-

Whether Garapati Sowjanya is entitled for partition of schedule property?

30.The learned Judge has given a finding that the schedule property is not a joint property and Garapati Sowjanya is not entitled for partition of schedule property. Now, this issue becomes irrelevant, as after death of Garapati Somasekhara Rao, his legal heir is Garapati Sowjanya. In such a case, she becomes the owner of the property. In such a case no partition is required, as no other legal heirs are there. Therefore, it is answered that Garapati Sowjanya is not entitled for partition of the suit schedule property. Accordingly, the point is answered.

POINT NO.6:- Whether the schedule property is ancestral property or separate property of Garapati Somasekhara Rao?

31.In the light of above discussion that after death of Garapati

Somasekhara Rao, Garapati Sowjanya has become his successor, there need not be any further discussion as it is ancestral property 13 or separate property. For the reason Garapati Sowjanya stepped into shoes of Garapati Somasekhara Rao. The learned counsel for Mr. A.V.Ramana Murthy did not oppose this legal position. No further discussion with regard to the property whether it is ancestral property or separate is required. For the reason the learned Judge held that the property is exclusive property of Somasekhara Rao. Now, after death of Somasekhara Rao, Garapati Sowjanya has become the successor. Therefore, I find that the property is the property of Garapati Somasekhara Rao alone.

POINT NO.7:- Whether the mortgage deed dated 16.4.1998 is true, valid and binding on Garapati Sowjanya and Garapati Somasekhara Rao?

32.Garapati Somasekhara Rao died and Garapati Sowjanya impleaded as a legal heir. A mortgage deed, according to Mr.A.V.Ramana Murthy was executed by Garapati Sowjanya. It is relevant that Garapati Sowjanya is seeking redemption of the schedule property basing on this mortgage deed Ex.B.1. In fact she has deposited principal amount of Rs.2 lakhs before the trial court. The contention of Garapati Somasekhara Rao was, the mortgage deed was executed fraudulently. The contention of Sowjanya was that Garapati Somasekhara Rao addicted to vices and when he was in abrogative condition, the deed was executed. However, Somasekhara Rao while he was alive and examined as witness as D.W.3, did not show any evidence that the document was fraudulently executed. Garapati Sowjanya through her mother was examined as P.W.1 and through her evidence also nothing much was elicited that the deed was executed fraudulently. P.W.1 deposed in her evidence that Mr. A.V.Ramana Murthy was in possession of the property. More so, Somasekhara Rao as well as Garapati Sowjanya sought for furnishing of accounts and this relief arising out of Ex.B.1 usufructuary mortgage deed. In the absence of any cogent evidence of fraudulent execution of Ex.B.1, more so, deposit of principal amount before the trial court by Garapati Sowjanya, as a principal amount and claiming the reliefs basing on Ex.B.1, would establish that mortgage deed dated 16.4.1998 is true, valid and it binds now 14 on Garapati Sowjanya as a mortgagor after death of Somasekhara Rao. Accordingly, the point is answered.

POINT Nos.1 and 3:-

1. Whether Garapati Sowjanya is entitled to seek relief of redemption of mortgage or not?

3. Whether Garapati Sowjanya is entitled for possession of schedule property?

33.The law of redemption is stated under Section 60 and right of usufructury mortgagor to recover possession is stated under Section 62 of Transfer of Property Act, 1882 (hereinafter referred to as ‘T.P. Act’), which reads as follows:

60. Right of mortgagor to redeem :- At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished :

Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.

The right conferred by this section is called a right to redeem, and a suit to enforce it is called a suit for redemption.

Nothing in the section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property

Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all 15 such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

62. Right of usufructury mortgagor to recover possession :- In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,

(a) where the mortgagee is authorised to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid ;

(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortgage-money, - when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage- money or the balance thereof or deposits it in Court as hereinafter provided.

34.The provision reads the mortgagor has a right to redeem after the principal became due he can pay the payment at proper time and place, then he can seek redemption of property. That right is a legal right. If the property is mortgaged extinguish by any means if mortgagor is ready to pay the mortgaged amount with interest thereon. The said legal position is again reiterated by the Honourable High Court in the case of M.Amarender Reddy Vs. Canara Bank and another 1 . The Honourable High Court at para Nos. 21, 23 and 24 was pleased to held that once a mortgage always a mortgage. So long as the mortgagor has a right to redeem the mortgage, he can always pay all the debt together with interest to the mortgagee and get back possession of the mortgaged property. This possession shall continue so long as the property was not sold under a final decree of sale brought about in accordance with the provisions of Order 34 of C.P.C., or any other law provided thereof.

35.The said observations of Honourable High Court do show that mortgagor had every right to redeem. Now, applying the provision of law laid down to the present facts of the case, the facts of this case do Somasekhara Rao had executed mortgage deed and Mr. A.V.Ramana Murthy is in possession of the schedule property. He is adjusting the yield out of the schedule property. Now, Garapati Sowjanya as a mortgagor in the place of Garapati 1 2016 (4) ALT 193 (D.B) 16

Somasekhara Rao, is entitled for redemption of mortgage after expressing her interest to clear the dues. In fact, she deposited the principal amount before the trial court. A mortgagor always having a right to redeem the property. Mortgagor is only a protector of the property and under usufructuary mortgage can claim income out of the property. But, never become owner of the property. Therefore, as Garapati Somasekhara Rao now Garapati Sowjanya is a legal heir and becoming mortgagor, is entitled for redemption of the property. Her right cannot be curtailed. Even according to P.W.1 and evidence let in Mr. A.V.Ramana Murthy is in possession of the schedule property. Therefore, after paying the due amounts under mortgage deed Ex.B.1, Garapati Sowjanya is entitled for redemption of the property and Mr. A.V. Ramana Murthy is entitled for redemption as well as possession of the schedule property. The defence that as a third party or the property is not ancestral property or joint property, Garaparti Sowjanya is not entitled for possession or redemption does sustain as she is now contesting as Garapati Somasekhara Rao after death of her father. Accordingly, the points are answered.

36.As per the above discussion most of the aspects, which were challenged by both parties on the ground that Garapati Sowjanya is not entitled for redemption or possession becomes not acceptable. If the mortgagor is ready to pay the mortgage debt, the mortgagee has to deliver the property. The legal position with regard to Garapati Sowjanya has become the legal heirs and as mortgagor, is not in dispute. Therefore, as mortgagor she is entitled when she expresses ready and willingness to pay the amount to take the property. No further objections would be there either legally or factually.

37.In the light of above discussion, I am of the view that it is safely concluded that Garapati Sowjanya is entitled to seek relief of redemption of mortgaged property as now she became the mortgagor in the shoes of her father and it applies under Section 60 of T.P. Act. Under Section 62 of T.P. Act, the mortgagor to the usufructury mortgage is always entitled to recover the schedule property after mortgaged amount is paid. Accordingly, the point is answered.

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38.Now, the other relevant aspects that would come into picture are, (1) with regard to the counter claim by Somasekhara Rao, (2) Claim by Garapati Sowjanya for furnishing of accounts and (3) recovery of amount sought for by Mr. A.V.Ramana Murthy, failing which, sale of mortgage property. That is to say whether the usufructuary mortgage, the loan amount was cleared by Somasekhara Rao or not, if the claim of Mr.A.V. Ramana Murthy is that Somasekhara Rao do not pay the amount even after deducting the income from the property is he entitled for due amount and till then can he hold possession of the property or on failing to pay of amount, can he go for sale of the property. If it is proved that no due amounts are there, he is not entitled to hold the possession and consequently has to deliver the possession to Somasekhara Rao. The relevant points to be discussed are,

1. Whether Garapati Sowjanya is entitled for seeking relief of accounting of income from the schedule property from 16.4.1998?

4. Whether Garapati Sowjanya is entitled for future profits?

8. Whether Anaparthi Venkata Ramana Murthy is entitled for preliminary decree and recovery of amount?

9. Whether Garapati Somasekhara Rao is entitled for counter claim?

10. Whether the interest levied is proper and liable to be scaled down?

39.OS No.158/2002 is the suit filed by Mr. A.V.Ramana Murthy on the grounds that Garapati Somasekhara Rao has failed to discharge his debt and therefore, he is entitled for preliminary decree. For deposit of suit amount with interest and expenses and failing which sale of the property extinguishing the right of redemption.

40.The initial burden lies on Mr. A.V.Ramana Murthy that there is a due amount. He relied on accounts of calculation attached along with plaint. Prior to that it is relevant to go through the contents of mortgage deed under Ex.B.1. It is held by this court that there is no doubt or cloud being not proved by Garapati Somasekhara Rao or Garapati Sowjanya with regard to non-execution of mortgage deed and binding. Therefore, the mortgage deed binds both parties including Garapati Sowjanya 18 now. As per Ex.B.1, principal amount is Rs.2 lakhs and rate of interest is 24% per annum. The mortgage details are as follows:

Date of Mortgage 16.4.1998. Name of the Mortgager Second defendant (Garapati Soma Sekhara Rao) Name of the Mortgagee First Defendant (Anaparthi Venkata Ramana Murthy) Sum secured Rs.2,00,000/-. Rate of interest 24% per annum. Mode of payment of Mortgage has to cultivate the interest mortgaged property and has to receive the income from the produce and has to appropriate the value of 46.25 kata bags of paddy every year in lieu of interest of said mortgage debt.

Due date for discharge 15.4.2002. of mortgage money Mortgage hypothecate Plaint schedule property.

41.The mortgage deed provides the condition that the

Mortgager can redeem the mortgage property by paying the entire mortgage money. The time is stipulated for discharge is 15.4.2002. Mr. A.V.Ramana Murthy was permitted to cultivate the schedule property as a lessee. Yearly returns of 25 bags per acre i.e., 46.25 kata bags for Ac.1-85 cents of schedule land be deducted as the value of the same towards interest after Makara Sankranthi every year.

42.The above extract of Ex.B.1 deed show the mode of adjustment of income yield out of the schedule property where Mr. A.V.Ramana Murthy was permitted to cultivate and adjust that amount towards his interest. Garapati Sowjanya though in her suit challenged the maintainability of Ex.B.1, but during the course of proceedings as well as in the appeal she did not raise much objections with regard to Ex.B.1. Further, relied on payment of mortgage amount and seeking redemption of the property. This shows that she took objection of Ex.B.1 as fraudulently executed, but she came forward with deposit of mortgage money and also seeking redemption on the ground that she paid the mortgage money. Therefore, the stand challenging Ex.B.1 does not arise. Now, it is to be seen whether the calculation i.e., levied by Mr. A.V.Ramana Murthy is arriving the due amounts as on the date of filing the suit. Mr. A.V.Ramana Murthy has calculated the principal amount as Rs.2 lakhs and 19 levied interest at 24% on the principal amount. Thereafter he deducted the amounts at the rate of Rs.360/- per bag of 46.25 bags and arrived to the amount, which according to him by 21.12.2002 is Rs.3,82,440/-

43.It is the contention of learned counsel for Garapati Sowjanya and Garapati Somasekhara Rao that 24% of interest is not valid. Garapati Somasekhararao was an agriculturist, therefore, interest should be 12% or 6% calculating at 24% is not valid. The learned counsel also objected that Mr. A.V.Ramana Murthy has paid amount of Rs.35,683/- to Varahi Agricultural Co-operative society and included the same to the due amounts.

44.Garapati Sowjanya has filed a calculation memo, in reply to the calculation levied by Mr. A.V.Ramana Murthy. He calculated the principal amount as Rs.2 lakhs and added interest at 12% per annum. She calculated 90 kata bags for two crops, at the rate of 45 bags per crop and calculated a total amount at the rate of Rs.360/- and he deducted expenses amounts and calculated the interest further. Therefore, according to her calculation, the amount due is Rs.90,875/- with interest, it amounts to Rs.2,99,041/-. I have gone through these two calculation memos in the light of Ex.B.1. Ex.B.1 the mode of recovery of interest is specifically stated 24% interest on principal amount and 46.25 kata bags. It is not specifically stated either for two crops or one crop. In Ex.B.1 it is not specifically established the mode of recovery is stated under Ex.B.1 is to be valid. Now, in my view it cannot be said that 90 kata bags for two crops and it can be valued.

45.Even otherwise Garapati Sowjanya through P.Ws.1 to 5, has not specifically let in evidence with regard to the calculation of the interest anomalies in calculating the due amount by Mr. A.V.Ramana Murthy or to support her counter claim. When liberal meaning of Ex.B.1 is applied that for adjustment of interest recovery mode, that clause is to be followed rather than Sowjanya or Somasekhara Rao for calculating interest. As discussed above after going through the evidence of P.Ws.1 to 5, nothing much elicited to support their claim or D.W.1 to D.W.3 evidence do not show any evidence contra to Ex.B.1. Therefore, I am of the view that calculations levied by Mr. A.V.Ramana Murthy are proper, 20

Garapati Sowjanya is not entitled for furnishing of accounts and counter claim is not sustained.

46.Therefore, in the light of above discussions it can be safely concluded that Garapati Sowjanya is not entitled for account for income from the schedule property, not entitled for future profits, not entitled for preliminary decree and recover of amount as well as she is not entitled for counter claim. Interest left as discussed above. Accordingly the points are answered.

POINT NO.11:-

To what relief?

47.In the light of discussion made above, it is admitted by both counsels that Garapati Sowjanya deposited Rs.2 lakhs before the trial court on 29.6.2006 and it is lying in Civil Courts Accounts. From that period interest might have been accrued. The principal amount is proved to be of Rs.2 lakhs.

48.In the light of holding points in favour of Garapati Sowjanya that she is entitled for redeem the property, after paying the due amounts, as it is established by Mr. A.V.Ramana Murthy the due amount is Rs.3,82,440/- .

49.It is relevant that the learned Judge while answering the issue dismissed the suit OS No.67/1999 and counter claim in OS No.158/2002 by Garapati Sowjanya and granted preliminary decree in OS No.158/2002 is requires to be interfered by this court.

50.In the result,

(a)A.S. No.183/2007 is allowed setting aside the judgment and decree dated 5.2.2007 passed in OS No.67/1999 on the file of Senior Civil Judge, Ramachandrapuram and

OS No.67/1999 is hereby decreed as follows:

(i)Garapati Sowjanya is hereby declared as entitled to redeem the schedule property.

(ii)Mr. A.V.Ramana Murthy is hereby directed to deliver the mortgaged property and relevant documents relating to the mortgaged property, which are in his possession.

(iii)Mr. A.V.Ramana Murthy is hereby directed to deliver the possession of mortgaged property and 21 documents subject to payment of Rs.3,82,440/- due amount with interest on principal amount of Rs.2,00,000/- from the date of filing the suit OS No.158/2002 till 29.6.2006.

(iv)Garapati Sowjanya and Mr. A.V.Ramana Murthy are permitted to deduct the amount of Rs.2,00,000/- deposited by Garapati Sowjanya on 29.6.2006 with accrued interest from 2006 till the date of delivery of possession and documents from the due amounts.

(v)Both parties are permitted to file calculation memos of compliance of decree before the trial court within two months from the date of decree.

(vi)The relief sought for cancellation of mortgage deed and declaration that mortgage deed is invalid and binding and the relief for partition of the plaint schedule property and rendition of accounts, are hereby dismissed.

