IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE,
BHIMAVARAM
Present: - Sri K.Krishna Murthy, M.A.,M.L.,
III ADDITIONAL DISTRICT JUDGE,
Bhimavaram
this the 22 nd day of August, 2013
O.S.No.165/2006
Between:
Smt Jakkampudi Vidhyavathi, S/o Suryanarayana, Hindu, Female, aged 37 years, House wife, Balusumudi, Bhimavaram Mandal, W.G.Dt., … Plaintiff
And
1. Sri Samanthapudi Ranga Raju, S/o Suryanarayana Raju, Hindu, Male, aged about 67 years, Cultivation, Irrinki vari Veedhi, Rajulapeta, Bhimavaram – 2
2.Smt Samanthapudi Lalitha, W/o Ranga Raju, Hindu, female, aged about 60 years, Irrinki vari Veedhi, Rajulapeta, Bhimavaram – 2
3. Smt Gottumukkala Padmavathi, W/o Rama Raju, Hindu, female, aged about 39 years, House wife, Irrinki vari Veedhi, Rajulapeta, Bhimavaram – 2
4. Maddala Indira, W/o Nageswara Rao, aged 37 years, D.No.27- M-55-25/2, ASR Nagar, Bhimavaram , W.G.Dt., … Defendants
This suit is coming on 22.07.2013 for final hearing before me in the presence of Sri K.V.Ramesh, Advocate Bhimavaram, for the Plaintiff and of Sri R.Padmanabha Raju, Advocate Vissakoderu for D.1 to D.3 and of Sri P.Narasimham, Advocate for D.4 and upon hearing the arguments of both sides and perusing the appeal ground and material papers on record, 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 by the plaintiff against the defendants to pass preliminary decree of partition of the plaint schedule properties into three equal shares and to allot one such share to the plaintiff and put the plaintiff into her separate possession over the plaint schedule properties and for costs of the suit..
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2.The brief averments of the Plaint are as follows:
The plaintiff and the defendant No.3 are the daughters of the D.1 and D.2. The father of the 1st defendant had vast property. The said properties are ancestral properties of the family of the 1st defendant. The plaintiff and defendant are the members of the joint family. The D.1 being the manager used to maintain the all the affairs of the family with great love and affections towards his other family members. More particularly when the plaintiff and the 3rd defendant were minors he used to earn money and also acquired the assets for the welfare of the joint family. The plaintiff contended that the father of the 1st defendant by the time of his death having both moveable and immovable properties i.e. cash and vacant site. The D.1 did several business from out of the funds derived to him and he earned huge profits and the profits were also reinvested in the business and there by acquired the schedule properties on the name of his family members i.e. on the name of D.1 to D.3 by way of settlement deeds and sale deeds.
3. The plaintiff further stated that while the things stood thus the plaintiff got inter caste love marriage with her husband.
The said marriage is against the will of the defendants. In fact, the defendant wanted to perform the marriage of the plaintiff with rich people in their community. But the plaintiff from her childhood developed an ideal life. The plaintiff is having 1/3rd share 1st defendant is having 1/3rd share and 3rd defendant share in the joint properties mentioned in the plaint schedule items. The 1st defendant purchased 193.87 sq. yards of site and executed a gift deed in favour of 3rd defendant in the year 2010 and 3rd defendant 3 in turn sold away the said property in favour of 4th defendant on 18.09.2010. The plaintiff has got 1/3rd undivided share in the property. Hence the suit.
4. The Written statement filed by D.1 and D.4 in this suit and adopted the same by D.2 and D.3, the brief averments of the written statement filed by D.1 and D.4 are as follows:
The 1st and 2nd defendants are wife and husband and they got two daughters by name Padmavathi who got married to
Gottumukkala Venkata Ramaraju and Jakkampudi Vidyavathi.
The plaintiff is the youngest daughter of the D.1 and D.2 who had married Jakkampudi Suryanarayana at her own will after leaving the house of the defendant on her own somewhere in the year 1983-84. Thereafter the plaintiff had first time contacted this house only though notice dated 08.06.2005 for which the 1st defendant had given reply notice dt:06.07.2005 putting all the facts in front of her.
