Smt K.Radha Devi

1

~ THE COURT OF THE IV-ADDL. DISTRICT AND SESSIONS

t

JUDGE, (FTC) AT MAHABUBNAGAR

Thursday, this the 3ot11 day of June, 2016

Present:- Smt. K. Radha Devi Judge1 Family Court-Cum -VlJI Adell. District Judge,

Mahabubnaga r, FAC, lV-Addl. District and Sessions Judge, ( FTC), Mahabubnagar.

MVOP.No.101 of 2014

Between:-

1. Bl,agyamma, W/ o. Late. Dasari Konda Swamy, aged 32 years, 0cc: Household,

2. Purnamma @ Pujitha, D/o. Late. Dasari Konda Swamy, aged 7 years, 0cc: Nil, Minor.

3. Buchamma, W/o. D. Chittenna, aged 62 years, 0cc: Nil

The petitioner No.2 is minor and uncler the guardianship of her natural mother i.e., Petitioner No. l. All are R/ o: Raigadda village, Wanaparthy proper, now at present Bandameedipally village, Mahabubnagar mandal and district.

... Petitioners.

AND

1. Bangaru Naganna, S/o. Balaswamy, aged major, 0cc: Owner of the TATA ACE bearing No.AP22TA-1823, R/o: Sheripally village, Pebbair mandal, Mahabubnagar district.

2. ICICI Lombord General Insurance Company Limited, Represented by its Divisional Manager, 3rd Floor, GBR Towers, Chaithanyapur,

Dilsukhnagar, Hyderabad. (Certificate cum Policy No.3003/TM-00028986/00/000 valid from 24.01.2013 to 23 .01.2014) .. . Respondents.

/; r.se s; ;;;:. u b:- Petition under Section 166 of Motor Vehicles Act 1988,

,.,,.,~ .... for the

/ t- 0 , ,rac k c? ~\ -, claiming compensation of Rs.10,00,000/-

of d_edceatsed Dasari l<onda Swamy in a motor C: • ! ~ ,«·• t. ,, 71 ~C, '-',.,, ':. \ dehath ~ ~ t 1. ve ,c e ace, en . . : ~, \4 1 * * *

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Go al Yadav, Advocate for the Petit\~_ 2

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. ro .c u T ...., <:t A~vocate for Respondent No.2, Respa~~ § Q presence of Sn V. E ...., ~ the proceedings, and upon perusing ~~~q ~ o ro Sri Palla Pulla Redd~, r-- E U ~ O d having stood over for consideration, th~ No.1 set ex-parted , material on recor , an court delivered the following:-

ORDER

· f'iled by the petitioners U/Sec.166 of MV This petition Is 1. Act claiming compensation of Rs.10,00,000/- for the death of Dasari

Kanda Swamy. The brief facts of the case are that, the petitioners are the 2. wife, daughter and mother of the deceased Dasari Konda Swamy• on'

12.12.2013 at about 19.00 hours an accident took place in the limits of Tambalapur village Pebbair to Srirangapoor road due to rash and vehicle bearing No.AP22TA 1823 negligent driving of the TATA Ace by its driver who is under the employment of respondent No. l. On 25.01.2013 in the morning the deceased went to Srirangapur village morning on the way to Thambala pur village at about 19.00 hours, at that time one TATA Ace vehicle bearing No.AP22TA 1823 came in opposite direction in high speed in rash and negligent manner, dashed against the motor cycle bearing No.AP22AL-0164 of the deceased. As a result, the deceased sustained injuries, shifted to Government Area Hospital, Wanaparthy through 108 Ambulanace and on the way he died . The police Pebbair registered a case in Cr.No.211/2013 U/Sec.304-A of IPC. At the time of accident the deceased was quite hale and healthy aged 38 years and is working as Gumasta in Gold Shop at Wa naparthy. He was getting salary of Rs. 7,000/- per month and he was contributing the same for the maintenance of his family. Due to the accidental death of the deceased the petitioners were subjected to mental agony and financial crisis, they lost love and affection of the deceased . The petitioners are sole legal heirs of the deceased. The respondent No. l _ .. being the owner of the crime vehicle and respondent No.2 being

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of the said vehicle jointly and severally liable to pay the s,-6~\T. s,~~ r ct C,t '> _, . ' • '1> \ co~p,e ·'sation of Rs .10,00,000/ - to the petitioners. r ~

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3 The respondent No. l received with notice but failed to file counter and he was set ex-parte to the proceedings.

The respondent No.2 (ICICI Lombard General Insurance 4. Company) has filed counter not admitting the petition averments that the accident took place due to negligent driving of the vehicle TATA Ace bearing No.AP22TA 1823. The respondent No.2 also did not admit that the petitioners are the sole legal heirs and dependents ol the deceased. The respondent No.2 further submitted that the respondent No.1 has knowledge about the driver of the auto did not possess any valid or effective driving licence to drive such vehicle allowed him to drive in violation of the terms and condition of the policy and therefore the company is the liable. The company did not admit the respondent No. l is the registered owner of the vehicle and got insurable interest. The respondent No.2 further submitted that the alleged accident took place due to the entire negligence of the deceased and compensation if any be awarded to be restricted basing on the contributory negligence. Basing on the above pleadings the following issues were 5. settled for tria I: -

1. Whether the deceased died in motor accident, and negligent driving of crime due to rash vehicle, TATA ACE bearing No.AP22TA-1823?

petitioners are entitled for prayed? If so, against as

In support the petitioners case PW-1 and PW-2 are 6. I I examined. Ex-Al to Ex-A6 are m,ffked as indicated in the appendix of evidence. In support of the respondents RW-1 and RW-2 are 7. examined. Ex-Bl to Ex-B3 are marked as indicated in the appendix of evidence.

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QJ C ..c N QJ r-i :t: <t: x .:t= N +J 4 ru V) Q_ 0 V) >-<t: >-QJ LU ..0 QJ C z 0 ..c QJ -:u +J s: el for the petitioners has sub1ty D +J QJ The learned couns u >-~ ''I:.\..._, Ol 0 QJ

8. >-0 C vehicle was driven by thli:, :,., L. EQJ a.. "i:: QJ QJ ·dent day the offending > ~t; '", E E (t)

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(t) ..0 D employed by the respondent o. ~. d a-ed resulting the death of thli: hit the motor cycle of the ece ::, ' . N 2 being insurer of the offending deceased and the respondent o. _ . The learned counsel further vehicle liable to pay the compensation· . . submitted that the petitioners are third party claimants. The driving licence is valid on the date of accident. The objection of th e respondent No .2 the driver who possessed transport licence not tenable. He further submitted, the deceased at the time of death is aged 40 years, working as goldsmith, earning Rs. 7 ,000/- per month is entitled for compensation as prayed for.