(b)A.S.No.203/2007 is allowed and the judgment and decree dated 5.2.2007 passed in OS No.158/2002 on the file of Senior Civil Judge, Ramachandrapuram granting of preliminary decree with subsequent interest at 6% per annum from the date of suit till realization on principal sum of Rs.2,00,000/- and time for redemption six months against 1st defendant i.e., Garapati Somasekhara Rao is hereby set aside and the claim of Mr. A.V.Ramana Murthy in OS No.158/2002 is hereby dismissed. Dismissal of counter claims by Garapati Somasekhara Rao and Garapati Sowjanya is hereby confirmed.

(c)Both parties in both the appeals shall bear their own costs.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the open court this the 29th day of June, 2016.

JUDGE

FAMILY COURT-CUM-IX ADDL. DISTRICT COURT,

RAJAMAHENDRAVARAM.

Copy to the Senior Civil Judge, Ramachandrapuram.

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IN THE COURT OF THE FAMILY-CUM-IX ADDL. DISTRICT

JUDGE, EAST GODAVARI DISTRICT AT

RAJAMAHENDRAVARAM.

PRESENT:- Purushottam Kumar Chintalapudi

Judge,

Family Court-cum-Addl. District & Sessions Judge

Wednesday the 29th day of June, 2016

Appeal Suit Nos.183/2007 and 203/2007

Between: (AS No.183/2007) 1.Garapati Sowjanya. 2.Garapati Somasekhara Rao (died). 3.Garapati Lakshmi Kantham. … Appellants.

And

Anaparthi Venkata Ramana Murthy. … Respondent.

Appeal against the decree and Judgment dated

5.2.2007 passed by the Senior Civil Judge,

Ramachandrapuram in O.S.No.67/1999 made in

Between: Garapati Sowjanya. … Plaintiff.

And

1.Anaparthi Venkata Ramana Murthy.

2.Garapati Somasekhara Rao. ... Defendants.

Between: (AS No.203/2007) 1.Garapati Somasekhara Rao (died) 2.Garapati Sowjanya. (Being minor rep. by mother and natural Guardian Garapati Lakshmi Kantham) 3.Garapati Lakshmi Kantham. (Added as party as per orders in I.A.No.153/2016 Dt.28.3.2016). … Appellants.

And

Anaparthi Venkata Ramana Murthy. … Respondent.

Appeal against the decree and Judgment dated 5.2.2007

passed by the Senior Civil Judge, Ramachandrapuram in

O.S.No.158/2002 made in

Anaparthi Venkata Ramana Murthy. .. Plaintiff.

And

1.Garapati Soma Sekhara Rao. 2.Garapati Sowjanya. (Being minor rep. by mother and natural

Guardian Garapati Lakshmi Kantham.) .. Defendants.

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Both the appeals coming on 6.6.2016 for final hearing in the presence of Sri M.Siva Subba Rao, Advocate for appellant in both the appeals, Sri I.V.Ramana Murthy, Advocate for the respondent in both the appeals and the matter having stood over for consideration, till this day, this Court delivered the following:

C O M M O N - J U D G M E N T

A.S.No.183/2007:-

1.This appeal is preferred under Section 96 read with Order 41 Rule 1 of Civil Procedure Code (hereinafter referred to as ‘C.P.C.’) by Garapati Sowjanya, who is the plaintiff in OS No.67/1999. Respondent Venkata Ramana Murthy and 2nd appellant Soma Sekhara Rao are the defendants. The appeal is preferred challenging the impugned judgment dated 5.2.2007 passed in OS No.67/1999 on the file of Senior Civil Judge, Ramachandrapuram.

2.The Suit OS No.67/1999 was filed for the reliefs to order for cancellation of mortgage bond dated 16.4.1998 or in the alternative to declare the suit mortgage as not valid, not binding and effective in so far as plaintiff’s undivided share in the plaint schedule property is concerned, to redeem the mortgage property subject to proof of validity of mortgage deed or in the alternative to get re-conveyance and possession of mortgaged property from 1st defendant.

3.As per orders in I.A.No.424/2004 in OS No.67/1999 dated 22.6.2004 additional prayers are added as follows:

(a)For a preliminary decree for partition of plaint schedule property into two equal shares and separate possession of the plaintiffs share.

(b)To affect partition in terms of preliminary decree by appointing a commissioner.

(c)To pass a final decree embodying the commissioner’s report.

(d)For future profits and costs.

AS No.203/2007:-

4.This appeal is preferred under Section 96 read with Order 41 Rule 1 of C.P.C. by 1st defendant Garapati Soma Sekhara Rao and 2nd defendant Garapati Sowjanya. Respondent Anaparthi Venkata Ramana Murthy is the plaintiff in OS No.158/2002 on 3 the file of Senior Civil Judge, Ramachandrapuram. The appeal is preferred against the impugned common judgment and decree

dated 5.2.2007 in OS No.158/2002.

5.The suit OS No.158/2002 was filed by the

Respondent/plaintiff Anaparthi Venkata Ramana Murthy for the reliefs,

(a)Directing the 1st defendant to deposit the suit amount with subsequent interest and costs into the court within a time to be fixed by the court, failing which extinguishing the right of redemption of the 1st defendant in the plaint schedule mortgage property and enabling the plaintiff to recover the suit mortgage debt by bringing the plaint schedule property to sale and if the same is not sufficient to discharge the debt to pass personal decree against the 1st defendant to recover the balance personally.

(b)For costs.

6.Initially OS No.158/2002 was filed against 1st defendant

Garapati Soma Sekhara Rao for the above said reliefs. Thereafter Garapati Sowjanya daughter of 1st defendant impleaded herself as 2nd defendant.

7.The learned Judge dismissed OS No.67/1999 in toto and counter claim in OS NO.158/2002. OS No.158/2002 is preliminarily decreed with subsequent interest at 6% per annum from the date of suit till realization on principal amount of Rs.2 lakhs. Time for redemption is given six months. OS No.158/2002 dismissed against 2nd defendant Sowjanya.

8.Before the trial court, the above two suits were tried together and common judgment was passed. For better appreciation parties are referred with their names as both suits are clubbed together.

9.Brief facts of both the cases are as follows:

(a)Garapati Sowjanya is the only daughter of Garapati

Somasekhararao, who is the 2ndDefendant in OS 4

No.67/1999. She pleads that Mr. Soma Sekhararao was addicted to vices like drinking ever since from 1994 and has been acting detriment to the interest of plaintiff by contacting Avya Vaharika debts, which are neither for the benefit or legal necessity of joint Hindu Family. The plaint schedule property is the joint family property of Sowjanya and said Soma Sekhararao by merging the same by Soma Sekhara Rao and has been treating and enjoying the joint family property. Sowjanya born on 12.6.1991, she became a co-parcener. She is entitled for equal share in the said joint family property. As such, she is having half share in the property.

(b)While so, Soma Sekhara Rao was addicted to vices.

A.V.Ramana Murthy 1st defendant in OS NO.67/1999 hatching a plan with active abetment and help of Arumilli Rama Krishna, Yerramsetti Ramarao, Undavalli Krishna and Padala Satyanarayana Reddy and obtained fraudulent and unenforceable, void, registered, usufructuary mortgage deed

dated 16.4.1998 pertaining to the joint family property

without knowledge and consent of Sowjanya, Soma Sekahararao executed the usufructuary mortgage deed.

(c)The mortgage details are as follows:

Date of Mortgage 16.4.1998. Name of the Mortgager Second defendant (Garapati Soma Sekhara Rao) Name of the Mortgagee First Defendant (Anaparthi Venkata Ramana Murthy) Sum secured Rs.2,00,000/-. Rate of interest 24% per annum. Mode of payment of Mortgage has to cultivate the interest mortgaged property and has to receive the income from the produce and has to appropriate the value of 46.25 kata bags of paddy every year in lieu of interest of said mortgage debt.

Due date for discharge 15.4.2002. of mortgage money Mortgage hypothecate Plaint schedule property.

(d)The mortgage deed provides the conditions that, (1)Some Sekhararao delivered the possession of the property to Ramana Murthy on the date of execution of 5 mortgage authorizing Ramanamurthy to retain possession.

(2)Ramanamurthy would cultivate land and would appropriate to himself the income from produce in lieu of interest of the mortgage debt.

(3)The Mortgager can redeem the mortgage property by paying the entire mortgage money.

(4)Here mortgager is Soma Sekhararao and the mortgagee is

Ramanamurthy.

(e)Accordingly, Soma Sekhararao delivered the possession of schedule property to Ramana Murthy, Sowjayna pleads that she being co-sharer and co-parcener and daughter of Soma Sekhararao has every right to redeem the mortgaged property. While so, Ramanamurthy making efforts to enter into sale transaction with regard to the schedule property. Therefore, Sowjanya filed suit for redemption of mortgage as by repaying the whole mortgage debt since the schedule property is joint family property she has a right to redeem the property.

(f)She also took a plea that mortgage bond is not true and valid. If redemption is not possible at least her share property may be ordered to be redeemed.

10.After filing OS No.67/1999 by Sowjanya for redemption, Mr.

Ramanamurthy has filed suit OS No.158/2002 against Soma Sekhara Rao initially and thereafter Sowjanya was impleaded in the year 2004. Mr. Ramana Murthy pleads that,

(a)The mortgage deed is existing. The time for discharge of the mortgage is 15.4.2002. Meanwhile he is entitled to cultivate the plaint schedule land and appropriate the rentals 25 bags per acre. Mr. Soma Sekhararao fell into due for Rs.3,82,440/-. A mortgage deed was executed after Soma Sekhara Rao borrowing amount of Rs.2 lakhs. Ramanamurthy was continuing possession of the schedule property. Ramanamurthy maintained accounts under mortgage transaction from 16.4.1998 up to the date of suit.

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He adjusted rentals out of interest payable by Soma Sekhararao for the years 1999, 2000, 2001 and 2002. Mr. Ramana Murthy is in possession and cultivating the schedule land.

(b)While so, Ramanamurthy has received a notice dated 20.6.2000 from Varahi Agricultural Co-operative Society of Vedurupaka demanding to pay Rs.35,683/- as due from Soma Sekhararao. Mr. Ramanamurthy has paid that amount and cleared the debt and waived the charge of Varahi Agricultural Co-operative Soceity. Thus, Soma Sekhara Rao is liable to pay Rs.3,82,440/- together with interest on Rs.35,683/-. Therefsore, Ramanamurthy has filedk the suit for recovery of an amount of Rs.3,82,440/- and Rs.35,683/-.

11.In both the cases the defence taken by the respective parties are as follows:

(a)In OS No.67/1999 Mr. Ramanamurthy has took a defence that Sowjanya is not having any right for redemption as she has no interest in the schedule property. She is not a mortgagor. It is Soma Sekhararao, who alone has got right, interest over the property. He denied that schedule property is a joint family property and she is co-parcener. He denied that mortgage bond was executed fraudulently. The property of Soma Sekhara Rao is self acquired property, which was given under gift exclusively belonging to Some Sekhararao, who mortgaged the said land after availing loan of Rs.2 lakhs from Ramanamurthy. The mortgage deed was acted upon. Mortgage bond is valid. Sowjanya has no right to claim any relief.

(b)In the said suit Soma Sekhara Rao also filed written statement denying the defence that mortgage deed is void, the property belongs to joint family property. He has no objection for redemption of mortgage by Sowjanya.

12.In OS No.158/2002 Soma Sekhara Rao has filed written statement stating that mortgage deed is not valid, rate of interest at 12% is not legal. The amount to be received are 25 kata bags 7 as makhta is Rs.415/- but it was calculated much less. The rate of interest to be calculated at 6%. He denied that he borrowed any amount of Rs.2 lakhs and executed mortgage bond. The suit is fraudulently filed. The suit is bad for non-joinder of daughter of Garapati Soma Sekhara Rao i.e., Sowjanya.

13.Subsequent to the filing of written statement, same was amended wherein Soma Sekhararao sought for rendition of account that all profits realized from the schedule land and appropriate the same towards interest as well principal amount due. The interest being calculated at 12% per annum simple as per the calculation memo annexed to the written statement. The relief sought for as the relief to render accounts of profits from Ramanamurthy from the plaint schedule land.

14.In the said suit Sowjanya was impleaded as one of the defendant. She filed written statement as a counter claim. She took the plea as per her pleadings in OS No.67/1999 that the property is a joint family property, it cannot be mortgaged, she has a share in it as a co-parcener. Ramanamurthy has realized excessive amounts and hence rendition of accounts is required and sought for relief directing Ramanamurthy to render accounts of profits realized from the plaint schedule property from 16.4.1998 onwards till such time he delivers the schedule property.

15.To the said counter claim Ramana Murthy has filed written statement. He denied all the allegations. She cannot claim rendition of accounts as she has no right. Ramanamurthy justified in adjusting the yearly rentals. Rate of interest is not high, but it is as per understanding. Sowjanya cannot seek rendition of accounts, she is not a proper and necessary party.

16.Before the trial court both the cases were come up together individually. The learned Judge after going through the pleadings framed as many as 11 issues for both the suits, which are as follows:

1. Whether mortgage deed dated 16.4.1998 is true, valid binding on the plaintiff and 2 nd defendant in OS No.67/1999?

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2. Whether the schedule property is ancestral property or separate property of 2 nd defendant Garapati Soma Sekhara Rao?

3. Whether the plaintiff in OS No.67/1999 is entitled to seek relief of redemption of mortgage or not?

4. Whether the plaintiff in OS No.67/99 is entitled for partition of schedule property or not?

5. Whether the plaintiff in OS No.67/1999 is entitled for seeking relief of accounting for the income from the schedule property from 16.4.1998 or not?

6. Whether the plaintiff in OS No.67/1999 is entitled for possession of the schedule property or not?

7. Whether the plaintiff in OS No.67/1999 is entitled for future profits?

8. Whether the plaintiff in OS 158/2002 is entitled for preliminary decree as prayed for?

9. Whether the 2 nd defendant in OS No.158/2002 is entitled for counter claim or not?

10. Whether the interest is liable to be scale down?

11. To what relief?

17.From Garapati Sowjanya side five witnesses were examined, from Ramanamurthy side three witnesses were examined. Exs.A.1 to A.5 were marked on behalf of Sowjanya and Exs.B.1 to B.20 are marked on behalf of Ramanamurthy.

18.After hearing both sides, the learned Judge while answering the issues opined that Garapati Sowjanya failed to prove that the schedule property is joint family property and treated as such, therefore, she is not entitled for redemption of the mortgage property and she is not entitled for any share, she cannot demand for accounting of the profits, she is not entitled for partition of the property and she also cannot claim for rendition of accounts. The learned judge further came to conclusion that Mr. Ramanamurthy has paid amounts to Varahi Agricultural Co-operative society and paid taxes, which is not disputed by Soma Sekhara Rao. Therefore, Mr. Ramanamurthy is entitled for recovery of amount and also did not accept that interest to be scaled down and finally concluded that OS No.67/1999 was dismissed in toto and counter claim in OS NO.158/2002 was dismissed. OS No.158/2002 is preliminarily decreed with subsequent interest at 6% per annum from the date of suit till realization on principal amount of Rs.2 lakhs. Time for redemption is given six months. OS No.158/2002 dismissed against 2nd defendant Sowjanya.