5. Samanthapudi Suryanarayana Raju had got Ac.0.12 cents of site and which he had passed on to his 8 sons. The said 8 sons had partitioned the said property amongst them and each one has got Ac.0.1 ½ cent of site to their respective share except the same, there is no joint property that is been inherited by the 1st defendant from said Suryanarayana Raju. The schedule property shown in the plaint do not belong to this 1st plaintiff originally particularly the Items 1 to 3 which were settled by his brothers as the 1st defendant do not have residential house. The Item No.4 which was shown exclusively belong to the 3rd defendant which he had purchased through a registered sale deed dt.26.09.2003 4 bearing Document No.4783/2003 and which is not to be partitioned. So also, the Item No.5 of the schedule belongs to the husband of 3rd defendant who purchased it through a registered sale deed dt;19.03.1997 bearing Document No.1508/97. Hence, the said item is not eligible for partition. So also the item No.6 is in the name of 2nd defendant which he purchased out of her
Sthridana through a registered sale deed dt.13.9.79 bearing
Document No.2333/79 . The items 1 and 3 respectively were settled in the name of the 1st defendant through registered settlement deeds dt:23.05.200 with Doc.No.2460/2000 and through settlement deed dt:07.08.2000 with Doc.No.3681/2000 respectively in the name of the 1st defendant through his brothers.
Therefore the items 1 to 6 cannot be claimed for partition by the plaintiff. Therefore this plaintiff does not have any right or claim ask for partition of the schedule properties. The averments which are not specifically traversed herein are not admitted by this defendant which are put to strict proof of thereof by the plaintiff herself. Therefore, the 1st defendant prays to dismiss the suit.
6. D.4 stated in his written statement that she purchased an extent of 193.87 sq. yards of sit in RS.No.357 of Vissakoderu item No.7 of plaint schedule for a valuable consideration of
Rs.2,00,000/- from one Gottumukkala Padmavathi, W/o Venkata
Rama Raju as per registered sale deed dated 18.09.2010 and ever since there from she is in absolute possession and enjoyment of the said property. This defendant contended that the plaintiff is nothing to do with the plaint schedule properties in particular in respect of the property purchased by her i.e. item no.7 of the plaint 5 schedule. This defendant stated that the plaintiff has no right in the plaint schedule properties and the suit filed by her is liable to be dismissed. There is no cause of action to the plaintiff to file the above suit. Therefore the defendant prays to dismiss the suit with costs.
7. Additional written statement filed by D.1 and the brief averments of the written statement are as follows:
The 1st defendant has purchased the extent of 193.87 sq.
yards of site in the year 1997 out of the hard earnings of the 1st defendant and the plaintiff has no right of claiming any share in the said property. Subsequently the D.1 had settled the said property by way of a gift to his elder daughter Gottumukkala
Padmavathi who is none other than the 3rd defendant in the suit in the year 2010. Ever since the 3rd defendant had been in possession and enjoyment of the said extent of property i.e. 193.87 sq. yards site till she sold it to the 4th defendant herein as she has been constrain to owing to her indebtedness to several other persons and the 1st defendant being the absolute owner of the said property as he acquired it on his own and has got every right to alienate the same. Therefore, except the 1st plaintiff none others have any right, claim, title and interest over the said property of 193.87 sq. yards and particularly the plaintiff cannot claim any right of partition as she does not have any rightful share in it. Therefore the defendant prays to consider the same and decide it in favour of the 1st defendant by dismissed the claim of the plaintiff for partition of her share in 193.87 sq. yards of site.
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8. Basing on the above pleadings, the following issues are framed:
1) Whether the plaintiff is entitled for partition by the plaint schedule properties.
2) Whether the properties purchased by the defendants from out of the funds of the joint family business.
3) To what relief?
Additional issues:
1. Whether the 4th defendant is bonafide purchaser of plaint schedule property for valuable consideration.
2. To what relief?
9. To prove the case of the plaintiff, P.Ws.1 to 4 were examined and Exs.A.1 to Ex.A.8 are got marked. D.Ws.1 to 3 were examined and no documents are marked on behalf of the defendant.