9. Issue No.1:-

The petitioners are the wife, daughter and mother of the deceased . PW-1 is the wife of the deceased, she narrated the facts that her husband died on 12.12.2013 while he was going on his motor cycle bearing No.AP22AL-C 164 in the limits of Thambalapur village due to hitting by the offe ndi ng vehicle bearing No .AP22TA- 1823 came in opposite direction in high speed in rashly and negligent manner. Through PW-1, Ex-Al to Ex-A6 are the documents marked to prove the accident and it was occurred due to rash and negligent driving of the offending vehicle bearing No.AP22TA-1823 . PW-1 was cross-examined . During cross-exa mination, it was elicited that PW-1 is not an eye witness to the occurrence. PW-2 was examined to prove that he has witnessed the accident and the case was oc·curred due to rash and negligent driving of the offending vehicle · bearing No.AP22TA-1823 and hitting to the deceased . PW-2 on the said day transporting his paddy bags to rice m ill by engaging the offending vehicle and he was also travelling in the offending vehicle deposed that the accident occurred due tu rash and negligent driving of the ~~~-- ( __ of the offending vehicle bearing No .AP22TA-1823 . PW-2 stated 'ls I>-~ , Tr " 9 4- " \ · · h f h . h ' ; .::.'-- ~.,,~ In qj~ ort of the petItIoners case. T ere ore e 1s t e oest eye - · itn"~~o the occurrence. His evi dence is convincing and believable. : "ilr ( ~

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I ., Ex-Al shows the com plaint was lodged by PW-1 immediately after the occurrence of the accident. PW-2 is also cited as eye witness in the Ex-A2 charge sheet fil ed against the driver who employed by the res pondent No. l pertaining to offending vehicle bea ri ng No.AP22TA-1823. The rash and negligent driving of the driver of the offending vehicle bearing No.AP22TA-1823 also alleged in Ex-A2. Ex-A3 disclosed the death of the deceased due to multiple organ damage and brain hemorrhage resulting in cardio respiratory failure of the deceased. Ex-A4 inquest report also diclosed that in the road accident the deceased died due to injurires and further the crime vehicle dashed the deceased due to rash and negligent driving of the driver. Therefore the above evidence clinchingly proved that the crime vehicle TATA Ace bearing No.AP22TA-1823 driven by its driver in a rash and negligent manner dashed to motor cycle of the deceased at the scene of offence thereby causing the death of the deceased. Therefore this issue is answered in favour of the ~~petitioner . .,,,. ~., ~Sl ol') ~ ,.'· • ll ~ ,, , . >-." •• 3~ C ._ . -.... ~ ',. \'; ot.t fa . \_ ~ ~ , , Issue No.2:- : I '._ • 1 ) \' ~ II- 1 · 1 /: RW-1 is the legal executive of the insurance company. . , , - _ ___ ~.Acl ~rding to his evidence, at the time of accident the driver Mekala - ' . / .,J / -. -- Venkataiah employed by the respondent No. l did not possess valid and effective driving licence to a goods carriage transport vehicle. He possessed driving licence for T & T LMV only which was expired on 12.0 5.2006 which was not renewed. Therefore the company is not liable to pay the compensation. He was subjected to cross- examination it was not elicited that on the date of accident policy was in force and the petitioners are third parties. Ex-Bl is the copy of insurance policy inrespect of crime vehicle bearing No.AP22TA- 1823. It discloses that the insurance was inforce as on the date of accident. Ex- B2 is copy of driving licence extract disclosed that the validity of transport licence was up to 06.02.2017.

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12. . f ccident the driver RW-2 the driver was ha-v, dmitted by ' . . "'\ date o a h. cle driving licence. It 1s a\s~ Ex-B3. But as a as per . ht motor ve I t exceed to 7500 Kgs goods . for non transport 119 licence . llotted no ·tt d by RW-2 the weight a swer the technicalities . W- 2 unable to an adn11 e nder light motor vel11cle. R . f RW-2 it is made clear u o from the evidence o of motor vehicle rules , 5 ·dent possessed non . on the date of the acc1 the driver Venkata,ah, as . e vehicle was not a h. I licence and the cnm transport light motor ve ,c e . h. I possessed driving d . f the crime ve ice river O f transport vehicle . The . . I t· f any rules of licence o licence as in Ex-B2. The breach of v,o a ion o technicalities if any found not disentitled the claim of the petitioners, who appears to be third parties. The respondent No.2 failed to establish that the lack of proper and effective driving licence was fundamental cause for the accident . The respondent No.2 company could not established that the 1·espondent No. l knowingly entrusted the vehicle to the driver, who had no valid driving licence i.e, not having transport driving licence. Therefore the petitioners are certainly entitled for compensation against the respondents as they are third parties to the claim. The respondent No.2 insurance company cannot repudiate its liability against the petitioners. They can proceed against the insured (the respondent No.1) for recovery of amount for violation of the conditions of the insurance policy and for not possessing valid driving licence. This Court relied on the decision in National Insurance Company Limited, Vs.K. Dwali and Others 1 in considering the case of petitioners.