9

19.In crux the learned trial court had accepted that there is valid mortgage deed existing between Ramanamurthy and Garapati Soma Sekararao. It is admitted that Ramanamurthy is in possession of the schedule property. The principal amount was borrowed by Soma Sekhararao. No dispute that Sowjanya is the sole legal heir. The learned Judge came to conclusion that Soma Sekhararao was due and he is liable to pay that amount to Ramanamurthy. Whereas the reliefs sought for by Sowjanya were dismissed solely on the ground that the schedule property is not a joint family property and she is not entitled for seeking redemption and consequently she is not entitled for partition, even redemption alone for her share.

20.There is no dispute that Soma Sekhararao and Sowjanya are the only persons to the schedule property having legal heirship.

21.The appeals have preferred by Sowjanya as well as

Somaseskhararao on the grounds in brief that:

1. The learned Judge wrongly came to conclusion that the property is not a joint family property and Sowjanya is not entitled for redemption of property.

2. The learned Judge did not take proper note of rate of interest to be calculated.

22.Pending of the appeal Sowjanya and Soma Sekhararao preferred amendment of grounds of appeal as well as written statement, which were allowed in part. Again revisions were preferred before the Honourable High Court of A.P., which were modified by the Honourable High Court. Grounds of appeal were permitted to be added, but amendment of written statement is not accepted. Thereafter hearing was proceeded. While pending the appeals Garapati Soma Sekhara Rao died. Thereafter I.A.Nos. 152/2016 and 153/2016 was filed to add Garapati Sowjanya as sole legal heir to Garapati Soma Sekhararao along with Garapati Lakshmi Kantham. The same were allowed and grounds of appeal were also amended, wherein it was specifically pleaded that one Garapati Sowjanya and Garapati Lakshmi Kantham undisputedly became legal heirs of Soma Sekhararao, no need to discuss further about joint family status of the schedule property and Garapati Sowjanya has a right to lien mortgage and she is entitled 10 for redemption of mortgaged property on payment of Rs.2 lakhs with a direction to deliver the possession of the plaint schedule property.

23.It is brought to the notice of this court that pending the appeal Sowjanya has already deposited an amount of Rs.2 lakhs

before the trial court, it is lying before the learned trial court. The

learned counsel for Sowjanya and Soma Sekhararao vehemently argued that the property is a joint family property and she has a right to redeem. In fact, it is submitted that Soma Sekhararao has executed a gift deed and application is filed to receive the said gift, which was not filed earlier and consequently amend the pleadings. While pending those applications Garapati Soma Sekhararao died.

24.Consequently learned counsel for Sowjanya submitted that as Mr. Soma Sekhararao died, Sowjanya and Lakshmi Kantham became legal heirs and they are entitled to redeem the debt irrespective of the joint family status. To the said contention, learned counsel for Ramanamurthy submitted that there is no dispute with regard to the legal heirship and as a legal heir after death of Soma Sekhararao, Sowjanya has accrued right to redeem the property and no dispute to that extent.

25.Now, the points that would arise for determination in both the appeals are:

1. Whether Garapati Sowjanya is entitled to seek relief of redemption of mortgage or not?

2. Whether Garapati Sowjanya is entitled for seeking relief of accounting of income from the schedule property from 16.4.1998?

3. Whether Garapati Sowjanya is entitled for possession of schedule property?

4. Whether Garapati Sowjanya is entitled for future profits?

5. Whether Garapati Sowjanya is entitled for partition of schedule property?

6. Whether the schedule property is ancestral property or separate property of Garapati Somasekhara Rao?

7. Whether the mortgage deed dated 16.4.1998 is true, valid and binding on Garapati Sowjanya and Garapati Somasekhara Rao?

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8. Whether Anaparthi Venkata Ramana Murthy is entitled for preliminary decree and recovery of amount?

9. Whether Garapati Somasekhara Rao is entitled for counter claim?

10. Whether the interest levied is proper and liable to be scaled down?

11. To what relief?

26.The learned counsel for both parties have submitted that

Garapati Somasekhara Rao died. In such a case, Garapati Sowjanya, who is the only surviving daughter of Garapati Somasekhara Rao and Garapati Lakshmikantham, is the legal heir of the deceased Garapati Somasekhara Rao. Garapati Sowjanya is the plaintiff in OS No.67/1999 and 2nd defendant in OS No.158/2002. During the pendency of appeal after death of Garapati Somasekhara Rao, Garapati Sowjanya was impleaded as a legal heir to the deceased Garapati Somasekhara Rao. Therefore, Garapati Sowjanya as a plaintiff in OS No.67/1999 and 2nd defendant in OS No.158/2002 has come into picture.

27.The learned counsel for Mr. A.V.Ramana Murthy submits that prior to death, Garapati Somasekhara Rao had been contesting, the taking of loan by Somasekhara Rao was proved. The schedule property was mortgaged. The mortgage was usufructuary mortgage. Garapati Sowjanya was not a party to the mortgage, the schedule property was never a joint family property and she is not coparcener. Therefore, she cannot claim for partition or redemption or furnishing of accounts. Garapati Somasekhara Rao alone is entitled for redemption after paying the dues.

28.Now, the changed scenario is Garapati Sowjanya has become Garapati Somasekhara Rao after his death, as his legal heir. Now legal position is, she stepped into the shows of Garapati Somasekhara Rao as mortgagor. The mortgagor is always entitled to redeem the property after paying the due amounts. Once mortgagor pays the amount, expresses his willingness to clear the dues, the mortgagee has no option to redeliver the property. That legal position is not disputed by the learned counsel for Mr. A.V.Ramana Murthy. Therefore, now the grounds on which suit 12 for redemption filed by Garapati Sowjanya was dismissed that she is not a coparcener, the schedule property is not a joint family property, therefore, partition does not arise and she cannot claim redemption as well as for furnishing of accounts, becomes dilute.

29.Now, Garapati Sowjanya becomes Garapati Somasekhara

Rao and she as Garapati Somasekhara Rao mortgagor and seek redemption of usufructuary mortgaged property and all other reliefs as a mortgagor. The concept of joint property now also gets diluted as even according to A.V.Ramana Murthy the property is not a joint property and solely belongs to Garapati Somasekhara Rao, so Garapati Sowjanya becomes the legal heir of Garapati Somasekhara Rao. Therefore, it becomes exclusive property of Garapati Sowjanya. Therefore, the contention of joint property also cannot be considered. Therefore, most of the findings given by learned Judge that Garapati Sowjanya is not a coparcener, property is not a joint property, she is not entitled for redemption, not do not stand. In the light of background, now the points are to be answered.

POINT NO.5:-

Whether Garapati Sowjanya is entitled for partition of schedule property?

30.The learned Judge has given a finding that the schedule property is not a joint property and Garapati Sowjanya is not entitled for partition of schedule property. Now, this issue becomes irrelevant, as after death of Garapati Somasekhara Rao, his legal heir is Garapati Sowjanya. In such a case, she becomes the owner of the property. In such a case no partition is required, as no other legal heirs are there. Therefore, it is answered that Garapati Sowjanya is not entitled for partition of the suit schedule property. Accordingly, the point is answered.

POINT NO.6:- Whether the schedule property is ancestral property or separate property of Garapati Somasekhara Rao?

31.In the light of above discussion that after death of Garapati

Somasekhara Rao, Garapati Sowjanya has become his successor, there need not be any further discussion as it is ancestral property 13 or separate property. For the reason Garapati Sowjanya stepped into shoes of Garapati Somasekhara Rao. The learned counsel for Mr. A.V.Ramana Murthy did not oppose this legal position. No further discussion with regard to the property whether it is ancestral property or separate is required. For the reason the learned Judge held that the property is exclusive property of Somasekhara Rao. Now, after death of Somasekhara Rao, Garapati Sowjanya has become the successor. Therefore, I find that the property is the property of Garapati Somasekhara Rao alone.

POINT NO.7:- Whether the mortgage deed dated 16.4.1998 is true, valid and binding on Garapati Sowjanya and Garapati Somasekhara Rao?

32.Garapati Somasekhara Rao died and Garapati Sowjanya impleaded as a legal heir. A mortgage deed, according to Mr.A.V.Ramana Murthy was executed by Garapati Sowjanya. It is relevant that Garapati Sowjanya is seeking redemption of the schedule property basing on this mortgage deed Ex.B.1. In fact she has deposited principal amount of Rs.2 lakhs before the trial court. The contention of Garapati Somasekhara Rao was, the mortgage deed was executed fraudulently. The contention of Sowjanya was that Garapati Somasekhara Rao addicted to vices and when he was in abrogative condition, the deed was executed. However, Somasekhara Rao while he was alive and examined as witness as D.W.3, did not show any evidence that the document was fraudulently executed. Garapati Sowjanya through her mother was examined as P.W.1 and through her evidence also nothing much was elicited that the deed was executed fraudulently. P.W.1 deposed in her evidence that Mr. A.V.Ramana Murthy was in possession of the property. More so, Somasekhara Rao as well as Garapati Sowjanya sought for furnishing of accounts and this relief arising out of Ex.B.1 usufructuary mortgage deed. In the absence of any cogent evidence of fraudulent execution of Ex.B.1, more so, deposit of principal amount before the trial court by Garapati Sowjanya, as a principal amount and claiming the reliefs basing on Ex.B.1, would establish that mortgage deed dated 16.4.1998 is true, valid and it binds now 14 on Garapati Sowjanya as a mortgagor after death of Somasekhara Rao. Accordingly, the point is answered.

POINT Nos.1 and 3:-

1. Whether Garapati Sowjanya is entitled to seek relief of redemption of mortgage or not?

3. Whether Garapati Sowjanya is entitled for possession of schedule property?

33.The law of redemption is stated under Section 60 and right of usufructury mortgagor to recover possession is stated under Section 62 of Transfer of Property Act, 1882 (hereinafter referred to as ‘T.P. Act’), which reads as follows:

60. Right of mortgagor to redeem :- At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished :

Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.

The right conferred by this section is called a right to redeem, and a suit to enforce it is called a suit for redemption.

Nothing in the section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property

Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all 15 such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

62. Right of usufructury mortgagor to recover possession :- In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,

(a) where the mortgagee is authorised to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid ;

(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortgage-money, - when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage- money or the balance thereof or deposits it in Court as hereinafter provided.

34.The provision reads the mortgagor has a right to redeem after the principal became due he can pay the payment at proper time and place, then he can seek redemption of property. That right is a legal right. If the property is mortgaged extinguish by any means if mortgagor is ready to pay the mortgaged amount with interest thereon. The said legal position is again reiterated by the Honourable High Court in the case of M.Amarender Reddy Vs. Canara Bank and another 1 . The Honourable High Court at para Nos. 21, 23 and 24 was pleased to held that once a mortgage always a mortgage. So long as the mortgagor has a right to redeem the mortgage, he can always pay all the debt together with interest to the mortgagee and get back possession of the mortgaged property. This possession shall continue so long as the property was not sold under a final decree of sale brought about in accordance with the provisions of Order 34 of C.P.C., or any other law provided thereof.

35.The said observations of Honourable High Court do show that mortgagor had every right to redeem. Now, applying the provision of law laid down to the present facts of the case, the facts of this case do Somasekhara Rao had executed mortgage deed and Mr. A.V.Ramana Murthy is in possession of the schedule property. He is adjusting the yield out of the schedule property. Now, Garapati Sowjanya as a mortgagor in the place of Garapati 1 2016 (4) ALT 193 (D.B) 16

Somasekhara Rao, is entitled for redemption of mortgage after expressing her interest to clear the dues. In fact, she deposited the principal amount before the trial court. A mortgagor always having a right to redeem the property. Mortgagor is only a protector of the property and under usufructuary mortgage can claim income out of the property. But, never become owner of the property. Therefore, as Garapati Somasekhara Rao now Garapati Sowjanya is a legal heir and becoming mortgagor, is entitled for redemption of the property. Her right cannot be curtailed. Even according to P.W.1 and evidence let in Mr. A.V.Ramana Murthy is in possession of the schedule property. Therefore, after paying the due amounts under mortgage deed Ex.B.1, Garapati Sowjanya is entitled for redemption of the property and Mr. A.V. Ramana Murthy is entitled for redemption as well as possession of the schedule property. The defence that as a third party or the property is not ancestral property or joint property, Garaparti Sowjanya is not entitled for possession or redemption does sustain as she is now contesting as Garapati Somasekhara Rao after death of her father. Accordingly, the points are answered.

36.As per the above discussion most of the aspects, which were challenged by both parties on the ground that Garapati Sowjanya is not entitled for redemption or possession becomes not acceptable. If the mortgagor is ready to pay the mortgage debt, the mortgagee has to deliver the property. The legal position with regard to Garapati Sowjanya has become the legal heirs and as mortgagor, is not in dispute. Therefore, as mortgagor she is entitled when she expresses ready and willingness to pay the amount to take the property. No further objections would be there either legally or factually.

37.In the light of above discussion, I am of the view that it is safely concluded that Garapati Sowjanya is entitled to seek relief of redemption of mortgaged property as now she became the mortgagor in the shoes of her father and it applies under Section 60 of T.P. Act. Under Section 62 of T.P. Act, the mortgagor to the usufructury mortgage is always entitled to recover the schedule property after mortgaged amount is paid. Accordingly, the point is answered.

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38.Now, the other relevant aspects that would come into picture are, (1) with regard to the counter claim by Somasekhara Rao, (2) Claim by Garapati Sowjanya for furnishing of accounts and (3) recovery of amount sought for by Mr. A.V.Ramana Murthy, failing which, sale of mortgage property. That is to say whether the usufructuary mortgage, the loan amount was cleared by Somasekhara Rao or not, if the claim of Mr.A.V. Ramana Murthy is that Somasekhara Rao do not pay the amount even after deducting the income from the property is he entitled for due amount and till then can he hold possession of the property or on failing to pay of amount, can he go for sale of the property. If it is proved that no due amounts are there, he is not entitled to hold the possession and consequently has to deliver the possession to Somasekhara Rao. The relevant points to be discussed are,

1. Whether Garapati Sowjanya is entitled for seeking relief of accounting of income from the schedule property from 16.4.1998?

4. Whether Garapati Sowjanya is entitled for future profits?

8. Whether Anaparthi Venkata Ramana Murthy is entitled for preliminary decree and recovery of amount?

9. Whether Garapati Somasekhara Rao is entitled for counter claim?

10. Whether the interest levied is proper and liable to be scaled down?

39.OS No.158/2002 is the suit filed by Mr. A.V.Ramana Murthy on the grounds that Garapati Somasekhara Rao has failed to discharge his debt and therefore, he is entitled for preliminary decree. For deposit of suit amount with interest and expenses and failing which sale of the property extinguishing the right of redemption.

40.The initial burden lies on Mr. A.V.Ramana Murthy that there is a due amount. He relied on accounts of calculation attached along with plaint. Prior to that it is relevant to go through the contents of mortgage deed under Ex.B.1. It is held by this court that there is no doubt or cloud being not proved by Garapati Somasekhara Rao or Garapati Sowjanya with regard to non-execution of mortgage deed and binding. Therefore, the mortgage deed binds both parties including Garapati Sowjanya 18 now. As per Ex.B.1, principal amount is Rs.2 lakhs and rate of interest is 24% per annum. The mortgage details are as follows:

Date of Mortgage 16.4.1998. Name of the Mortgager Second defendant (Garapati Soma Sekhara Rao) Name of the Mortgagee First Defendant (Anaparthi Venkata Ramana Murthy) Sum secured Rs.2,00,000/-. Rate of interest 24% per annum. Mode of payment of Mortgage has to cultivate the interest mortgaged property and has to receive the income from the produce and has to appropriate the value of 46.25 kata bags of paddy every year in lieu of interest of said mortgage debt.