10. Original Issues 1 and 2:
Heard the arguments on both sides on versification of the entire material evidence available on record that plaintiff herself examined as PW.1 and she deposed that the 1st defendant is her father, the 2nd defendant is her mother and 3rd defendant is her sister. The plaint schedule properties are the ancestral properties of the 1st defendant. The plaintiff and defendants are the members of the joint family. The 1st defendant being the manager and he used to maintain all the affairs of the family with great and love and affection towards his family members. During the plaintiff minority and also 3rd defendant minority that the 1st defendant used to earn money and also acquired the assets for the welfare of the joint family. The 1st defendant got 50,000/- cash and vacant site from his father. The said cash and vacant site were fallen to the share of the 1st defendant in the partition. The 1st defendant did several business from out of the funds derived to him under partition and he earned use profits and the 7 profits are also re-invested in the business and they acquired the schedule properties in the name of his family members i.e. 2nd and 3rd defendant by executing settlement deeds in his favour. The plaintiff ever questioned the 1st defendant about the income and expenditure.
11. While things stand thus the plaintiff fell in love and got married against the will and wish of their family members. In fact the defendants wanted to perform the plaintiff marriage with rich people in their community.
But from the plaintiff childhood developed an idea married who is not belonging to their own community. The plaintiff demanded her portion of share from the jointly family property. Ultimately she issued legal notice on 08.06.2005 demanding for partition. The defendants gave falls reply notice.
12. Apart from the above evidence the plaintiff filed Ex.A.1 settlement deed dated 13.06.2000, Ex.A.2 certified copy of the settlement deed dated 13.06.2000, Ex.A.3 certified copy of the settlement deed dated 7.8.2000 which are in favour of the plaintiffs father. She also filed Ex.A.4 Certified copy of the sale deed executed in favour of the 3rd defendant dated 26.09.2003. Ex.A.5 certified copy of the sale deed dated 19.03.2007 Ex.A.6 is the Certified copy of the registered sale deed in favour of the mother of the plaintiff dated 13.9.1979,
Ex.A.7 is the Office copy of the legal notice dated 08.06.2005 and Ex.A.8 is the reply notice dated 6.7.2005 In support of the plaintiff evidence, that the plaintiff examined PWs.2 to 4 they are also supported the version of the plaintiff in all aspects .
13. The 1st defendant himself examined as DW.1 and he deposed that the plaintiff is his younger daughter who married one Jakkampudi Suryanarayana at her own Will after living the house of the defendant in the year 1983 and 1984 and ever since she has been living her own while she was living home she had taken away huge amount of cash and gold ornaments from his house .Thereafter the plaintiff 1st time contacted only through notice dated 8.6.2005 for which the 8 1st defendant had given reply on 6.7.2005 all the facts in spite of it the plaintiff filed the suit with speculative litigation.
14. Further DW.1 deposed that one Samanthapudi Suryanarayana Raju is his father who had got Ac.0.12 cents of site which he had partitioned into his 8 sons and each has got Ac.0.01 ½ cents site respectively. Except the same there is no joint property that inherited by the 1st defendant. He depends upon living on agricultural lease he has no source of income. The item no.4 exclusively belongs to the 3rd defendant who purchased through registered sale deed which is not be partitioned. Item No.5 of the schedule property belongs to the
Husband of the 3rd defendant. It is also not be partitioned. Item No.6 is in the name of the 2nd defendant which is a Sridhana Property. Item No.1 to 3 are settled through registered settlement deeds on his name. Therefore the plaintiff is not entitled to seek any partition over the plaint schedule property. In support of the plaintiff evidence two more witnesses are examin4ed as DW.2 and 3 on behalf of the defendant side.
15. DW.1 in his cross examination he deposed that “My father and his brothers partitioned their properties by way of Registered partition deed. My father got Ac.2.00 of land in the partition with his brothers. My father purchased some properties during his life time and myself and my brothers partitioned the said properties. My father purchased Ac.2.00 of land with the compensation given by the government for acquisition of land for water tank. My brothers executed registered partition deed in the year 1996. My elder brother viz.,
Samanthapudi Satyanarayana Raju took Ac.1.00 cents of land and my younger brother Samanthapudi Ramabhadraraju took Ac.1.00 cents of land and they paid money to our brothers. I purchased one tractor during the life time of my father”.
16. Further DW.1 in his cross examination deposed that “My wife executed document in favour of Padmavathi who is my eldest daughter giving the house site in Housing Board Colony, Bhimavaram i.e. Item No.4 of the plaint 9 schedule. Only 6 brothers executed settlement deeds in my favour giving their share to me”.