Therefore the respondent I\Jo.2 is primarily liable to pay the compensation and it can recover the same from the owner of the .. ~t ~icle (the respondent No .1). Accordingly this issue is answered in · 5essl p ....._,, / .,:.;. o' ·~,ackf ~«ot: ~ Of petitioners and against to the respondents . I '< -. o c\ ~ / / <~ . ~ ~- ~ : . ~ {.;,_' ' ,· .. ( 4:1<:\ V'" ~ I ' ,, 1'1. , ( '•r,:'\f 7il' 1r, . \, ., •, . . -., I ' I ~·'·~ . / ' . . ~ , .. \ 1;"',.,.,.,. _,l.- ~2 15 (3) T.A.C. 799 (A.P.) ... , ·'Y-4 riu B '-1 ~ ·· · ·';- t. '';':...:~,_;.✓ 7

Issue No.3:-

As per the evidence of PW-1 the deceased is aged about 38 years and is working at the time of accident as gumasta in gold shop, getting income of Rs. 7,000/ - per month . As per Ex-A2 charge sheet also the age of the deceased was 38 years and was working in gold shop. The postmortem examination report Ex-A3 also shows the age of the deceased as 38 years. The age of the petitioner No.1 also is 30 years. As per the petitioners case the deceased was aged about 38 years earning Rs. 7,000/- per month working as Gumasta in gold shop and also contributing the same to his family members i.e., petitioners 1 to 3. There is no documentary evidence filed to show the income of the deceased was earning Rs. 7,000/- as a Gumasta in gold shop. No evidence either oral or documentary proof produced to show that the deceased was worki ny as Gumasta in gold shop as on the date of accident. The only oral evidence available i.e., of PW-1 who is the wife of the deceased without any corroboration. Therefore the petitioner has failed to prove t:he income of the deceased as Rs . 7,000/- per month and so also t!:e age of the deceased was 38 years as on the date of accident. Taking into consideration that the deceased being an earning member may earn not less than of Rs.4,500/- per month at the age of 30-40 years. His income will be assessed at Rs.4,500/- per month . He is having wife, daughter and mother ( petitioners 1 to 3). Therefore deduction of 1/3th of income ~ personal expenses of the deceased is just and reasonable. ::-~ . , \ ~ca C0 1.1 ,, ,, \. <.-'-,'\ \ \ ~\ The age of the deceased will be taken into consideration ~ ::-·~.14.

--,,J~· in det~ een the age group of 36-40 and applying the multiplier of

. ' '· , . ,....."' 15 -i{-i'~·stified. [Followed a case law reported in SARALA VERMA ; \.'- ._ i_!,_ :_ _'t~ 6f:- T)"AND OTHERS Versus DELHI TRANSPORT CORPORATION AND ·""-- ..:-.--; 1··~ / . . , __ .... ____ __ ...... ANOTHER (2009(6) sec 121)].

If the ag e of the deceased was in between 36 to 40 years 15. is taken into consideration the actual loss of earnings, deducting of rd of his income towards personal expenses of the deceased is just 1/3

C Q) Q) a. Q) L.: C C QJ 0 :c 0 :c E 8 C :c :c - u 0 C /tl Q) QJ t E .s Q_ Q_ f the deceased is ass~ .s Q f o, V) the income O (tl

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and proper. Thus rd ""~"' ...., C Q) deducting 1/3 (tl (tl u 0 u -0 th and after -(lJ ' -.., Rs.4 500/ - per mon R 5 40 000/- [(4,500/3==1sC}1J1~ '"' .

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, . income will be s. , , , ('\I '--' '--' personal expenses his 40 000/-]. Therefore the ooox12x 1s)=Rs. 5, ' 4,soo- 1,soo=3,000 ; 3, towards loss of earnings of . I d for Rs.5 40 ,000/- petitioners are ent,t e ' R 50 000/- towards . . No 1 is entitled for s. ' the deceased. The petitioner · 25 000/- towards loss . . re entitled for Rs. , consortium, the petItIoners a

In

towards funeral expenses. of love and affection and Rs. 25 ,OOO -/ . h ount of Rs.6,40,000/- as total the petitioners are entitled for t e am compensation which is just and reasonable.

16. The claim petitioners are entitled to claim interest of sum 9% per annum from the date of filing claim petition till the date of deposit of amount into Court as well proportionate costs.

17. In the result, Rs.6,40 ,000/- (Rupees six lakhs and forty thousands only) is awarded to the petitioners towards compensation with interest @ 9% per annum from the date of filing of petition till the date of deposit of amount into Court with proportionate costs against the respondents No.1 and 2. The respondents No. l and 2 are liable to pay the compensation jo,ntly and severally.

i. Respondents No. l and 2 do pay jointly and severally compensation of Rs.6,40,000/- together with interest @ 9% per annum on said compensation amount from the date of filing of claim petition till date of deposit of amount into Court as well as proportionate costs.

ii. Advocate fee is fixed at Rs .2,000/-. Rest of the petitioners claim is dismissed .

iii. Respondent No.2 is directed to deposit compensation amount with interest as well as costs wi thin n period of 30 days from the date of compensation awarded and furthe1· directed to recover the same from the respondent No.1

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_/ ~"°/ • "t o'.i~~ deposit of compensation amount interest and proportionate

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1-..,. ~ 9 ,a . 0 · ,... ~ > the compensation is portioned among the petitioners in the

(l) :::r ~ - - ' · following manner.

( 1) Claim Petitioner No.1 (wife of the deceased) Rs .4,00,000/- (2) Claim Petitioner No. 2 (minor daughter of the Rs.2,00,000/- deceased) (J) Petitioner No .3 (mother of the deceased) Rs.40,000/- interest and claim with entitled to petitioners are v. Each proportionate costs on their share compensation amount.

vi. On deposit of compensation amount, the petitioner No.1 is perm itted to withdraw Rs.3,00,000/- initially from her share with interest and proportionate costs and Rs.1,00,000/- shall be kept in FDR for one year in any Nationalized Bank. Petitioner No.3 is permitted to withdraw entire amount of her share of Rs.40,000/- with interest and proportionate costs. The compensation share amount of petitioner No.2 i.e., minor shall be kept in fixed deposit in any Nationalized Bank till she attained majority.

vii. In this case the petitioner has obtained certificate from the

Mahabubnagar vide Authority, Services District Legal Pro.Dis.No.1685/DLSA/2014, dt.11.03.2014 exempting them rom the payment of Court fee of Rs.9,360/-[G.O.Ms.Nos.73 ~::a-;--~ 3 co dated .'1/ t: }>" ~ D) Dept., & J-Home Courts. Law ( LA . ·,,· .., , ~c.~ Co1.1,/' ' -a ~d 86

... 0J~ \~. ·. 6.2007 and 27.07 .2007 respectively] . They have not '

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' ~~ ~i, ! the Court fee and therefore the said Court fee has to be '··\- .\ '-. .. ~-~ -;:;:;}\~:.~~~ . .-covered from the compensation amount that may be .,1 -.:J I ·, ... ' ·-~.:::-:::;:::.- - · deposited by the Respondent No.2 . Hence ordered to recover the sa id amount from the amount which may be deposited.

Dictated to Grade-III Steno9rapher1 transcribed by her, corrected and

pronounced by me in the open Court, this the 30u, day of June, 2016.