Due date for discharge 15.4.2002. of mortgage money Mortgage hypothecate Plaint schedule property.

41.The mortgage deed provides the condition that the

Mortgager can redeem the mortgage property by paying the entire mortgage money. The time is stipulated for discharge is 15.4.2002. Mr. A.V.Ramana Murthy was permitted to cultivate the schedule property as a lessee. Yearly returns of 25 bags per acre i.e., 46.25 kata bags for Ac.1-85 cents of schedule land be deducted as the value of the same towards interest after Makara Sankranthi every year.

42.The above extract of Ex.B.1 deed show the mode of adjustment of income yield out of the schedule property where Mr. A.V.Ramana Murthy was permitted to cultivate and adjust that amount towards his interest. Garapati Sowjanya though in her suit challenged the maintainability of Ex.B.1, but during the course of proceedings as well as in the appeal she did not raise much objections with regard to Ex.B.1. Further, relied on payment of mortgage amount and seeking redemption of the property. This shows that she took objection of Ex.B.1 as fraudulently executed, but she came forward with deposit of mortgage money and also seeking redemption on the ground that she paid the mortgage money. Therefore, the stand challenging Ex.B.1 does not arise. Now, it is to be seen whether the calculation i.e., levied by Mr. A.V.Ramana Murthy is arriving the due amounts as on the date of filing the suit. Mr. A.V.Ramana Murthy has calculated the principal amount as Rs.2 lakhs and 19 levied interest at 24% on the principal amount. Thereafter he deducted the amounts at the rate of Rs.360/- per bag of 46.25 bags and arrived to the amount, which according to him by 21.12.2002 is Rs.3,82,440/-

43.It is the contention of learned counsel for Garapati Sowjanya and Garapati Somasekhara Rao that 24% of interest is not valid. Garapati Somasekhararao was an agriculturist, therefore, interest should be 12% or 6% calculating at 24% is not valid. The learned counsel also objected that Mr. A.V.Ramana Murthy has paid amount of Rs.35,683/- to Varahi Agricultural Co-operative society and included the same to the due amounts.

44.Garapati Sowjanya has filed a calculation memo, in reply to the calculation levied by Mr. A.V.Ramana Murthy. He calculated the principal amount as Rs.2 lakhs and added interest at 12% per annum. She calculated 90 kata bags for two crops, at the rate of 45 bags per crop and calculated a total amount at the rate of Rs.360/- and he deducted expenses amounts and calculated the interest further. Therefore, according to her calculation, the amount due is Rs.90,875/- with interest, it amounts to Rs.2,99,041/-. I have gone through these two calculation memos in the light of Ex.B.1. Ex.B.1 the mode of recovery of interest is specifically stated 24% interest on principal amount and 46.25 kata bags. It is not specifically stated either for two crops or one crop. In Ex.B.1 it is not specifically established the mode of recovery is stated under Ex.B.1 is to be valid. Now, in my view it cannot be said that 90 kata bags for two crops and it can be valued.

45.Even otherwise Garapati Sowjanya through P.Ws.1 to 5, has not specifically let in evidence with regard to the calculation of the interest anomalies in calculating the due amount by Mr. A.V.Ramana Murthy or to support her counter claim. When liberal meaning of Ex.B.1 is applied that for adjustment of interest recovery mode, that clause is to be followed rather than Sowjanya or Somasekhara Rao for calculating interest. As discussed above after going through the evidence of P.Ws.1 to 5, nothing much elicited to support their claim or D.W.1 to D.W.3 evidence do not show any evidence contra to Ex.B.1. Therefore, I am of the view that calculations levied by Mr. A.V.Ramana Murthy are proper, 20

Garapati Sowjanya is not entitled for furnishing of accounts and counter claim is not sustained.

46.Therefore, in the light of above discussions it can be safely concluded that Garapati Sowjanya is not entitled for account for income from the schedule property, not entitled for future profits, not entitled for preliminary decree and recover of amount as well as she is not entitled for counter claim. Interest left as discussed above. Accordingly the points are answered.

POINT NO.11:-

To what relief?

47.In the light of discussion made above, it is admitted by both counsels that Garapati Sowjanya deposited Rs.2 lakhs before the trial court on 29.6.2006 and it is lying in Civil Courts Accounts. From that period interest might have been accrued. The principal amount is proved to be of Rs.2 lakhs.

48.In the light of holding points in favour of Garapati Sowjanya that she is entitled for redeem the property, after paying the due amounts, as it is established by Mr. A.V.Ramana Murthy the due amount is Rs.3,82,440/- .

49.It is relevant that the learned Judge while answering the issue dismissed the suit OS No.67/1999 and counter claim in OS No.158/2002 by Garapati Sowjanya and granted preliminary decree in OS No.158/2002 is requires to be interfered by this court.

50.In the result,

(a)A.S. No.183/2007 is allowed setting aside the judgment and decree dated 5.2.2007 passed in OS No.67/1999 on the file of Senior Civil Judge, Ramachandrapuram and

OS No.67/1999 is hereby decreed as follows:

(i)Garapati Sowjanya is hereby declared as entitled to redeem the schedule property.

(ii)Mr. A.V.Ramana Murthy is hereby directed to deliver the mortgaged property and relevant documents relating to the mortgaged property, which are in his possession.

(iii)Mr. A.V.Ramana Murthy is hereby directed to deliver the possession of mortgaged property and 21 documents subject to payment of Rs.3,82,440/- due amount with interest on principal amount of Rs.2,00,000/- from the date of filing the suit OS No.158/2002 till 29.6.2006.

(iv)Garapati Sowjanya and Mr. A.V.Ramana Murthy are permitted to deduct the amount of Rs.2,00,000/- deposited by Garapati Sowjanya on 29.6.2006 with accrued interest from 2006 till the date of delivery of possession and documents from the due amounts.

(v)Both parties are permitted to file calculation memos of compliance of decree before the trial court within two months from the date of decree.

(vi)The relief sought for cancellation of mortgage deed and declaration that mortgage deed is invalid and binding and the relief for partition of the plaint schedule property and rendition of accounts, are hereby dismissed.

(b)A.S.No.203/2007 is allowed and the judgment and decree dated 5.2.2007 passed in OS No.158/2002 on the file of Senior Civil Judge, Ramachandrapuram granting of preliminary decree with subsequent interest at 6% per annum from the date of suit till realization on principal sum of Rs.2,00,000/- and time for redemption six months against 1st defendant i.e., Garapati Somasekhara Rao is hereby set aside and the claim of Mr. A.V.Ramana Murthy in OS No.158/2002 is hereby dismissed. Dismissal of counter claims by Garapati Somasekhara Rao and Garapati Sowjanya is hereby confirmed.

(c)Both parties in both the appeals shall bear their own costs.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the open court this the 29th day of June, 2016.

JUDGE

FAMILY COURT-CUM-IX ADDL. DISTRICT COURT,

RAJAMAHENDRAVARAM.

Copy to the Senior Civil Judge, Ramachandrapuram.

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IN THE COURT OF JUDGE, FAMILY COURT-CUM-IX ADDL.

DISTRICT & SESSIONS JUDGE:: EAST GODAVARI AT

RAJAMAHENDRAVARAM

PRESENT:- Purushottam Kumar Chintalapudi

Judge,

Family Court-cum-IX Addl. District & Sessions Judge

Monday the 25th day of July, 2016

ORIGINAL SUIT NO.27/2009

Between: Gude Bhavani Sujatha. … Plaintiff.

A n d 1.Muggulla Srinivasa Rao. 2.M.V.V.S.Appa Rao. 3.M.Bhagyalakshmi. …. Defendants.

This suit coming on 22.7.2016 for final hearing in the presence of Sri S.Kumar, Advocate for plaintiff, Sri Ch.Venkateswara Rau, advocate for defendants, and the matter having stood over for consideration till this day, this court made the following:

J U D G M E N T

1.This suit is filed for a decree of Rs.60,98,000/- with interest at 18% petitioner annum. Plaintiff is the wife. 1st defendant is the husband. 2nd defendant and 3rd defendant are the father-in-law and mother-in-law of the plaintiff.

2.The case of the plaintiff is that, a.Plaintiff is resident of Rajahmundry. She did Bachelor of

Physio Therapy and M.Sc., (Medical Anatomy). By the time of marriage she was studying M.Sc., and she was doing part time job. She has two brothers, who are elder to her.

b.1st defendant was working in Doha Qatar as Software engineer. 2nd defendant and 3rd defendant are his parents, who are permanent residents of Hyderabad. One Mr. Singudasu Satyanarayana had brought marriage proposals with the maternal grandfather of 1st defendant. After going through the bio data of plaintiff in June, 2007, maternal grandparents of 1st defendant came and saw the plaintiff and they expressed 1st defendant’s liking for plaintiff and marriage negations took place. Engagement was fixed on 6.7.2007. The engagement was fixed at Anam Rotary Hall, Rajahmundry. Prior to engagement date i.e., 5.7.2007 2 defendants came to Rajahmundry and stayed at maternal grandfather’s house of 1st defendant and all of a sudden stated that 1st defendant’s grandfathers have no information of engagement and wanted to leave. With much persuasion the betrothal function was performed on 6.7.2007. 3rd defendant is domineering personality. After engagement plaintiff came to know that 1st defendant cancelled alliance earlier with a girl of Dudukuru village of West Godavari District as dowry was less.

c.Marriage was negotiated and organised by Immandi

Ramakishna Das, who is good friend of plaintiff’s father. During the marriage negotiations defendants have demanded:

i.Rs.8.30 lakhs and as per their wish younger brother of plaintiff transferred the said amount to 3rd defendant. ii.Rs.20,000/- cash on 5.9.2007 given to grandparents of 1st defendant. iii.Marrige expenses of Rs.5 lakhs spent by the parents of the plaintiff and her people. iv.Amount paid Rs.30,000/- to D.2 and D.3 towards furniture. v.Rs.35,000/- towards marriage clothes. vi.Rs.50,000/- paid to the D.3 in May, 2008 for purchase of clothes. vii.45 sovereigns of gold ornaments. viii.2 Kgs silver i.e., two silver plates and 2 silver tumblers. The above demands were made prior to marriage.

d.Marriage was performed, reception was arranged subsequently. To attend the reception defendants have started demanding of Rs.15 lakhs and unless and until that amount was given they did not want to attend reception. Due to the attitude of 1st defendant, reception was not attended by the newly wedded couple. Plaintiff’s parents to save their face have to state to the guests who attended to the reception that they have been to Annavaram.

e.The rest of the statements made by the plaintiff are with regard to harassment such as stamping of Visa to Doha to join 1st defendant, harassment during her stay at in-laws’ house, the attitude of D.2 and D.3 while she was at her in- laws house in causing injuries to her. Plaintiff pleaded that after marriage 12.9.2007 defendant left to Doha and after he reached Doha he sent Visa papers to the plaintiff, on 22.9.2007 plaintiff supposed to leave Doha, but as ECNR 3 stamping there, she had a problem. Because of which from 12.9.2007 to 6.10.2007, she stayed at her in-laws house, during which period she was put to untold harassment. Finally she could arrange stamping to Doha. She joined 1st defendant on 6.10.2007 and stayed there till 17.12.2007. She was subjected to harassment by plaintiff cruelly, not provided food, medicines and love and care. On 17.12.2007 1st defendant brought the plaintiff to Hyderabad. They demanded additional dowry of Rs.15 lakhs again.

f.During her stay Defendants did not allow her to talk with her parents. They confined her to a room between the period 23.12.2007 to 15.1.2008 with a demand for additional dowry, else they would give divorce to plaintiff and would go for another girl for marriage. She pleaded that her educational certificates and passport, clothes and gold jewellery of plaintiff were retained with the defendants.

g.On 15.1.2008 plaintiff and 1st defendant returned to Doha.

1st defendant is a believer in astrology and to beget children on the advice of astrologer he did not provide non-vegetarian food. 1st defendant also had suspicious character. She was denied complete access to talk in telephone when she was at Doha. She was not allowed to talk to her parents, even on her birth day.

h.On 2.5.2008 2nd defendant and 3rd defendant and the maternal grandparents of 1st defendant received amount of Rs.15 lakhs from the plaintiff’s parents at the house of parents of plaintiff. Mr. I.R.K.Das, Bikkina Manga Devi were the witnesses for the said transaction. Plaintiff became pregnant while she was in Doha. 1st defendant did not provide her proper care and medicines. Due to suspicion he used to shift the residence at Doha. Plaintiff during 7th month pregnancy expressed to go to India for delivery. On that he demanded her brothers for arranging flight tickets and accordingly tickets were arranged by her brothers. Plaintiff reached Hyderabad D.2 and D.3 retained all her gold jewellery, original certificates etc, obtained signatures on blank NJ stamps. 1st defendant also obtained signatures on white blank papers.

4 i.While she was at her parents house defendants demanded to arrange Rs.50 lakhs. When her parents expressed their inability, they threatened they will face serious consequences. On 30.9.2008 baby boy was born, plaintiff tried to inform defendants, but they did not listen. They again started demanding additional dowry. Meanwhile 1st defendant issued legal notice. She got issued reply. Plaintiff filed the suit as she was subjected to untold mental agony, harassment, cruelty and she was abandoned by 1st defendant. Therefore, she is seeking return of money presented by her and damages.

Pleadings of Defendant:

3.1st defendant filed written statement. His case is that, a.He admitted the marital relationship. He denied all other allegations of untold harassment either by himself or D.2 and D.3. All the allegations of harassment are denied.

b.His case is that, with regard to demand of property to be purchased at Rajahmundry for the benefit of plaintiff to do her job, he was harassed to arranged money for them.

c.His case is that, the plaintiff is not having a good attitude towards him. He never demanded any dowry. He took a plea that Rs.8.30 lakhs was transferred to 3rd defendant for the purpose of plaintiff for purchasing items for the plaintiff, but not as a dowry to 1st defendant. She spent luxurious life. She used to admonish the defendants. She abused him. It was the plaintiff who caused lot of mental agony while she was at her in-laws house. On 8.12.2007 they have to come to India as 2nd defendant was admitted in hospital for medical treatment and during that period plaintiff harassed the defendants.

d.He denied all other allegations leveled by the plaintiff. He denied that he demanded additional dowry of Rs.50, which was arranged by selling away house property and it was paid in the presence of I.R.K.Das and Bikkina Manga Devi. He denied that they are in a position of demanding plaintiff. In fact plaintiff has to return an amount of Rs.5 laksh which 5 was held up with her belonging to 1st defendant. Therefore, he claiming this amount as a counter claim. He denied that he is liable to pay damages. He has not caused any injury to the plaintiff, in turn plaintiff is liable to pay Rs.5 lakhs as damages and under counter claim he sought the said amount. He sought allow the counter claim, dismiss the suit for damages claimed by the plaintiff, direct the plaintiff to pay damages at Rs.5 lakhs and to direct the plaintiff to pay Rs.5 lakhs to 1st defendant with interest.

4.Defendants 2 and 3 adopted the written statement filed by 1st defendant.