17. DW.2 in his cross examination deposed that “the father of DW.1 got Ac.2.00 cents of land in the partition between his brothers. In the year 1996
DW.1 and his brothers partitioned Ac.1.00 cents of land”.
18. PW.2 who is no other than the cousin brother of DW.1 who is the elder of Samanthapudi vari family. PW.3 and 4 who are brothers of the 1st defendant. As per admission of DW.1 the Samanthapudi Suryanarayana Raju who is no other than the father of the 1st defendant and grand father of the plaintiff. After death of the said Suryanarayana Raju the properties devolved his sons. Later the 1st defendant had his brothers partitioned their properties and enjoying the same with absolute rights. That Ex.A.1 to A.3 indicates the brothers of DW.1 executed Settlement deeds in favour of DW.1 . The brothers of DW.1 are having children. So there is no need at all to execute Settlement deeds in favour of DW.1. As per 2004 amendment Act under section 8 of Hindu
Succession Act, the children of PW.1 i.e. plaintiff and 3rd defendant have got equal shares over the plaint schedule property is the undivided joint Hindu
Family property. The plaintiff is the daughter of the 1st defendant and she is having right by birth in the plaint schedule properties under Hindu Succession
Act.
19. PWs.2 to 4 who are no other than the brothers of father of the plaintiff and they clearly admitted Ex.A.1 to A.3 properties are the joint family properties in order to avoid stamp duty that PWs.3 and 4 executed settlement deeds in favour of DW.1 or otherwise that PW.3 and 4 have no manner of right to execute settlement deed in favour of DW.1 in the said properties, as the properties are the joint family properties of DW.1 and his brothers. The PWs.3 and 4 admitted that orally partitioned their properties. Once oral partitioned that they have no written document that PW.3 and 4 gave document for the share of
DW.1 under the style of settlement deed.
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20. As per the evidence of DW.1 that PW.1 took away gold cash and silver ornaments and married with inter-caste person. DW.2 admitted that DW.1 having no avocation and he is having two daughters and he came to know that
PW.1 eloped with some other person. After she went away that DW.1 did not give any police report. It shows that PW.1 did not take away some cash and gold along with her when she left the house. Even according to the version of
DW.2 the plaint schedule property are the ancestral properties of plaintiff. The admissions of DW.1 to 3 shows that the properties of the 1st defendant partioned orally from his brothers under Indian Succession Act. But DW.1 did not file documentary evidence to show the plaint schedule properties are the self acquired properties. The 1st defendant did not place any material evidence to that effect.
21. The 2nd defendant is the wife of the 1st defendant, the 3rd defendant is the sister of the plaintiff and daughter of defendant 1 and 2. The
Item No.6 of the Plaint Schedule property indicates the 2nd defendant is a “Gruhini”. It shows that she has been residing with her husband prior to her marriage and she has no properties and she did not file any documentary evidence that she purchased the properties on 13.09.1979. While living with her husband. It shows that the 1st defendant purchased item No.6 of the schedule property in the name of his wife. Once any property purchased under the name of joint family properties, the said properties are covered ancestral property. So item No.6 of the plaint schedule property is the ancestral property of the plaintiff. Moreover the 2nd and 3rd defendant are not examined the witnesses. If they are come to the court and give evidence that truth will come out but they are not examined. So they are the material witnesses on behalf of the 1st defendant. The 1st defendant not examined any attestors of the documents got filed by the plaintiff. So, the defendants failed to prove their case. There is no iota of evidence that 2nd defendant is having income source. Therefore the plaintiff the 1st defendant and 3rd defendant are the co-parceners of the plaint 11 schedule properties and they got equal shares over the property. Therefore the plaintiff is entitled 1/3rd share and separate possession of her share of property with metes and bounds from the Item Nos 1 to 6. Accordingly these issues are answered in favour of the plaintiff against the defendant.