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cum -VIII.ADJ Court, Mahabubnagar, FAC, IV.ADJ (FTC), Mahabubnagar.

10 • U,l :c

. OF EVIDENCE.

~sos~~ ,~~

EXAMINED FOR ,.-1

W ITN E

RESPONDENT:

RW-1: N. Sreeramulu PETITI ON ER: PW-1 : smt. D. Bhagyamma RW-2 : K. Bala Swamy

PW- 2: Sri. S. Bhasker

EXHIBITS Jv; AR KED FOR

PETITIONER:

Ex-Al : CC of First information repo1·( Ex-A2 : CC of charge sheet Ex-A3: CC of postmortem examinat ion report Ex-A4: CC of inquest report Ex-AS: CC of insurance policy Ex-A6 : Copy of crime vehicle drivei''s DL

RESPONDENT S:

Ex-Bl: Copy of insurance cpolicy Ex-B2: Copy of D.L. Extract Ex-B3 : Driving licence extract

le__ f2_ OL0L ~

'

Judge, Family Court-

cum -VIII.ADJ Court I Mahabubnagar, F/1-C, IV.ADJ (FTC), Mahabubnagar.

1

IN THE COURT OF THE JUDGE, FAMILY COURT-CUM-VIII

ADDITIONAL SESSIONS JUDGE: MAHABUBNAGAR.

Wednesday, this the 4th day of April, 2018

Present:- Smt. K. Radha Devi,

Judge, Family Court,

Mahabubnagar.

M.C.No.30 of 2016

Between:-

Lavanya, W/o. C. Naveen Kumar, D/o. R. Srinivas & R. Manjula, age 25 years, Occupation: House wife, R/o: H.No.3-12-57/C, Veerannapet, Mahabubnagar.

...Petitioner.

AND

C. Naveen Kumar, S/o. C. Hanumantha Rao @ Hanumanthu, Age 31 years, Occupation: Advocate, R/o: Plot No.88, Avanthinagar thota, Mothinagar, Yerragadda, Hyderabad - 500018

...Respondent.

Sub:- Petition under Section 125 Cr.P.C., for grant of maintenance of Rs.15,000/- to the petitioner per month.

* * *

This case is coming up for hearing before me in the presence of

Sri D. Shiva Kumar, Advocate for petitioner and Sri G.S. Srinivas,

Advocate for respondent, and upon hearing the arguments and the matter having stood over for consideration, till this day the Court delivered the following:-

ORDER

This petition is filed by the petitioner U/s.125 Cr.P.C., against the respondent to grant maintenance of Rs.15,000/- per month to the petitioner.

2.The brief averments of the petition are as follows:-

The petitioner is the wife of the respondent. Their marriage was taken place on 07.12.2014 at Mothinagar Community 2 Hall, Hyderabad as per Hindu customs and rites. The mother of the petitioner was deserted her husband very long back. The mother of the petitioner brought up the petitioner and his brothers. The petitioner got studied B.Ed., by coolie earnings of the mother of the petitioner. The elder brother of the petitioner is living separately, working in private sources. The younger brother of the petitioner is studying degree.

2.1.The respondent belonging to very reputed family and financially sound. The parents of the respondent on information about the petitioner as she is well educated voluntarily came to the house of petitioner making marriage proposals and with the consent of the respondent the marriage of petitioner and respondent was solemnized.

2.2.The mother of the petitioner presented Rs.1,50,000/- cash and 4 tulas gold and household articles worth Rs.50,000/- towards dowry at the time of marriage. After marriage the petitioner went to her in-laws house lived happily for three months.

Afterwards the respondent and his relatives started abusing her in filthy language for each and petty issues. Respondent used to insult her for small things before his friends. Several times the petitioner was humiliated, she is tortured by the respondent. She was not allowed to dine along with them. During their wedlock no love and affection was shown towards the petitioner by the respondent. The parents of the respondent often used to say that if they perform second marriage to the respondent, they will get handsome dowry.

The intention of all family members is to get rid off the petitioner 3 and as such they filed FOP.No.25/2016 for divorce with false and untenable grounds. The mother of the petitioner aged 55 years belong to poor family, unable to maintain the petitioner. In the month of January, 2016 the petitioner in a pathetic way driven out by the respondent. The petitioner has no other way go to her mother’s house and since then she has been residing in her mother’s house and she became additional burden. The respondent is not maintaining the petitioner intentionally and also neglecting and refusing her. The respondent is a practicing advocate in various courts of twin cities having roaring practice has income of approximately Rs.30,000/- per month. The father of the respondent was retired as Sub-inspector of police. The respondent is only son to his parents having no other burden. The respondent is having own house at Hyderabad. Several portions in the house were given on rent and approximately getting an income of Rs.40,000/- towards house rents. In all the respondent is getting Rs.70,000/- per month apart from the immovable property. So the respondent can pay easily Rs.15,000/- to the petitioner.

3.Respondent filed counter admitting the marriage of the petitioner and respondent and further submitted that the petitioner is a graduate with B.Sc., B.Ed., and the petitioner relatives approached the parents of the respondent as the respondent financially sound. The other averments made in the petition are false. Infact the marriage was performed by the expenses of the respondent's parents when the petitioner family expressed their inability to perform the marriage. It is denied the respondent and 4 his parents harassed the petitioner physically and mentally, teased her in the presence of parents of the respondent. The respondent and his parents never subjected the petitioner to cruelty as averred in para 1 of page 2. the petitioner herself left the house of respondent without any reasonable cause and caused mental agony to the respondent. The brother of the petitioner came and took the petitioner with him on 25.01.2016 and at that time the petitioner stated that she would return within one week. In spite of the request of the respondent the petitioner adamantly refused to join the respondent. The respondent finally asked the petitioner to come and join the conjugal society of the respondent on or before 10.02.2016 otherwise he will not allow her and the said fact was also intimated to the elder brother of the petitioner also over phone.

Thereafter the respondent's parents tried for mediation through elders and well wishers and therefore he filed FCOP.25/2016 on the file of this Court on 15.07.2016 as the petitioner and her family members were adamant in sending the petitioner and after finally this FCOP.25/2016 and after receiving the notices the petitioner filed this case as counter blast to harass the respondent and to drag him for each and every adjournment from Hyderabad to Mahabubnagar.