5.Plaintiff filed rejoinder/written statement to D.1’s counter claim. Denying counter claim by 1st defendant, she took a plea that if defendants give assurance that the plaintiff and the child would be looked after properly without any harassment and 1st defendant willing to live in India by taking employment anywhere in India, plaintiff is ready to join 1st defendant and give up all her claims in all pending matters after she satisfied the bonafides of the defendants. The defendants are money minded, they wanted to acquire the assets. She denied all other allegations leveled by the defendants. No material is filed for counter claim. The allegation that plaintiff is not liable to pay amount of Rs.5 lakhs is denied. She denied that she was entrusted with Rs.5 lakhs at any time. The counter claim is made as a counterblast. There is no iota of evidence for counter claim and sought to dismiss the counter claim and allow the suit.

Issues:

6.After completion of the pleadings, the following issues are settled :

1.Whether the plaintiff is entitled to a decree as claimed in the suit?

2.Whether Rs.8.30 lakhs transferred by younger brother of plaintiff to the bank account of defendant No.3 and whether that amount is liable to be refunded to the plaintiff?

3.Whether the plaintiff paid Rs.20,000/- cash on 5.9.2007 at Anand Regency, Rajahmundry to the grandparents of defendant No.1?

6

4.Whether Rs.5,00,000/- was spent by parents of plaintiff for the marriage?

5.Whether plaintiff entrust Rs.30,000/- to defendant No.2 and defendant No.3 towards furniture?

6.Whether Rs.35,000/- was paid for marriage clothes by plaintiff to the defendants?

7.Whether Rs.50,000/- was paid to defendant No.3 in May- 2008 for clothes of plaintiff?

8.Whether plaintiff is entitled for 45 sovereigns of gold as claimed in para-9 ((7) of plaint) whether plaintiff is entitled to 2 Kgs of silver and 2 silver plates 2 tumblers as claimed in para (8) of plaint?

9.Whether plaintiff is entitled to Rs.25 lakhs towards damages, whether plaintiff paid D.1 to D.3 and maternal grand parents of defendant No.1 on 2.5.2008 an amount of Rs.5,00,000/-?

10.Whether defendant No.1 is entitled to Rs.5,00,000/- entrusted to plaintiff by D.1, whether defendant No.1 is entitled to 14 sovereigns of gold entrusted to plaintiff by D.1?

11.Whether defendant No.1 is entitled to 1 Kg silver plate entrusted to plaintiff by D.1?

12.Whether D.1 to D.3 are entitled to Rs.5,00,000/- towards damages?

13.To what relief?

Evidence:

7.Plaintiff has let in evidence by examining herself as P.W.1 and her mother as P.W.2 and one Mr. I.R.K. Das as P.W.3. Through P.W.1 Exs.A.1 to A.3 were marked. Through P.W.2 Exs.A.4 to A.18 were marked. Exs.A.4 to A.18 are marked with objections as P.W.2 is not the transacting person. Exs.A.4 to A.18 are certified copies. Defendants under confrontation Ex.B.1 deposition of P.W.3 in the criminal complaint is marked.

8.After completion of the plaintiff’s evidence though sufficient time is given, the defendants did not adduce evidence. D.2 filed chief affidavit examining as D.W.1. Subsequently remained absent in spite of giving ample time. His evidence was eschewed. Subsequently 1st defendant filed chief affidavit examining himself as D.W.2. He also remained absent. After giving ample of time extending time under Section 148 of C.P.C. applications, D.W.2 evidence was eschewed. Again D.W.2 filed applications to set aside eschewed order and the same were allowed conditionally. Again 7

D.W.2 remained absent and sought for extension of time in I.A.642/2016, the said I.A was dismissed on 22.7.2016. D.W.2’s evidence was eschewed. The defendants evidence was closed.

9.Perused the record, gone through the evidence, pleadings and proceedings before this court. Heard plaintiff. No submissions from defendant.

10.The suit is filed for recovery of amount and in the counter claim defendants sought counter claim. The counter claim is a sort of suit which is to be proved by the defendants. Plaintiff had already adduced evidence in her case as well as the counter claim. The defendants did not adduce evidence. Therefore, their evidence, the counter claim also remained absent and plaintiff’s evidence in her suit as an answer to the counter claim was examined.

Proceedings before this court:

10.It is relevant to mention the proceedings that were happened showing the conduct of the defendants in adducing evidence. Plaintiff evidence was closed on 18.1.2016 and the matter was posted for defendants evidence on 22.1.2016. From 22.1.2016, time has been extended for defendants evidence. On 15.2.2016 change of vakalat was recorded. Again time is given for defendants evidence on conditions. Directions of the Honourale High Court is there for disposal of oldest matters. Till 3.3.2016 time has been extended for defendants evidence. As defendants did not adduce evidence, defendants evidence was closed on 3.3.2016. Plaintiff had submitted arguments and again when the matter was posted for defendants hearing, 2nd defendant appeared in person, filed application to reopen defendants evidence with chief affidavit, the same were allowed on 12.4.2016 conditionally to appear for cross- examination. On 12.4.2016 D.w.1 remained absent, did not attend and comply the condition. Hence, D.W.1 evidence was eschewed while dismissing I.A.No.392/2016 not granting extention of time.

11.On 26.4.2016 chief affidavit of 1st defendant as D.W.2 was filed along with receiving documents applications, the same was allowed on 2.6.2016 as meanwhile summer vacation was coming. D.W.2 remain absent, time has been extended from 2.6.2016 to 30.6.2016 on applications under Section 148 of (Civil Procedure 8

Code hereafter referred to as C.P.C. D.W.2 remained absent, his evidence was eschewed on 30/06/2016 as conditions were not complied. Again D.W.2 came on 4.7.2016 after his evidence was eschewed, filed applications to set aside the eschiew order under I.A.No.614/2016 and I.A.No.615/2016, the same were allowed vide orders dated 14/06/2016, setting aside the eschew of D.W.2 evidence subject to appearance of D.W.2 and submitting for cross without fail on 22.7.2016 as DW 2 reported he is ready for submitting himself for examination.

12.D.W.2 did not appear. The record shows that D.W.2 filed chief affidavit on 26.4.2016 along with application to receive documents. Since summer vacation coming up, matter posted to reopening date. D.W.2 did not appear, documents petition was allowed, thereafter posted for appearance of D.W.2 and cross and till 30.6.2016 entire month of June, D.W.2 did not appear. Matter has been adjourned under Section 148 of Cr.P.C., time to time on the same grounds taking of treatment.

13.When the evidence was eschewed on 30.6.2016 again he filed applications to set aside eschew order on the ground that he is submitting himself for cross-examination. Nowhere he stated that he is going to Dubai.

14. When the matter was conditionally posted for appearance of

D.W.2 to 22.7.2016 as he himself pleaded that he is ready for cross-examination,on 22.7.2016 he came up with application that he went to Dubai on 11.7.2016. He is conveniently choosing the time as 7.7.2016 that he appeared and Honourbale High Court was pleased to declare that day as holiday. From 7.7.2016 adjournments took place, but at no point of time D.W.2 choose to appear nor brought to notice of court about he been to Dubai. He did not file any document to show he been Dubai.

15.It is stated under Selam Bar Association case that the conduct of the parties if not proper and only to drag on the matter courts cannot extend time extending of its own conditions. This court for D.W.2 already extended time on several occasions. For D.W.1 also extended time from 18.1.2016 till 19.4.2016. All opportunities were given. But, defendant is not showing his 9 genuineness to proceed with the case. As reproduced the proceedings and affidavits on one pretext or the other at his choice he is taking the plea for adjournment. No record is filed before this court that defendant had actually left to Dubai after 4/7/2016. More so he did not plead in earlier affidavits that he is leaving to Dubai. In those circumstances defendants evidence is closed, matter taken up for disposal. Again on the date of judgment, application was filed by the junior counsels affidavit seeking time for defendant's evidence. When the said application was taken none had made representation. It was filed and left unattended. None to represent. The learned junior counsel who signed the affidavit also did not turn up. The said application was returned. None represented.

Discussion:

14.It is relevant that no evidence from the defendants was let in though time was given. However, plaintiff initially has to prove the case, thereafter case of the defendants do arise and effect in the absence of their evidence. In Maya Devi Vs. Lalta Prasa 1

Honourable Supreme Court was pleased to held that whether

defendant comes to witness box or not, plaintiff has to prove her case. Relying on the above ruling, now the plaintiff’s case is to be seen whether she discharged her burden basing on her pleadings and evidence. This court settled 13 issues. Out of which the relevant issues which in the light of pleadings are in the light of pleadings, issue No.1 which invariably covers each issue of transferring of amount of Rs.8.3 lakhs, Rs.20,000/- in cash to grandparents of D.1 and Rs.5 lakhs spent by the parents of plaintiff for marriage, Rs.30,000/- given to D.2, Rs.35,000/- paid for marriage expenses, for purchasing clothes Rs.50,000/- to D.3, return of gold ornaments and damages of Rs.25 lakhs i.e., issue No.2 to 9 are internal issue No.1. Therefore, while answering issue No.1in my view, all these issues would be answered.

15.With regard to the counter claim issue No.10 deals with as 1st defendant is entitled for Rs.5 lakhs, 1 Kg silver and Rs.5 lakhs towards damages. Issue No.10 covers issue No.11 and 12.

1 2014 (3) ALD 66 (SC) 10

16.Issue No.13 relates to the relief. Therefore, I am of the view that issue Nos.1 and 10 if are answered, it covers all other issues.

ISSUE NOs.1 to 9:-

18.The suit relief sought for is Rs.60,98,000/-. Out of which

Rs.8.30 lakhs is claimed as amount transferred by younger brother of plaintiff to 3rd defendant’s account, Rs.15 lakhs paid by selling away the properties as additional dowry, Rs.25 lakhs as damages.

19.The marital relationship between the parties is not in dispute. The educational qualifications are not in dispute. The performance of marriage at Rajahmundry by the parents of plaintiff is not in dispute. With regard to the claim of Rs.8.30 lakhs no evidence is required, as defendants themselves admitted that Rs.8.30 lakhs was transferred to the account of 3rd defendant. But, their claim is that amount was used for the purpose of plaintiff expenses for the marriage. When there is admission of transfer of that amount, I am of the view that no further discussion is required with regard to the burden of plaintiff to prove Rs.8.3 lakhs was given to defendants.

20.Now, the burden shifts to the defendant that the said amount was used for the purpose of plaintiff’s marriage. It is relevant that defendants have not come to the witness box though ample time was given as discussed above. Therefore, defendants have failed to discharge the burden of using of Rs.8.30 lakhs towards plaintiff’s marriage. In such a case, plaintiff’s plea has to be believed that an amount of Rs.8.30 lakhs was transferred to 3rd defendant’s account.

21.With regard to the amounts spent for Rs.5 lakhs for plaintiff’s marriage, for Rs.20,000/- given to grandparents of 1st defendant, Rs.30,000/- entrusted to the 2nd defendant for furniture, Rs.35,000/- paid for marriage clothes by plaintiff to the defendant, Rs.50,000/- was paid to defendant No.3 for clothes of plaintiff, are to be independently proved. In the evidence of P.W.1 and P.W.2 they categorically stated that they do not have any documentary proof to show that the said amounts cannot be considered as given in the absence of proof. In such a case, 11 plaintiff failed to discharge her burden initially. Then to disprove the issues burden does not shift to the defendants. Therefore, the plaintiff is not entitled for the said amounts.

22.With regard to 45 sovereigns of gold claimed by the plaintiff, the description of which given are, 1) gold plain haram – 5 ½ sovereigns, 2) gold bangles – 10 sovereigns, 3) gold big bangle – 10 sovereigns, 4) gold Nallapoosalu haram – 4 sovereigns, 5) gold plain necklace – 4 sovereings, 6) gold necklace (jalar model) – 3 sovereigns, 7) gold chandraharams – 5 sovereigns, 8)gold bangles – 5 sovereigns, 9) gold rings – 2 ½ sovereigns and 10) gold ear studs and champaswaralu – 3 ½ sovereigns. Plaintiff has not marked any document to show that the items were purchased by the plaintiff’s parents. On the other hand, the defendants have denied this aspect. Therefore, burden always lies on the plaintiff to prove it. In the absence of documentary evidence, it becomes difficult to accept the contention of plaintiff for 45 sovereigns of gold was entrusted to the defendant. At least marriage photographs or independent evidence ought to have been filed by the plaintiff, but did not do so. Defendants in the cross-examination to P.W.1, P.W.2 and P.W.3 have categorically put a suggestion denying these articles, burden always lies on the plaintiff to prove it initially. In this aspect plaintiff has failed to discharge the burden. Then burden does not shift to defendant to disprove it.

23.With regard to claim of Rs.15 lakhs alleged to be given to the defendants by selling away the properties, P.W.2 mother of the plaintiff was cross-examined on this aspect. She marked Ex.A.4 to A.18 to show that the properties were transferred as well as taxes were paid for the transactions. But, defendants objected as P.W.2 is not a party to the proceedings. However, it is not in dispute that those documents were related while father of the plaintiff was alive. The documents themselves speak the transaction. The defendants did not deny that father of the plaintiff has not done those transactions. But, to the extent of P.W.2 is not a party to the suit, I am unable to accept that contention. Especially to this aspect of Rs.15 lakhs defendants have tried to establish that on the date of paying the amount on 2.5.2008 D.2 and D.3 were at Hyderabad, but not at Rajahmundry. A suggestion was placed that the amount of Rs.15 lakhs to D.2 and D.3 in the presence of I.R.K.Das and B.Manga Devi was not given. The same were denied.

12

24.Plaintiff examined Ramakrishna Das as P.W.3. He filed chief affidavit on the lines of P.W.1 and P.W.2 together. P.W.3 specifically deposed that plaintiff was not allowed to talk to her parents even on her birth day. In order to see the plaintiff’s family life run smoothly, they insisted to arrange additional dowry. On that plaintiffs father has sold away house and house site and informed to D.2 and D.3 that amount was ready. Then plaintiff was allowed to go to Rajahmundry. On 2.5.2008, defendants 2 and 3 and grandparents of 1st defendant accompanied the plaintiff and they received the amount of Rs.15 lakhs from the parents of plaintiff at their house on 2.5.2008. Thereafter plaintiff was sent to Doha. Himself and one Bikkina Manga Devi were present. Amount of Rs.15 lakhs was paid to the parents and grandparents of the defendant.

25. In this aspect P.W.3 was cross-examined. He deposed that he has no personal knowledge of selling away the house and site by plaintiff’s father. He was not a witness signatory to the any of the sale deed. He denied to the suggestion that father of plaintiff did not give any amount of Rs.15 lakhs by selling away house and house site properties. Denied to the suggestion that D.2 and D.3 were at Hyderabad on 2.5.2008. They never came to Rajahmundry on the said date for receiving of Rs.15 lakhs. Denied suggestion that never gave an amount of Rs.15 lakhs. The suggestions were denied.

26.P.W.3, categorically stated that he was present during the payment of amount. Plaintiff in her case specifically pleaded and pointed out this person. Under Indian Evidence Act, if a specific person name having knowledge of the transaction, he has to speak about that transaction.