22. Additional Issue No.1:
Heard the arguments on verification that 4th defendant who is purchaser of Item No.7 of the property to an extent 194.8 sq. yards of site situated in the village of Vissakoderu, Palakoderu Mandal. That he purchased the said site for valuable consideration Rs.2,00,000/- under registered sale deed on 18.09.2007 from Gottumukkala Padmavathi i.e. 3rd defendant with Doc.No.3545/2010 and delivered possession to the said property to the 4th defendant. The 4th defendant himself examined as DW.3 and he re-iterated the entire above facts in his evidence in toto.
23. The learned counsel for the plaintiff argued that the 4th defendant who is examined as DW.3 purchased the Item No.7 of Schedule Property after filing of the suit from the 3rd defendant. Therefore section 54 of T.P. Act
Attracts once pending litigation property purchased the Sec. 54 of T.P. Act attracts and those transactions are not binding upon the plaintiff. The 3rd defendant has no right to execute any sale deed in favour of the 3rd parties.
24. On gone through the entire evidence DW.3 who is purchaser of the item No.7 of the plaint schedule property admitted in his cross that either 1st defendant or 3rd defendant did not inform the particulars of the case litigation to him. In order to show that he is a bonafide purchaser under section 54 of
T.P.Act. The 4th defendant has no manner of right to purchase item No.7 of the plaint schedule property from the 3rd defendant once the suit is pending.
Therefore the said transaction is not valid transaction under section 52 of T.P.
Act and it is not binding upon the plaintiff. The 2nd and 3rd defendants not examined and they did not come to witness box to give evidence. 3rd defendant would gave evidence that truth will come out. Whether 3rd defendant has got 12 right over item No.7 of the schedule property, because it is the ancestral property of the 1st defendant and it is not a self acquired property of the 1st defendant. The 4th defendant did not examined the attestors of the document in order to show that she is the bonafide purchaser fro item no.7 of the schedule property. There is no iota of evidence that 3rd defendant was having independent source of income to purchase the same and sold away to 4th defendant for valid consideration. Therefore once the suit is pending over the schedule properties in between the parties the 1st defendant or 3rd defendant have no right to alienate or sell the same to the 3rd parties and it attracts under section 52 of T.P. Act because the item No.7 is a ancestral property of the plaintiff. Therefore the sale deed dated 18.09.2010 purchased by DW.3 is not a valid document and it is not binding upon the plaintiff. In view of the above all reasons this issue is answered in favour of the plaintiff against the defendants.
25. Issue No.3 To what relief?
In view of the findings of the Original Issues 1 and 2 and additional issue
No.1 the suit is preliminarily decreed without costs for partition of the plaint schedule properties i.e. item No.1 to 7 into 3 equal shares and to allot one third share to the plaintiff and put the same to the plaintiff into her separate possession over the plaint schedule properties.
26. In the result, the suit is preliminarily decreed without costs for partition of the plaint schedule properties i.e. item No.1 to 7 into 3 equal shares and to allot one third share to the plaintiff and put the same to the plaintiff into her separate possession over the plaint schedule properties.
Dictated to the Personal Assistant, typed on computer, corrected and
pronounced by me in open court, this the 22nd day of August, 2013.
III Addl. Dist. & Session Judge, Bhimavaram 13
APPENDENCE OF EVIDENCE
For Plaintiff:
PW.1 : Jakkampudi Vidyavathi
PW.2 : Samanthapudi Narasimha Raju
PW.3 : Samanthapudi Venkata Raju
PW.4 : Samanthapudi Ramabhadra RAju
For Defendant:
DW.1: Samanthapudi Ranga Raju
DW.2: Gadiraju Venkata Lakshmipathi Raju
DW.3: Maddala Indira
EXHIBITS MARKED
FOR PLAINTIFFS
Ex.A.1-Dt.13.06.2000 :Settlement deed Ex.A.2-Dt.13.06.2000 :Certified copy of Settlement deed Ex.A.3-Dt.07.08.2000 :Certified copy of Settlement deed Ex.A.4-Dt.26.09.2003 : Certified copy of Registered sale deed Ex.A.5-Dt.19.03.2007 : Certified copy of Registered sale deed Ex.A.6-Dt.13.09.1979 : Certified copy of Registered sale deed Ex.A.7-Dt.08.06.2005 :Office copy of the Registered notice Ex.A.8-Dt. 06.07.2005 :Original reply notice
FOR DEFENDANTS: : -Nil-
III Additional District Judge,
Bhimavaram.