The respondent admitted that he is an advocate but denied his earnings were Rs.30,000/- per month. In fact the respondent is practicing as junior advocate and amount given by his senior i.e.,

Rs.5,000/- per month is only his source of income. He was spending

Rs.2,000/- towards family expenses and to take care of his necessities of phone bill, petrol and food expenses. The petitioner 5 herself willfully deserted the respondent and subjected the respondent to cruelty. Therefore prayed to dismiss the petition with costs.

4.In support of the petitioner's case PW-1 and PW-2 are examined and Ex-P1 to Ex-P5 are marked as indicated in the appendix of evidence. On behalf of the respondent RW-1 and RW-2 are examined. Ex-R1 to Ex-R5 are marked as indicated in the appendix of evidence.

5.Heard both sides. The learned counsel of the respondent submitted case laws that the ingredients of Sec.125 Cr.P.C., is to be proved so as to award maintenance to the wife and the deserted wife is not entitled for maintenance. The relevant case laws are part of the record as per memo filed. The counsel for the respondent submitted the written arguments also.

6.Now the point for consideration is :-

1. Whether the petitioner is neglected by the respondent?

2. Whether the respondent having sufficient means to maintain the petitioner?

3. The petitioner is unable to maintain herself?

4. To what relief?

7.Point No.1 :-

The petitioner is examined as PW-1. Ex-P1 aadhar card of the petitioner, Ex-P2 is the marriage photo and Ex-P4 is the 6 wedding card produced by the petitioner in support of her case not disputed documents.

7.1PW-1 in her chief affidavit filed has supported the petition averments stating that she was neglected by the respondent the respondent having sufficient means to maintain her and she is entitled for maintenance as she is residing separately. As per the petition averments the petitioner in the month of January, 2016 in a pathetic condition, was driven out of the house of the respondent and she took shelter at the house of her mother. It is also averred in the petition that dowry was paid to the respondent at the time of marriage. PW-1 was subjected to cross-examination about the presentation towards dowry. Elicited in cross-examination that no bills for gold or household articles were produced to prove the said fact. Further it is also not mentioned the details of the furniture and other articles towards household articles worth Rs.50,000/- given not only that in whose presence cash of Rs.1,50,000/- presented to the respondent also not mentioned.

7.2.As per the evidence of PW-1 in the cross examination that she was leaving the respondent and has given SMS stating that she was going along with her brother in Guntur passenger to their village and she has not mentioned about the particular date of negligence by the respondent and on the said day her brother came down to the house of respondent and took her to the home. PW-1 further admitted that she has not given strong reasons to stay away from the respondent.

7 7.3.As per the case of RW-1 also on 25.01.2016 the petitioner left the house along with his younger brother without informing him. So it is made clear in January, 2016 the petitioner left the house of respondent accompanied by her brother and the same was intimated to the respondent through SMS by the petitioner. So the petitioner went to her parental home on the said day without intimation not taken as a serious lacuna on part of the petitioner.

7.4.It is the case of the petitioner that the respondent and his family members used to humiliated her, insulted her and subjected her to harassment. Further PW-1 has admitted she did not lodge any complaint regarding the insult, humiliation, teasing and torture of the respondent she also did not mention in the chief affidavit of the petitioner, the day from which the actual harassment was started. Generally there may not be any strict point of time to fix the commencement of the harassment in family cases. Non mentioning of the particular time, date of harassment is not fatal to the petitioner's case. As per the answer elicited from PW-1 during the cross examination that she was happy 50% and she was unhappy 50% during 3 months of wedlock indicating the unhappy situation.

7.5.As per the evidence of RW-1 in the cross examination that the petitioner has joined the matrimonial home and she has taken care the petitioner and he refused to accept the petitioner even if she is ready to join with him since she left the house without 8 any cause. The petitioner's case is that she was teased, insulted, humiliated and torture by the respondent. The said version of PW-1 not disproved by the respondent. Ex-R1 is written paper in hand writing of the petitioner, an admitted document, by petitioner disclosed the mind of the petitioner that she should not have married an advocate and her parents forced her to marry with the respondent. There is no whisper about Ex-R2. Further as per the evidence of RW-1 he has taken care of petitioner and looked after her with love and affection, never neglected her. RW-1 in his cross examination admitted that he did not accept the petitioner though she is ready to join with him as she left the house without any cause. There is cause shown by the petitioner when she left the company of the husband. The cause shown is the teasing, insult, humiliation as stated by PW-1 in her chief affidavit. The chief affidavit of RW-1 mentioned that the cause is that the petitioner used to visit her mothers place frequently for days together neglecting her duties as a dutiful wife and left on 25.01.2016. It is the counter of the respondent that in spite of request made by the respondent petitioner did not join him for 10.02.2016 and the mediation tried by the elders and well wishers is futile. In the plea taken in para5 of the petitioner stated that she would returned within one week and her brother was taken her. According to RW-1 the petitioner left the house without any cause, and he tried for mediation through elder and well wishers. It is made clear and from the above evidence the petitioner left the house of the respondent on a particular day on 25.01.2016 having intention to 9 return back. The admission of RW-1 without any cause petitioner left his house is not believable as the allegations in para 4 of the counter are not proved i.e., petitioner is not dutiful wife. Admittedly as on the date of filing of the petition the petitioner is staying with her mother. She is not financially sound. The respondent did not pay any maintenance to the petitioner before filing of the petition or after filing of the petition he was due of payments of warded interim maintenance. The evidence of PW-1 is believed. So the petitioner is neglected by the respondent. For the reasons that the petitioner has not mentioned on which date she was necked out, did not mention she was neglected by the respondent and admitted in

FCOP.25/2016 that the mediators requested her to join and she did not join not disproved the petitioner's case since the date of separation is proved from 25.01.2016 and there was cause for the petitioner to reside separately since she was insulted, humiliated, teased and tortured by the respondent. Respondent did not allow her to join along with them and not showing affection towards her.

The respondent already moved FCOP.25/2016 and there was also refusal by the respondent to accept and take back the petitioner to the matrimonial home. Therefore all the above facts and circumstances of the case indicating the negligent conduct of the respondent, which made the petitioner to reside separately from him by taking shelter at her mother's house. Therefore the negligence of the respondent towards the petitioner is proved in not providing maintenance to the petitioner. Accordingly this point is answered.