27.In the present case, plaintiff has let in evidence by examining P.W.3, who was referred in the plaint as a witness. The defendants have denied that no such transaction took place by way of suggestion. Defendants did not deny the association of P.W.3 in arranging the marriage, marriage talks, presence at the time of marriage etc. It is not the case of defendants that P.W.3 was alien to either of the parties or only known person to the plaintiff, who was pressed into evidence with a malafide intention. Only suggestions were made. If suggestion is made, then burden lies on the defendant to support their suggestions. By examining 13

P.W.3 plaintiff discharged her burden. Now, burden shifts to defendant to disprove.

28.As discussed above, P.W.3 is not stated to be person not concerned anywhere to both parties. The defendants by simply denying they cannot absolve their burden. Defendants did not come to the witness box to support their suggestions. No evidence was let in that on 2.5.2008 D.2 and D.3 were not yet Rajahmundry but at Hyderabad. If a person takes the plea of alibi the burden lies to prove. In such a case, when P.W.3 was examined plaintiff discharged her burden. Burden lies on defendants to disprove it, but they failed to answer by coming into witness box. Though D.W.1 and D.W.2 chief affidavits were filed, they were eschewed, they cannot be gone into. Simple suggestions do not make out case of defendants when P.W.1, P.W.2 and P.W.3 categorically states of giving amount of Rs.15 lakhs. Further, the said amount transaction is evidenced under Exs.A.4 to A.18 including complaints to I.T. Department by the defendant. Therefore, plaintiff’s evidence with regard to Rs.15 lakhs is to be believed.

29.In the light of above discussion, I am of the view that issue

Nos.2 to 8 cannot be answered in favour of the plaintiff, as no documentary evidence to that extent. With regard to the claim of Rs.15 lakhs, plaintiff is able to establish her case. With regard to claim of damages of Rs.25 lakhs, plaintiff did not specifically plead how they arrived to the amount. Most of the allegations are matrimonial allegations of cruelty and harassment. Plaintiff has already filed different cases of maintenance, DVC case and restitution of conjugal rights and criminal complaint. Cruelty is subject matter of those proceedings and no final adjudication except in maintenance case appears to have not been made. In such a case, in the absence of proof of cruelty and specific claim for arriving at Rs.25 lakhs damages her claim cannot be considered. Accordingly, issue No.9 is answered in favour of the plaintiff for Rs.15 lakhs, but not for Rs.25 lakhs as damages.

30.It is relevant to state here that parties have filed different cases against each other and some of the cases are pending such as DVC etc. This suit is filed for recovery of amount. This court is deciding the issues only concerned to the amounts mentioned in 14 this suit. This court is not adjudicating any of the matrimonial disputes effecting the respective cases of cruelty, harassment and dowry. It is only treated as amounts given to be recovered as civil suit, but not adjudicating anything otherwise. These findings are relevant only to this case.

ISSUE NO.10 TO 12:-

31.These issues are deals with counter claim and damages by defendants. To prove counter claim defendants have to come to the witness box, as in a counter claim such defence becomes as plaintiff. They have to prove their case independently. In this case as discussed above defendants have not come forward to adduce evidence to discharge their burden in the claim by plaintiff as well as plaintiffs in the counter claim. In such a case, defendants as plaintiffs in their claim have not discharged their burden and not entitled for damages as well as counter claim including 1 Kg silver plate. Accordingly, issue Nos.10, 11 and 12 are answered against the defendants.

32.It is relevant to state here that in the case of Bharat

Petroleum Corporation Limited Chennai and another Vs. Srinivasa Transport, Visakhapatnam 2it was held thatwhen Defendant did not appear the evidence of Plaintiff can be looked into and adverse inference can be drawn. Therefore, applying the above ruling in Bharat Petroleum Corporation Limited Chennai case (supra) when defendant did not come to the witness box, his evidence cannot be considered. Applying the above ruling, plaintiff when discharged her burden and defendant failed to discharge their burden, the defendants are not entitled for any reliefs. Accordingly, the issues are answered.

ISSUE NO.13:-

To what relief?

33.In the light of discussions made under issues 1 to 12, plaintiff is entitled for Rs.8.30 lakhs and Rs.15 lakhs and rest of the claim is not maintainable. Defendants are not entitled for counter claim of damages and return of silver plate of 1 Kg.

2 2008 (6) ALT 199 15

34.In the result, the suit is decreed in part with proportionate costs for Rs.8.30 lakhs and Rs.15 lakhs, in total Rs.23,30,000/- with interest at 6% per annum from the date of suit till realisation. The rest of the claim of the plaintiff is hereby dismissed. Counter claim of defendants for Rs.11,90,020/- towards damages, value of 14 sovereigns gold and value of 1 Kg silver is hereby dismissed. Plaintiff is directed to pay court fee. Office is directed to prepare decree after payment of court fee.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the open court this the 25th day of July, 2016.

JUDGE

FAMILY COURT-CUM- IX ADDL.DISTRICT COURT,

RAJAMAHENDRAVARAM.

Appendix of Evidence

Witnesses examined on behalf of Plaintiff: Sl.No. Name of the Witness Examined as 1 Gude Bhavani Sujatha. P.W.1 2 Gude Surya Prabhavathi. P.W.2.

3 Immandi Rama Krishna Das. P.W.3.

Witnesses examined on behalf of Defendant:

Sl.No. Name of the Witness Examined as 1 Muggulla Veera Venkata Satya Eschewed (D.W.1) Apparao.

2 Muggulla Srinivasa Rao Eschewed (D.W.2)

Documents marked on behalf of Plaintiff:

Sl.No. Description of the document Exhibited as

1 Copy of legal notice issued by Ex.A.1. defendant No.1 dated 19.12.2008.

2 Office copy of reply legal notice Ex.A.2. issued by plaintiff to D.1 dated 16.1.2009.

3 Amended reply notice issued by Ex.A.3. plaintiff to 1st defendant.

4 Certified copy of counter foil of Ex.A.4. payment of tax.

16 5 Certified copy of computer narrated Ex.A.5. receipt for Rs.1,09,796/-.

6 Certified copy of tax Ex.A.6. acknowledgment letter for Rs.1,39,090/-.

7 Certified copy of tax paid counter Ex.A.7. foild for Rs.69,654/- dated 26.3.2012.

8 Certified copy of tax receipt dated Ex.A.8. 27.5.2012 for Rs.32,320/-.

9 Certified copy of tax receipt for Ex.A.9. Rs.30,000/- dated 26.9.2012.

10 Certified copy of registered sale Ex.A.10. deed dated 28.1.2008.

11 Certified copy of registered GPA Ex.A.11.

dated 21.2.2008.

12 Certified copy of registered sale Ex.A.12. deed dated 28.1.2008.

13 Certified copy of registered GPA Ex.A.13.

dated 18.3.2008.

14 Certified copy of registered GPA Ex.A.14.

dated 12.3.2008.

15 Certified copy of registered sale Ex.A.15. deed dated 22.5.2008.

16 Certified copy of registered sale Ex.A.16. deed dated 5.8.2008.

17 Certified copy of registered sale Ex.A.17. deed dated 22.5.2008.

18 Medical certificate dated Ex.A.18. (Exs.A.4 to 21.9.2015, issued by Sri Siva Sai A.18 are marked Nursing Home. subject to objection).

Documents marked on behalf of Defendant: Sl.No. Description of the document Exhibited as 1 Certified copy of deposition of Ex.B.1. I.Rama Krishna in CC No.53/2009 on the file of III Addl. Judicial

Magistrate of the First Class,

Rajahmundry.

JUDGE

FAMILY COURT-CUM-IX ADDL. DISTRICT COURT,

RAJAMAHENDRAVARAM

1

IN THE COURT OF JUDGE, FAMILY COURT-CUM-IX ADDL. DISTRICT

& SESSIONS JUDGE:: EAST GODAVARI AT RAJAHMUNDRY.

PRESENT:- Purushottam Kumar Chintalapudi

Judge,

Family Court-cum-Addl. District & Sessions Judge

Thursday the 9th day of June, 2016

ORIGINAL SUIT NO.149/2011

Between: Tadala Veera Venkata Satyanarayana. … Plaintiff.

A n d

Danduboyina Veera Venkata Satyanarayana Murthy. …. Defendant.

This suit coming on 26.4.2016 for final hearing in the presence of Sri M.R.Satya Sai, Advocate for plaintiff, Sri M.Siva Subba Rao, advocate for defendant, and the matter having stood over for consideration till this day, this court made the following:

J U D G M E N T

1.This suit is filed for recovery of an amount of Rs.41,48,333/-, of which Rs.35,00,000/- is the principal amount, with interest basing on the promissory notes.

2.The case of the plaintiff is that,

(a)Defendant borrowed an amount of Rs.10 lakhs from the plaintiff on 2.12.2010 agreeing to repay the same with interest at 24% per annum and executed demand promissory note in favour of the plaintiff after receiving the consideration on 2.12.2010. The defendant again borrowed an amount of Rs.10 lakhs from the plaintiff on 19.3.2011 agreeing to repay the same with interest at 24% per annum and executed demand promissory note in favour of the plaintiff on 19.3.2011. The defendant again borrowed an amount of Rs.15 lakhs from the plaintiff on 5.5.2011 agreeing to repay the same with interest at 24% per annum and executed a demand promissory note in favour of the plaintiff on 5.5.2011. Defendant has delivered all the pronotes to the plaintiff.

(b)Plaintiff pleads that he made several demands for repayment of the same. But, the defendant postponed the payment on one cause or the other. On confrontation by the plaintiff to the 2 defendant, the defendant issued a cheque bearing No.796630

dated 8.12.2011 for Rs.35 lakhs drawn on Andhra Bank towards

part satisfaction of the amount due to the plaintiff. Plaintiff presented the cheque with his banker for collection, the same was returned on 12.12.2011 with the endorsement of ‘insufficient funds’. Plaintiff got issued legal notice dated 13.12.2011. Defendant received the same, did not pay the amount. Hence, he filed the suit.

3.Defendant appeared and he filed written statement resisting the claim on the following grounds:

(a)He denied that he borrowed in total of Rs.35 lakhs from the plaintiff on three occasions on 2.12.2010, 19.3.2011 and 5.5.2011 as alleged by the plaintiff and he denied that he agreed to repay with interest at 24%. He pleaded that he did not borrow any amount from the plaintiff. He denied that he issued cheque for Rs.35 lakhs on 8.12.2011. As he did not borrow any amounts, the question of issuing any cheque does not arise.

(b)Defendant pleaded that the promissory notes as well as the cheque referred to and relied by the plaintiff are forged and fabricated documents. He took defence that unless defendant and his brother Danduboyina Srinivasa Rao sell away their meager land to the plaintiff, plaintiff proclaimed that he would ruin their family by implicating in civil and criminal cases. Defendant specifically pleaded that he is reserving his right to explain the circumstances in which the plaintiff could have gained custody of cheque book relating to this defendant’s bank account.

(c)He took a defence that plaintiff is avaricious and greedy person.

He is carrying out money lending business without any rules. He is in the habit of collecting large number of blank promissory notes, cheques etc., from his debtors, who borrows money from him and he charges interest not less than 60% per annum. He manipulates such blank cheques, promissory notes and blank signed white papers in his name to cover his claim. He used to blackmail the debtors.

(d)Plaintiff is also a seasoned litigant. He is prosecuting the case on the strength of false, fabricated and forged documents. The promissory notes are brought into existence with the help of his 3 close relatives B.Srinivasa Rao, attestor, who is the Viyyanka of plaintiff, T.Venkateswara Rao is plaintiff’s close relative and the scribe is an employee of the plaintiff.

With the said defence, defendant sought to dismiss the suit.

4.After completion of the pleadings, the following issues are settled:

1. Whether the suit pronote is true, valid and binding?

2. Whether plaintiff is entitled for suit amount?

3. To what relief?

5.The parties let in evidence. Plaintiff examined himself as P.W.1 and Mr. B.Srinivas as P.W.2. He marked Exs.A.1 to A.4. The defendant examined himself as D.W.1 and one Mr. K. Venkateswara Rao as D.W.2 and marked Ex.B.1.

6.After completion of evidence both counsels have advanced arguments. Learned counsel for plaintiff submitted that defendant though took a defence that promissory notes are forged and fabricated, he did not take any steps to prove it. By exhibiting promissory notes and examining one of the attestors, plaintiff has discharged his burden. The burden then shifts to defendant to disprove it. Defendant did not do so. Defendant admitted his signature on vakalat, written statement and other aspects, but willfully denied on Exs.A.1 to A.3. Defendant admitted that legal notice was received by him. In such a case, the defendant has to explain why he did not issue reply. Defendant simply taking defence of denials, do not support the case of the defendant. Section 118 of Negotiable Instruments Act (hereinafter referred to as ‘NI Act’) presumption arises when execution is proved. Therefore, plaintiff is entitled for the relief. Learned counsel for plaintiff relied on Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm and others 1 and submitted that simple denial of non-passing of consideration cannot be said that there is inconsistency in the evidence of plaintiff. Simple denial that promissory notes were not executed does not support the defendant unless he specifically pleads that no consideration was passed. In the present case through there is denial, but defendant failed to support his case. Hence, presumption arises in favour of the plaintiff and sought to decree the suit.

1 2008 (4) ALD 15 (SC) 4

7.The learned counsel for the defendant vehemently argued that the preponderance of probabilities are to be seen. P.W.2 is none other than the Viyyanka of plaintiff, he becomes the interested witness. The burden lies on the plaintiff until the evidentiary burden shifts. The borrowal amount of Rs.35 lakhs at three stages is highly improbable, for the reason it is out of one agricultural year. Plaintiff has no capacity to lend the amount. Defendant has no necessity to borrow the amounts. Plaintiff at no point of time has stated that he is in possession of liquid cash. In general the total investment per year for nursery would be Rs.8 lakhs. Whereas plaintiff’s claims that he gave RS.35 lakhs, which is not true. Plaintiff though pleaded that the cheques were dishonored, but he did not file those cheques. Expert opinion was not sent. It does not mean that he is accepting the execution of the promissory notes. When forgery defence is taken by the defendant, burden lies on the plaintiff to prove it. Hence he sought to dismiss the suit. Learned counsel relied on G.Vasu Vs. Syed Yaseen Sifuddin Quadri 2 and Krishna Janardhan Bhat Vs. Dattatraya G.Hegde 3 and submitted that the burden of proof in a suit on promissory note lies on the plaintiff. Defendant once adduced rebuttal evidence that no consideration passed under promissory note executed by him, burden of proof always lies with the plaintiff. Learned counsel relying on Krishna Janardhan Bhat case (supra) submitted that Section 138 of NI Act does not speak that there is presumption that there exists legally recoverable debt, it should be proved by the plaintiff, then only plaintiff is entitled for the relief.

8.Heard both sides. Perused the record. Gone through the evidence of both parties.

ISSUE NOS.1 AND 2:-

1. Whether the suit pronote is true, valid and binding?

2. Whether plaintiff is entitled for suit amount?

9.The case is, defendant has borrowed an amount of Rs.35 lakhs in total on three occasions according to plaintiff and executed promissory note. Since plaintiff came to the court with the pleading for recovery of amounts, the burden lies on the plaintiff to show that the transactions actually took place. The plaintiff to support his case examined himself as P.W.1. He filed his chief affidavit on the lines of his pleadings in the plaint. He specifically stated in the chief that Ex.A.1 was executed. On 2 1987 (1) ALT 1 3 (2008) 4 Supreme Court Cases 54.

5 the date of execution, Mr. B.Srinivas, T.Venkateswara Rao and K.V.Narasimha Rao were present, who are the two attestors and the scribe. While executing Ex.A.2 the same persons were present and acted as above. On the date of execution of Ex.A.3 the said three persons were present and acted as above. He also deposed that he issued a legal notice after dishonour of the cheque given by the defendant. The same was received by the defendant, but did not reply. He filed CC No.191/2012 on the file of VII Addl. Judicial Magistrate of the First Class for the dishonour of the cheque under Section 138 of NI Act. With the said deposition and relying on Exs.A.1 to A.3 promissory notes and Ex.A.4 legal notices, he sought to decree the suit.

10.Now, it is to be seen whether the evidence of P.W.1 was shattered under cross-examination by defendant to disprove that no execution of promissory notes was done. Much cross-examination was made to show that plaintiff has filed another suit against brother of defendant in OS No.11/2012 for an amount of Rs.25 lakhs to Rs.30 lakhs. The cross- examination is made with regard to issuance of legal notice where P.W.1 stated that he issued legal notice to the defendant prior to filing the present suit. He did not remember the date of issuance and when the acknowledgment was received including when the defendant given in reply or not.

11.The further cross-examination is made with regard to the business of plaintiff. P.W.1 deposed that,

He is doing nursery cultivation. He do not maintain account for his nursery cultivation and also do not have bank accounts for his nursery cultivation. He is income tax assessee. He has shown the loan amounts in his income tax returns, but the same do not reflect in his personal bank account. He do not remember when he showed the amounts in his tax returns.

P.W.1 deposed that he do not have document to show that he was having amounts respectively on execution of Ex.A.1 to Ex.A.3. At the time of execution defendant gave papers to him with regard to defendant’s property and those papers were given to his counsel. He do not remember whether he pleaded that defendant given any documents to him. He deposed that defendant and his brother are doing nursery business and real estate business individually. At the time of execution of Ex.A.1 to Ex.A.3, B.Srinivas, 6

T.Venkateswararao and D.V.V.Satyanarayana were present including K.V.Narasimha Rao. He admitted that B.Srinivas is his Viyyanka and his son also known to the defendant. He deposed that the scribe was aged 70 to 80 years old and recently he died. He denied to the suggestion that he does not have financial capacity to give loan, in collusion with attestors and scribe he prepared the documents. Suggestion was made that he is doing finance business on the name of Lakshmi finance and he is holding the board of finance name at his house. The rest of the things are suggestions. In further cross-examination he stated about his deposition in

OS No.11/2012 wherein he stated about his son Veera Venkata

Ramana and Dharmaraju are living separately and conducting their business. Rest of the things are suggestions of collusion, which were denied.

12.The entire cross-examination of P.W.1 which was extracted above do show at no point of time defendant has made a suggestion that defendant has not signed on Exs.A.1 to A.3. He did not pose a question that plaintiff forged the signatures of the defendant and falsely filed the suit. In the cross-examination the suggestions given to the plaintiff shows that plaintiff is doing finance business by name and style of Lakshmi Finance. P.W.1 deposition shows that he is doing nursery business. It was also tried to elicit that plaintiff filed another suit against the brother of defendant. No suggestion is placed that attestors and scribe were not present at the time of execution of Exs.A.1 to A.3.

13.On perusal of the evidence it does not show that plaintiff has no capacity to lend the amount. On the other hand, it is the defendant’s case that plaintiff is acting as a financier, his son also lent an amount. He also filed another suit against the brother of the defendant. The consolidate case of defendant in the cross-examination do show that much acquaintance of plaintiff with that of defendant. The evidence shows the financial capacity of the plaintiff to lend amount. In the absence of no specific suggestion that defendant has not signed the promissory notes or plaintiff forged the signatures, the defence of the defendant is doubtful that Ex.A.1 to A.3 were not executed.

14.At this stage it is relevant to go through the evidence of D.W.1, wherein he reiterated that plaintiff has no capacity to lend the amount, 7 he is a greedy person, charges high rate of interest, he obtains blank promissory notes and uses the same against the debtors. D.W.1 in the cross-examination stated that, He is doing nursery cultivation. He do not have any differences with the plaintiff. He deposed that plaintiff tried to purchase his property for Rs.10 lakhs, which he refused to sell. At the same time Ac.0-50 cents of land which was sought to be purchased as he has Ac.2-00 of land separately. The lands are not joint properties of himself and his brother. He and his brother did not accept for selling their joint land. There was no discussion of quantum of amount to be paid for purchase of joint lands. He deposed that he do not know the occupation of the plaintiff. Expenditure for nursery culture per acre is Rs.8 lakhs. He identified his signature on the warrant of attachment and written statement. But, he denied Ex.A.1 to A.3 signatures that of his signature. He identified signature in the chief affidavit. He admitted that in CC No.191/2012 he was convicted. He preferred appeal against it. He has no disputes with P.W.1 and P.W.2. He does not file any application for expert opinion. He deposed that he cannot tell how the cheques were gone to the plaintiff. He received a legal notice from the plaintiff after filing the suit. He has not sent any reply to the said legal notice.

15.The said deposition of D.W.1 do show that he is admitting that he has received the legal notice before filing the suit, but he did not give reply. He was found guilty for the offence under Section 138 of NI Act, however he preferred appeal against it. He admitted the signature on other document and did not admit on Ex.A.1 to A.3 signatures. He also stated that he has not taken steps for sending expert’s opinion. He is doing nursery cultivation, he has no disputes with the plaintiff. Plaintiff has filed suits against his brother and which were decreed. He preferred appeal against it. It shows that there is well acquaintance between plaintiff and defendant. No disputes with P.W.1 and P.W.2 in spite of litigations and pendency of cases do show, the allegation of fabrication and forgery becomes doubtful. To accept forgery and fabrication are to be specifically pleaded of mode of fabrication and forgery. Defendant in his written statement also specifically took a defence that unless defendant and his brother Danduboyna Srinivasa Rao sell away their meagre land to the plaintiff, plaintiff by proclaiming that he would ruin their family by implicating in civil and criminal cases. If the defendant took a defence by proclaiming plaintiff’s fraudulent intention to cause loss to them, then 8 burden lies on the defendant to establish it by way of independent witnesses showing intention of the plaintiff to ruin his family. Whereas D.W.1 and D.W.2 did not state so or adduced evidence. In cross- examination of P.W.1 and P.W.2 also no such suggestions were placed. Therefore, the pleadings of the defendant are not supported by evidence. He deposed that plaintiff approached him for purchase of land for Rs.10 lakhs, but he refused, but to that extent he did not let in convincing evidence. The rest of the things are suggestions.

16.At this stage it is relevant to go through the defence taken by defendant in his written statement. He stated that defendant has reserved his right to explain the circumstances in which plaintiff could have custody of the cheque relating to this defendant’s bank account with Andhra Bank, which was never really operated. The said statement do show that he is maintaining his account with Andhra Bank, Kadiyam. But, he says that he never operated. He also reserves to answer that cheques custody with the plaintiff. This also shows that the cheques bearing the signatures of defendant were in the custody of the plaintiff. In such a case, it becomes the duty of the defendant to explain under what circumstances he had given or how the cheques were in the custody of the plaintiff. It is relevant to state that he did not deny the signatures on the cheque. He took defence of forgery and fabrication, but did not speak. When the plea of forgery and fabrication was made and when the defendant takes specific plea that he would answer the circumstances and when he came to the witness box says that he cannot say, that negatives his defence. It is also the defence of the defendant that plaintiff is doing money lending business. If it is so, no doubt can arise with regard to the financial capacity of the plaintiff.

17.Plaintiff has examined the attestor Mr. B.Srinivas. Much cross- examination is made that he being Viyyanka of the plaintiff, he is supporting the case of plaintiff. But, the cross-examination of P.W.2 do show that he was witness in the other suit OS No.11/2012. He is aware of giving loan by the plaintiff to the brother of defendant. Much cross- examination is made with regard to the factual aspects of the case, which were answered by him. A question is posed with regard to the common attestors and scribe for Exs.A.1 to A.3, he answered as a co incidence. No suggestion is placed that the attestors and scribe were not present on the date of execution of Ex.A.1 to A.3. P.W.2 stated that amount was given to the defendant by the plaintiff on the said dates. Much cross- examination was made that the scribe is not in a position to move. At 9 the same time tried to show that scribe was an employee of the plaintiff. But, that does not affect the case of plaintiff when defendant did not deny the presence of attestors and defendant on the date of transactions.

18.Defendant examined Mr. K.Venkateswa Rao as D.W.2 to show that plaintiff is not a rich person and defendant has no necessity to borrow the amount and the plaintiff is a habitual litigant. In cross-examination he stated that, He is doing nursery business. In the chief he stated that plaintiff also doing finance business. There are no disputes between the plaintiff and the defendant. He is also one of the witness in OS No.11/2012 on behalf of defendant. He cannot tell the names of persons to whom plaintiff gave loans and charged huge interest. He is of the opinion that plaintiff is doing small finance business.

Before him he lent loans for small amounts to few persons.

19.The said evidence of D.W.2 thus show against the case of the defendant. Plaintiff is stated to doing finance business. Though D.W.2 stated that plaintiff lending small amounts, but plaintiff is stated to be doing money lending business. At the same time nursery cultivation. Whereas the defendant’s specific case is also that plaintiff is doing business apart from nursery. This shows plaintiff’s financial capacity which is established by the himself. D.W.2 is not an eye witness to the transactions of Exs.A.1 to A.3 or aware of the facts of the case. He was pressed only to show that plaintiff has no financial capacity to lend amount. The evidence do show against to it.

20.The plaintiff by examining himself and exhibiting the documents as well as examining attestor has established that the promotes were executed. His financial capacity in fact is being stated by the defendant. He is doing money lending business apart from nursery cultivation according to the defendant. Defendant did not answer why cheques were in the possession of the plaintiff. But, admitted fact is basing on the above cheques criminal complaint was field and the same was ended in conviction to defendant. No specific suggestions are made that attestor and scribe were not present on the date of transaction. No suggestions were taken for expert’s opinion and sent the signature. No enemity or disputes are stated between the plaintiff and defendant. In such a case when plaintiff exhibited the documents as well as evidence, burden shifts to defendant to show that he did not borrow the amount from the plaintiff and he has no necessity to borrow the amount. But, in the cross-examination of P.W.1 it was stated that the defendant apart from 10 doing nursery business also doing real estate. The defendant has not posed any such suggestions denying it. Therefore, his statement that he has no necessity to borrow amount also not supporting.

21.The ruling in Krishna Janardhan Bhat case (supra) relied by the learned counsel for defendant do not apply to the present facts of the case. For the reason in that case when defendant takes defence that no consideration was passed under promissory note executed by him, then burden shifts to the plaintiff. Whereas in the present case, defendant stressed upon the area of plaintiff not having capacity to lend the amount. But, not that no consideration is passed. P.W.1 was not posed of such suggestion.Whereas with regard to having capacity defendant himself poses question that plaintiff is having nursery as well as finance business and he has been lending loans to other persons, no enemity between them and he himself stated that plaintiff approached him for purchased of land worth Rs.,10 lakhs and in such a case financial capacity of the plaintiff cannot be doubted unless specific evidence let in by the defendant. No doubt cheque returns are not filed, but in the light of defendant’s case itself becomes nullity. In such a case under Section 118 of NI Act, presumption of execution of promissory notes do arise as defendant did not take steps to deny his signatures by expert opinion and also did not answer why the cheques were in the possession of the plaintiff. In Krishna Janardhan Bhat case (supra), the defendant states that Section 139 of NI Act does not give rise to presumption of legally recoverable debt. But, whereas in the present case execution of promissory notes, passing of consideration are shown. In such a case burden lies on the defendant to answer why he is not liable to pay the amount. But, defendant has not answered it. He also stated that he received the legal notice and did not answer it. The burden lies on him why he was silent after receiving notice. The property was also attached under Order 38 Rule 5 of C.P.C. Considering all the facts and circumstances of the case, with due respect to the rulings relied by the defendant, I am of the view are not applicable to the present facts of the case.

22.Execution of Ex.A.1 to Ex.A.3 and service of legal notice are established. No specific evidence that consideration was not passed let in by the defendant. On the other hand, financial capacity of the plaintiff is established by the defendant himself. In the absence of any enemity between the parties and parties appear to be known to each other, presumption of execution of promissory note does arises. In such a 11 case, it can be presumed that defendant received the amount and he failed to repay it. I am of the view that suit pronotes are true, valid and binding on the defendant and plaintiff is entitled for the suit amount. Accordingly the issues 1 and 2 are answered.

ISSUE NO.3:-

To what relief?

23.In the light of findings on issues 1 and 2, plaintiff is entitled for recovery of the suit amount.

24.In the result, the suit is decreed with costs for Rs.41,48,333/- (Rupees forty one lakhs forty eight thousand three hundred and thirty three only) with subsequent interest at 6% per annum from the date of suit till realization on the principal amount of Rs.35,00,000/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open court this the 9th day of June, 2016.

JUDGE

FAMILY COURT-CUM- IX ADDL. DISTRICT COURT,

RAJAHMUNDRY.

Appendix of Evidence

Witnesses examined on behalf of Plaintiff:

Sl.No. Name of the Witness Examined as 1 Tadala Veera Venkata Satyanarayana. P.W.1. 2 Battula Srinivas. P.W.2.

Witnesses examined on behalf of Defendant:

Sl.No. Name of the Witness Examined as 1 Danduboyina Veera Venkata D.W.1. Satyanarayana Murthy. 2 Kandula Venkateswara Rao. D.W.2.

Documents marked on behalf of Plaintiff:

Sl.No. Description of the document Exhibited as 1 Promissory note dated 2.12.2010 Ex.A.1. executed by the defendant in favour of plaintiff for Rs.10 lakhs. 2 Promissory note 19.3.2011 executed Ex.A.2. by the defendant for Rs.10 lakhs in favour of the plaintiff. 3 Promissory note dated 5.5.2011 Ex.A.3. executed by the defendant for Rs.15 lakhs in favour of the plaintiff. 4 Office copy of legal notice dated Ex.A.4. 13.12.2011 issued to the defendant.

12

Documents marked on behalf of Defendant:

Sl.No. Description of the document Exhibited as 1 Statement of plaintiff in his deposition Ex.B.1. in OS No.11/2012 on the X Addl.

District Judge, Rajahmundry.

JUDGE

FAMILY COURT-CUM-IX ADDL. DISTRICT COURT,

RAJAHMUNDRY.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL: CUM

(VIII ADDL. DISTRICT AND SESSIONS COURT) EAST GODAVARI AT

RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, Judge, Family Court-Cum-IX Addl. District & Sessions Court, Rajamahendravaram.

(Fac) VIII Addl. District and Sessions Court, Rajahmahendravaram.

Friday, the 07th day of July, 2017.