10

8.Point No.2 :-

As per the counter the respondent is an advocate getting income of Rs.5,000/- per month as remuneration. The petitioner has failed to prove that there are properties in the name of respondent. RW-1 admitted that he has no dependents except his wife. As per the counter of the respondent Rs.5,000/- is his honorarium. He was spending

Rs.2,000/- towards travelling (petrol), phone bill and food expenses. The respondent is an advocate working under the senior. Ex-R5 is issued by his senior RW-2. The petitioner was awarded with Rs.2,000/- per month towards petrol and maintenance in FCOP.No.25/2016 U/Sec.24 of HM Act.

The respondent is practicing as an advocate in Hyderabad city and he requires minimum of Rs.2,000/- per month towards his maintenance. The facts revealed that an advocate will earn more than Rs.5,000/- p.m., in city and a minimum of more than Rs.2,000/- per month is required for a person to live. RW-2 did not show the name of RW-1 (respondent) in IT returns. So the payment of Rs.5,000/- per month by RW-2 to RW-1 not believable intoto. Therefore the income of the RW-1 as a practicing advocate in Hyderabad will get more than Rs.5,000/- per month and it may be not less than Rs.15,000/- per month. Therefore point No.2 is answered in favour of the petitioner that the respondent is having sufficient means.

9.Point No.3 :-

As per respondent's contention the petitioner is a graduate with B.Sc., B.Ed., degree. PW-1 admitted that she was qualified degree but not doing any job and she attended Group-II examination. The respondent has not placed any evidence that the petitioner is doing any job and she was earning to deny maintenance to her. Therefore point 11 No.3 is answered in favour of the petitioner that she was unable to maintain herself.

9.1.The marriage of the petitioner and respondent is admitted.

The petitioner is residing separately is neglected by the respondent.

Though the petitioner is a graduate, her earning is not proved. The respondent is a practicing advocate and his income will be more than

Rs.10,000/- per month. In FCOP.No.25/2016, Rs.2,000/- is ordered to be paid to the petitioner by the respondent U/Sec.24 of HM Act. In this case in Crl.M.P.No.139/2016, dt.10.11.2016 Rs.3,000/- was awarded to the petitioner towards interim maintenance payable from the date of filing of said petition.

The case laws submitted by the respondent are not helpful to the respondent's case in the facts and circumstances of the case. As per the case law reported in Kalyan Dey Chowdhury, Vs. Rita Dey Chowdhury

Nee Nandy 1 “The awarding of Rs.25% of husband salary is justified and fit in the circumstances of the case.”

Therefore taking into consideration of the facts and circumstances, it is just and proper to award maintenance of Rs.3,500/- per month to the petitioner.

10.In the result, the petition is allowed Rs.3,500/- (Rupees three thousand five hundred only) per month is awarded to the petitioner towards her maintenance, payable by the respondent, from the date of this order. The respondent is directed to pay the amount, so ordered on or before 10th of every succeeding month by deposit into the Bank Account of the petitioner. The interim maintenance awarded by this Court in 12017 Law Suit (SC) 424 12

Crl.M.P.No.139/2016, dt.10.11.2016, if any, paid by the respondent shall

be adjusted.

Dictated to the stenographer, transcribed by her, corrected and

pronounced by me in the open Court, this the 4th day of April, 2018.

Judge,

Family Court-cum-VIII.ADJ, Mahabubnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENT:

PW-1: Lavanya RW-1: Naveen Kumar RW-2: K. Amarnath Yadav

EXHIBITS MARKED:

FOR PETITIONER:

Ex-A1: Xerox copy of Aadhar Card of petitioner Ex-A2: Marriage photo Ex-A3: Residence photo of the respondent Ex-A4: Wedding card Ex-A5: Registration search of vehicle bearing No.AP28AY-3201 stands in the name of the respondent [MARUTHI WAGON R]

FOR RESPONDENT:

Ex-R1: Written paper in the handwriting of the petitioner Ex-R2: Soleloquey letter written by petitioner Ex-R3: Xerox copy of qualification in Hindi in the year 2012 Ex-R4: Copy of RC of vehicle car bearing No.AP28AY-3201 Ex-R5: Letter issued by RW-2, dt.01.08.2017.

Judge,

Family Court-cum-VIII.ADJ, Mahabubnagar.

1

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

FAMILY COURT-CUM-VIII.ADDITIONAL DISTRICT AND SESSIONS

JUDGE, MAHABUBNAGAR

Wednesday, this the 4th day of April, 2018

Present :- Smt. K. Radha Devi

Judge,

Family Court-Cum-VIII Addl. District Judge, Mahabubnagar.

MVOP.No.422 of 2014

Between:-

1. Smt. Oju Yashoda @ Laxmi, W/o. Late Oju Thimmappa, aged 32 years, Occ: Housewife,

2. Mallamma, D/o. Late Oju Thimmappa, aged 8 years, minor,

3. Mallesh, S/o. Late Oju Thimmappa, aged 6 years, minor

4. Hampayya, S/o. Late Oju Thimmappa, aged 5 years, minor

5. Tirulesh, S/o. Late Oju Thimmappa, aged 4 years, minor

Petitioners No.2 to 5 are the minors, u/g. of their natural mother Smt. Oju Yashoda, the petitioner No.1 herien.

All are R/o: H.No.5-89, Rama Samudram Part & H/o. Jaklair, Makthal mandal, Mahabubnagar District, presently r esiding at Yenugonda village of Mahabubnagar mandal & District.

...Petitioners.

A N D

1. Kamireddy Jayaprakash Reddy, S/o. Chenga Reddy, aged about not known, but major, Occ: Owner of the Lorry bearing No.AP26TA-7119, R/o:D.No.3-5-158/3, RTC Back side, Rajagopalapuram, Naidupeta – 524126, Nellore District, Andhra Pradesh.

2. Shriram General Insurance Company Ltd., rep.by its Branch Manager, E/8, EPIP, RIICO Industrial Area, Sitapura, Jaipur, Rajasthan – 302022.

…Respondents.

Sub:- Claim petition filed Under Section 166 of the M.V. Act 1988 for a compensation of Rs.6,00,000/- for the death of deceased Oju Thimmappa, who died in a motor vehicle accident.

* * *

This MVOP coming up before me for final hearing in the presence of Sri N. Narender Goud, Advocate for the petitioners. Sri Swadesh, Advocate for respondent No.2 and the respondent No.1 remained ex- parte and having stood over for consideration, this court delivered the following:- 2

O R D E R

This petition is filed by the petitioners U/Sec.166 of MV

Act claiming compensation of Rs.6,00,000/- for the death of deceased Oju Thimmappa. Petitioner No.1 is the wife, petitioners

No.2 to 5 are children of the deceased respectively.

2.The petitioner's case is that, on 24.10.2011 morning the deceased Oju Thimmappa and one Merpubai Mallesh were went to

Sri Hanman Temple, Isrampally village of Deverakadra mandal, on

Hero Honda Splendor Motor Cycle bearing No.AP22E-4862, after having Darshan, while returning to their village on the way when they reached near Badalkunta Stage, Makthal mandal,

Mahabubnagar District at about 5.30 p.m., one lorry bearing

No.AP26TA-7119 driven by its driver with high speed, in rash and negligent manner proceeding towards Raichur side to

Mahabubnagar dashed to the motor cycle of the deceased Oju

Thimmappa, due to which both were sustained severe injuries and deceased Oju Thimmappa was died on the spot. Basing on the complaint lodged by Merpubai Mallesh, Makthal police, registered a case in Cr.No.154/2011, U/Sec.304-A and 337 of IPC against the driver of the lorry bearing No.AP26TA-7119.

At the time of accident, deceased Oju Thimmappa was quite hale and healthy and aged about 39 years, doing agriculture work having agriculture land of Ac.4-00 and used to earn

Rs.1,00,000/- per annum from agriculture apart from that he also cultivating commercial crops and earning huge amounts on every 3 crop and contributing he same to the his family. Due to sudden death of the deceased the petitioner No.1 lost love and affection and right of consortium of her beloved husband and the petitioners

No.2 to 5 children of the deceased lost love and affection of their father at their childhood and they lost their bright future of education. The deceased is only earning member of the family, the petitioners are depended on the earnings of the deceased only.

Except the petitioners there are no other legal heirs to the deceased. The petitioners sustained much mental agony and sustained huge loss mentally, financially and lost only earning support of the family. Therefore the petitioners claimed compensation a sum of Rs.6,00,000/- from the respondents No.1 and No.2.

3.Respondent No.1 remained ex-parte to the proceedings.

4.Respondent filed counter stating that he has not issued any cover note and respondent No.1 is the insured. Further the crime vehicle is not holding a valid and effective driving licence at the time of accident. Respondent No.1 willfully and intentionally allowed the driver to drive the vehicle violating the policy conditions. The respondent No.1 has failed to comply Sec.134 (C) of MV Act and police not complied Sec.158(6) of MV Act. The respondent No.1 plied the vehicle without valid permit and fitness.

The respondent does not admit the age and income of the deceased, the manner in which accident took place is denied. The respondent is entitled for defence U/Sec.175 of MV Act and claim 4 is excessive, exorbitant and exonerated and the petitioners are not entitled for the said claim.

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

1. Whether the accident occurred on 24.10.2011 at about 5.30 p.m., near Badalkunta stage, Makthal mandal due to the rash and negligent driving of the driver of the vehicle i.e., lorry bearing No.AP26TA-7119?

2. Whether the driver of the offending vehicle was having valid driving licence as on the date and time of the accident?

3. Whether the insurance policy was valid as on the date of accident?

4. What was earning income of the deceased as on the date of accident?

5. Whether the petitioners are entitled to claim compensation from which of the respondent? If so, to what amount?

6. To what relief?

6. In support of the petitioner's case PW-1 and PW-2 are examined Ex-A1 to Ex-A10 are marked as indicated in the appendix of evidence. No evidence is let in by the respondents.

Ex-B1 policy copy is marked.

7.Heard both sides.

8.Issue No.1 :-

As per the petitioners case the accident occurred on 24.10.2011 at about 5.30 p.m., near Badalkunta stage, Makthal mandal due to rash and negligent driving of the driver of the lorry bearing No.AP26TA-7119. The petitioners are wife and children of 5 the deceased late Oju Thimmappa and petitioners No.2 to 5 are minors. PW-1 wife of the deceased deposed that on 24.10.2011 her husband and Merpubai Mallesh went to Hanman Temple

Isrampally village on Hero Honda Splendor Motor Cycle bearing

No.AP22E-4862 and when they were returning to their village, the offending vehicle driven by its driver proceeding Raichur to

Mahabubnagar, as a result her husband died and mallesh received severe injuries and the complaint was lodged by Mallesh. She also deposed that her husband was aged 39 years at that time earning

Rs.1,00,000/- per month on his agricultural land of Ac.4-00 contributing to his family and due to sudden death she and her minor children lost love and affection of the deceased, bright future of the children and education. She filed Ex-A1 to Ex-A10 to prove the claim. Ex-A1 is the FIR. Ex-A2 is the certified copy of crime detail form indicating the accident took place at the scene of offence on the relevant day. Ex-A4 disclosed on the relevant day the deceased (Oju Thimmappa) died in the accident due to hemorrhagic and androgenic shock due to RTA. Ex-A8 is the inquest report also proved the prosecution case that the deceased died in a motor vehicle accident. Ex-A3 is the charge sheet is filed against the driver of the crime vehicle bearing No.AP26TA-7119 for the offence U/Sec.304-A and 337 of IPC. It is also disclosed that

Merpubai Mallesh is the complainant and also injured. Ex-A3 disclosed due to rash and negligent driving of the driver of the crime vehicle only the accident took place. Ex-A5 is the MVI report 6 also disclosed the accident is not due to any mechanical defects of the vehicle and the vehicle was driven by the driver at relevant time. Ex-A9 is the permit copy of the vehicle and Ex-A10 is the xerox copy of driving licence of the driver of the crime vehicle. Ex-

A6 is the xerox copy of RC of crime vehicle.

9.PW-1 was subjected to cross-examination but nothing could be elicited to disbelieve her version of above documentary evidence.

10.PW-2 the complainant also deposed about the rash and negligent driving of the driver of the crime vehicle. The evidence of PW-2 also unchallenged on any other grounds. Thus the evidence of PW-1 and PW-2 proved satisfactorily that accident occurred due to rash and negligent driving of the driver of the crime vehicle bearing No.AP26TA-7119. Therefore this issue is answered in favour of the petitioners.

11.Issue No.2 :-

As per the counter allegations the driver did not possess valid driving licence as on the date and time of the accident.