M.V.O.P.No.540/2012 Between: Dasari Swamy, S/o.(late) Rambabu, Hindu, aged about 19, Mason, resident of Ramachandra Rao Peta, Rajahmundry ….Petitioner

AND 1.Sathuluri Prasad, S/o.Vara Prasad, Hindu, aged about 42, Driver of lorry bearing No.AP5 W 4589, resident of D.No.4-115, Markendeyapuram, N.T.R. Colony, Anaparthi 2.S.Devi, W/o.Prasad, Hindu, aged about 35, owner of the lorry Bearing No.AP5 W 4589, resident of D.No.4-115, M.P.R. Colony, Anaparthi 3.Reliance General Insurance Co., Ltd, represented by its Claims Manager, Branch office, Rajahmundry ….Respondents

This petition coming up before me on 28.06.2017 for final hearing in the presence of Smt. K.Vara Lakshmi, advocate for the petitioner, R1 and R2 remained exparte and of Sri U.V.S.P. Avadani, advocate for the 3rd respondent, and the matter having stood over for consideration till this day, this court, delivered the following:

O R D E R

This is a claim petition filed by claim petitioner U/Sec.166 of

Motor Vehicles Act for compensation of Rs.2,50,000/- on account of injuries sustained by him in the motor vehicle accident occurred on 13.02.2010.

2.The brief averments mentioned in the claim petition are that; on 13.02.2010 at about 09.30 A.M. the petitioner was proceeding on the left side road margin slowly on his cycle to go to Tossipudi from

Anaparthi and when he reached near Vishnalayam Anaparthi the lorry bearing No.AP05 W 4589 driven by the first respondent driver came from Anaparthi side towards Polamuru side in a rash and negligent manner and dashed against the petitioner and thereby the petitioner 2 fell down and sustained grievous and simple injuries to his abdomen, left leg and all over the body and his cycle is completed damaged.

Immediately after the accident the petitioner was admitted in

Government Hospital, Anaparthi and from there he was shifted to

G.G.H., Kakinada for better treatment and he has spent Rs.25,000/-to purchase medicines. Due to the injuries sustained by the petitioner, he is suffering with severe pain. Thus the petitioner is unable to attend his work and thereby he lost his earnings as a Mason.

3.Respondents 1 and 2 remained exparte.

4.The 3rd respondent filed counter by denying all material allegations mentioned in the petition. This respondent denied mode and manner of the accident stated by the claim petitioner in the claim petition. This respondent submits that the alleged accident vehicle i.e., lorry was plying with violation of permit conditions and the second respondent has knowingly and willfully violated the terms and conditions of the policy and further the first respondent who allegedly have driven the lorry was not holding valid and effective driving licence to drive the lorry at the time of alleged accident. Further this respondent is not aware of the age, occupation and earnings of the claimant. The amount of compensation claimed by the claim petitioner is excessive and exorbitant. Therefore, the petition is liable to be dismissed against this respondent.

5.Basing on the above pleadings, the following issues are settled for trial:-

(i)Whether the accident was occurred due to rash and negligent driving of R1 while driving lorry bearing No.AP05 W 4589?

(ii)Whether the petitioner is entitled to any compensation amount?

3

(iii)To what relief?

6.On behalf of the petitioner, PWs.1 and 2 were examined and

Exs.A1 to A4 and Exs.X1 and X2 were marked. Third respondent reported no oral evidence and Ex.B1 policy was marked with consent.

7.As per the ordres passed on 27.06.2016 in I.A.301/2017 filed under Sec.170 of M.V. Act, the 3rd respondent is permitted to take all the defence that are available to R1 and R2.

8.Arguments of both sides heard.

ISSUE No.1 and 2:

9.This claim petition is filed by the claim petitioner U/Sec.166 of

M.V. Act for compensation on account of the injuries sustained by him.

As per pleadings and evidence adduced by both parties it is an undisputed fact that 1st Respondent is the driver, 2nd Respondent is the owner-insured and 3rd respondent is the insurer of the crime vehicle

Lorry bearing No.AP05 W 4589 (hereinafter called as crime vehicle).

10. To prove the case, the claim petitioner examined himself as PW.1.

He stated that on the date of the accident i.e., on 13.02.2010 while he along with his friend Sanyasirao was proceeding on cycle from

Anaparthi to Tossipudi on the left side of the road margin slowly and when they reached Vyshnalayam at Anaparthi village, the driver of the crime lorry drove it in a rash and negligent manner with high speed and dashed against their cycle and thereby he sustained grievous injuries on his abdomen, left leg and all over the body and his friend died. In support of his contention, he got marked attested copies of Ex.A1

F.I.R., Ex.A2 wound certificate, Ex.A3 charge sheet and Ex.A4 Photostat copy of the policy.

4

11.The third respondent contended that there is no rash and negligence on the part of the driver of the crime lorry and suggested the same to PW.1 in the cross examination. PW.1 denied the said suggestion.

12.On perusal of Ex.A1 F.I.R. shows that on the statement of PW.1,

Anaparrthi Police Station, registered a case in Cr.No.21/2010 against the driver of the crime vehicle under Sec.304-A and 337 I.P.C. PW.1 got mentioned in Ex.A1 the date, time and place of accident, mode and manner of accident, number of the crime vehicle, details of injuries sustained by him and death of his friend Sanyasirao. Ex.A2 wound certificate issued by the Government Hospital, Anaparthi, shows that immediately after the accident PW.1 was admitted in the Hospital with injuries to right knee, left knee and pelvic and left femoral region. The contents of Ex.A3 charge sheet would go to show that after completion of investigation, Inspector of Police, Mandapeta Circle filed charge sheet against the 1st respondent driver of the crime vehicle for the offence under Secs.304-A and 337 I.P.C. for his rash and negligent driving of the crime vehicle. PW.1 is shown as defacto complainant/injured in

Ex.A3 charge sheet.

13.Respondents 1 and 2 did not choose to contest the case by denying the case of the claim petitioner and remained exparte. Third respondent did not dispute the genuineness and veracity of Exs.A1 to

A3 and also did not dispute the factum of accident, involvement of the crime vehicle and sustaining of injuries by PW.1 in that accident. PW.1 categorically stated that while he along with friend was preceding from

Anaparthi to Tossipudi, the driver of the crime vehicle drove the crime vehicle in a rash and negligent manner with high speed and dashed 5 against their cycle and thereby he sustained injuries. The 3rd respondent disputed the rash and negligence on the part of the driver of the claim vehicle by way of suggestion in the cross examination of

PW.1. PW.1 denied the said suggestion. The driver of the crime vehicle is the proper person to deny the evidence of PW.1/injured/defacto complainant/eyewitness or to explain as to how the accident took place.

In the present case, the driver of the crime vehicle is shown as first respondent. But he did not choose to contest the case by disputing his rash and negligent driving of the crime vehicle and remained exparte.

Nothing is elicited from the cross examination of PW.1 to show that he in collusion with respondents 1 and 2 filed claim petition with false allegations. No rebuttal evidence is adduced to disbelieve the evidence of PW.1 and Exs.A1 to A3. Further Ex.A3 shows that after completion of investigation, first respondent was charge sheeted for rash and negligent driving of the crime vehicle. The evidence of PW.1 is duly corroborating with Ex.A1 F.I.R. which contains earliest information.

They clearly established that PW.1 sustained injuries in the motor vehicle accident occurred on 13.02.2010 due to rash and negligent driving of the first respondent driver of the crime vehicle. This issue is answered accordingly in favour of the claim petitioner.

Issue No.2:

14.With regard to this issue the evidence of PW.1 is that in the above said accident he sustained grievous injuries to his abdomen, left leg and all over the body. Immediately after the accident he was shifted to

Government Hospital, Anaparthi and thereafter he was shifted to

G.G.H., Kakinada for better treatment and he took treatment as inpatient for two months and he has spent Rs.25,000/- towards 6 medicines. Due to the injuries he is unable to attend his work and thereby he lost his earnings at Rs.300/- per day as a Mason.

15.The 3rd respondent disputed nature of injuries and amount spent for medicines by way of suggestion in the cross examination of PW.1.

To prove the injuries and treatment, the claim petitioner examined

Dr.Reddy Hemanthi, the then Assistant Professor of Surgery in

G.G.H.,Kakinada. As seen from the evidence of PW.2 on 13.02.2010

PW.1 who was referred from the Government Hospital, Anaparthi was admitted in the hospital with injuries. As per the wound certificate issued by Government Hospital, Anaparthi there are multiple abrasions with severe pain and tenderness over pelvis and femoral region.

Further she examined and found additional findings I..e, abdominal tenderness, hematuria, left lower limb movements restricted. PW.1 was diagnosised blunt trauma abdomen with hemoperitomeum with urinary bladder injury with pelvis fracture. Blood transfusion of laparotomy was done. Bladder injury was sutured by urologist. Thereafter PW.1 was shifted to Orthopedic Ward and later he was discharged from the hospital on 15.03.2010. PW.2 got marked Ex.X1 case sheet of PW.1 and

Ex.X2 X-rays(5) related to the injuries of PW.1. All the above said injuries i.e., laparotomy, bladder injury and pelvic fracture are grievous in nature and other injuries are simple in nature. According to the

Ex.X1 case sheet no orthopedic surgery was done. PW.2 denied the suggestion of the 3rd respondent that all the injuries are simple in nature. Except that suggestion nothing is elicited from the cross examination of PW.2 to disbelieve her evidence and Exs.X1, X2 and

Ex.A2. The evidence of PW.2 is supported by Ex.X1, X2 and Ex.A2.The evidence of PW.1 is supported by medical evidence of PW.2 and Ex.A2 wound certificate, Ex.X1 case sheet and Ex.X2 X-rays. The evidence of 7 PWs.1 and 2 coupled with Ex.A2 and Exs.X1 and X2 clearly established that PW.1 sustained three grievous injuries and multiple abrasions and took treatment as inpatient for 32 days. No medical bills or prescriptions are placed by PW.1 to show that he incurred Rs.25,000/- towards medicines as alleged.

16.In view of nature of injuries sustained by PW.1, an amount of

Rs.60,000/- towards pain and suffering, Rs.12,000/- towards loss of earnings during the period of treatment and healing of injuries,

Rs.6,000/- towards attendant charges, Rs.10,000/- towards extra- nourishment, Rs.2,000/- towards transportation, in total the claim petitioner is entitled for compensation of Rs.90,000/-.

17.On perusal of Ex.B1 insurance policy shows that the crime vehicle of the 2nd respondent is insured with 3rd respondent insurance company and it is in force by the date of accident. Therefore, 1st respondent being driver, 2nd respondent being owner/insured and 3rd respondent/ insurer are jointly and severally liable to pay compensation to the petitioner.

18.In the result, the petition is allowed in part with proportionate costs awarding compensation of Rs.90,000/-(Rupees ninety thousand only) to the petitioner.

ii)The Respondents 1 to 3 are jointly and severally liable to pay said compensation with interest at 7.5% per annum from the date of the petition i.e., 29.08.2012 till the date of realization and they are directed to deposit the compensation amount within one month from the date of this order, by deducting the interest for the default period from 10.03.2015 to 05.12.2016 as per orders passed in IA.952/2015

dated 05.12.2016.

8 iii) On such deposit, the petitioner is permitted to withdraw the entire compensation amount along with interest accrued thereon.

Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation by steno, corrected and pronounced by me in the open court this the 07 th day of July, 2017.

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS

TRIBUNAL CUM VIII ADDITIONAL

DISTRICT JUDGE, RAJAMAHENDRAVARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: Dasari Swamy PW.2: Dr.R.Hemanth

For Respondents: None.

DOCUMENTS MARKED

For Petitioner:

Ex.A1 attested copy of F.I.R. Ex.A2 attested copy of wound certificate Ex.A3 attested copy of charge sheet Ex.A4 photostat copy of the policy Ex.X1 case sheet Ex.X2 X-rays(5)

For Respondents:

Ex.B1 Insurance policy

CHAIRMAN.

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL: CUM

9

(VIII ADDL. DISTRICT AND SESSIONS COURT) EAST GODAVARI AT

RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, Judge, Family Court-Cum-IX Addl. District & Sessions Court, Rajamahendravaram.

(Fac) VIII Addl. District and Sessions Court, Rajahmahendravaram.

Friday, the 07th day of July, 2017.

M.V.O.P.No.540/2012 Between:

Dasari Swamy, S/o.(late) Rambabu, Hindu, aged about 19, Mason, resident of Ramachandra Rao Peta, Rajahmundry ….Petitioner

AND 1.Sathuluri Prasad, S/o.Vara Prasad, Hindu, aged about 42, Driver of lorry bearing No.AP5 W 4589, resident of D.No.4-115, Markendeyapuram, N.T.R. Colony, Anaparthi 2.S.Devi, W/o.Prasad, Hindu, aged about 35, owner of the lorry Bearing No.AP5 W 4589, resident of D.No.4-115, M.P.R. Colony, Anaparthi 3.Reliance General Insurance Co., Ltd, represented by its Claims Manager, Branch office, Rajahmundry ….Respondents

This petition is presented on 29.08.2012 and filed on 13.09.2012.

This is a claim petition filed by claim petitioner U/Sec.166 of Motor Vehicles Act for compensation of Rs.2,50,000/- on account of injuries sustained by him in the motor vehicle accident occurred on 13.02.2010.

Value of the petition is Rs.2,50,000/-, on which a court fee of Rs.1,860/- is paid as per Rule 475 of M.V. Rules.

Cause of action for the petition arose on 13.02.2010 at about 09.30 A.M., near Vishnalayam Pathavuru Anaparthi when the 1st respondent drove his lorry bearing No.AP5 W 4589 in a rash and negligent manner and dashed the petitioner from behind and caused injuries to the petitioner, within the jurisdiction of this Hon’ble Court.

This petition coming up before me on 28.06.2017 for final hearing in the presence of Smt. K.Vara Lakshmi, advocate for the petitioner, R1 and R2 remained exparte and of Sri U.V.S.P. Avadani, advocate for the 3rd respondent, and the matter having stood over for consideration till this day, this court, doth order and decree as follows: (1)that the petition be and is hereby allowed in part with proportionate costs awarding compensation of Rs.90,000/-(Rupees ninety thousand only) to the petitioner, (2)that the Respondents 1 to 3 are jointly and severally do pay the compensation as per clause(1) above along with interest at 7.5% per annum from the date of the petition i.e., 29.08.2012 till the date of realization within one month from the date of this order, (*by deducting the interest for the default period from 10.03.2015 to 05.12.2016 as per orders passed in IA.952/2015 dated 05.12.2016*). (*)Amended as per orders in IA.349/2017 dt. 19.07.2017(*) 10 (3)that on such deposit, the petitioner be and is hereby permitted to withdraw the entire compensation amount along with interest accrued thereon, (4)that advocate’s fee is fixed at Rs.1,000/-. (*)

Given under my hand and the seal of this court, this the 07 th day of July, 2017.

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS

TRIBUNAL CUM VIII ADDITIONAL

DISTRICT JUDGE,

RAJAHMAHENDRAVARAM.

No memo of costs is filed on either side.

CHAIRMAN.

11 (*)that the respondents do also pay the petitioner a sum of Rs.2,952/- towards proportionate costs.

(*)PARTICULARS OF COSTS

FOR PETITIONER:(*) FOR RESPONDENTS: Nil.

Stamp on vakalath: Rs. 2-00 Stamp on petition: Rs. 1,750-00 Stamp on process: Rs. 100-00 Advocate’s fee: Rs. 1,000-00 Type charge: Rs. 100-00 ------------------ Rs. 2,952-00 ------------------- (Costs added as per orders in I.A.391/2017 dated 08.08.2017)

CHAIRMAN.