Ex-A10 copy of driving licence produced by the petitioner proves that the driver possessed valid driving licence at the time of accident. Ex-A5 also disclosed that driving licence possessed by the driver as on the date of accident. Therefore this issue is answered in favour of the petitioners that the driver of the crime 7 vehicle possessed valid driving licence.

12.Issue No.3 :-

As per the petitioners case the accident took place on 24.10.2011. Ex-B1 is the policy copy marked with the consent of both sides corresponding to Ex-A7. The period covered under

Ex-B1 policy is from 04.08.2011 to 03.08.2012 vide bearing

No.10003/31/12/227999. Therefore this issue is answered in favour of the petitioner.

13.Issue No.4 :-

As per the claim petition the deceased age was shown

as 39 years. As per Ex-A1 FIR, Ex-A3 charge sheet, Ex-A4 PME

report and Ex-A8 the age of the deceased is shown as 39 years.

But age proof has been filed by the petitioners. Therefore the age of the deceased is taken in between the age group of 41-45 and appropriate multiplier is '14' as per settled law in Sarala Verma [SMT] and Others, Vs. Delhi Transport Corporation and Another 1 . As per the petitioners case the deceased is an agriculturist and used to earn Rs.1,00,000/- per annum. The petitioners have not produced any evidence that the deceased was an agriculturist having

Ac.4-00 of land and receiving income of Rs.1,00,000/- per annum.

There is no documentary evidence that the deceased was doing agriculture having Ac.4-00. Therefore the income of the deceased can be taken as Rs.4,000/-. The deceased has five legal heirs.

1 2009(6) SCC 121 8

Therefore 1/4th deduction should be taken from his salary. After deduction of 1/4th the monthly income of the deceased is taken as of Rs.3,000/- (4,000/4 = 1,000 → 4,000 – 1,000). The annual income of the deceased is taken as income of the deceased is of

Rs.36,000/- (3,000 x 12). By applying the appropriate multiplier of '14”the annual income of the deceased is taken as

Rs.5,04,000/- (36,000 x 14). The petitioners are entitled for

Rs.15,000/- towards funeral expenses. For every 3 years (10%) has to be added to funeral expenses, consortium and loss of estate as per decision reported in National Insurance company Limted, Vs.

Pranay Sethi and Others. Therefore the petitioners are entitled for

Rs.16,500/- (15,000+1500) towards funeral expenses. The petitioner No.1 is entitled for Rs.40,000/- towards consortium.

After enhacing into 10% in every 3 years the consortium will be arrived to Rs.44,000/- (40000+4000)as per decision reported in

National Insurance company Limted, Vs. Pranay Sethi and Others. The petitioners are entitled for Rs.15,500/- towards loss of love and affection. Therefore totally the petitioners are entitled for compensation of amount of Rs.5,80,000/-.Therefore the respondents No.1 and 2 are liable to pay compensation jointly and severally.

16.Issue No.6 :-

In the result,the petition is allowed a sum of Rs.5,80,000/- (Rupees five lakhs eighty thousands only) is awarded to the petitioner towards compensation with interest @ 9% per annum from the date of filing of petition till the date of deposit of amount into Court with proportionate costs against the respondents No.1 and 2 jointly and severally.

9

Respondent No.2 do pay compensation of Rs.5,80,000/- (Rupees five lakhs eighty thousands only) with interest @ 9% per annum on said compensation amount from the date of filing of claim petition till date of deposit of amount into Court as well proportionate costs.

Advocate fee is fixed at Rs.2,000/-.

Respondent No.2 is directed to deposit compensation amount, interest as well costs within a period of 30 days from the date of compensation awarded.

On deposit of compensation amount interest and proportionate costs the compensation is portioned among the petitioners in the following manner.

1. Claim Petitioner No.1 (wife of the deceased) ofRs.2,80,000/-

2. Claim Petitioner No.2 (minor daughter of the deceased) ofRs.75,000/-

3. Claim Petitioner No.3 (minor son of the deceased) ofRs.75,000/-

4. Claim Petitioner No.4 (minor son of the deceased) ofRs.75,000/-

5. Claim Petitioner No.5 (minor son of the deceased) ofRs.75,000/-

Each petitioner is entitled to claim their share of compensation amount with accrued interest.

On deposit of compensation amount of share of the petitioner No.1 is permitted to withdraw entire amount of Rs.2,80,000/- (Rupees two lakhs eighty thousands only) with accrued interest and proportionate costs. The compensation share amount of Rs.75,000/- (Rupees seventy five thousands only) each of the petitioner No.2 to 5 shall be kept in fixed deposit in any Nationalized Bank till attaining of their majority.

Partly typed by the stenographer, partly dictated to the stenographer, transcribed by her, corrected and pronounced by me in the open Court, on this the 4th day of April, 2018.

Judge,

Family Court-cum-VIII.ADJ Court, Mahabubnagar.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED FOR

PETITIONERS: RESPONDENT:

PW-1: Smt. Oju Yashoda @ Laxmi None

PW-2: Mallesh 10

EXHIBITS MARKED FOR

PETITIONERS:

Ex-A1:CC of FIR with complaint

Ex-A2:CC of crime detaiils form

Ex-A3:CC of charge sheet

Ex-A4:CC of PME report

Ex-A5:CC of MVI report

Ex-A6:Xerox copy of RC of crime vehicle

Ex-A7:Xerox copy of insurance policy of crime vehicle

Ex-A8: CC of inquest report

Ex-A9: Permit copy of crime vehicle

Ex-A10: Xerox copy of driving licence

RESPONDENT:

Ex-B1:Policy copy

Judge,

Family Court-cum-VIII.ADJ Court, Mahabubnagar.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

MAHABUBNAGAR.

Dated this the 10th day of March, 2016

Present:- Smt. K. Radha Devi,

Judge,

Family Court-Cum-VIII Addl. District Judge, Mahabubnagar. FAC II Addl. District Judge, Mahabubnagar.

OS No.24 of 2013

Between:-

Sri Meer H Ali son of Late Mir Wajid Ali, aged 57 years, Occ: Business, R/o: 4635, Main Street No.3A Skokie ILL 60076 U.S.A. presently residing at 8-2-603/23/7, Road No.10 Banjara Hilla Hyderabad.

… Plaintiff A N D

1. Mir Zafar Ali son of Late dMir Wajid Ali aged 60 years, Occ: Business, R/o: 5863, High Gate Road, Carpenters Vike ILL 60010 USA.

2. Mir Muzaffar Ali son of Late Mir Wajid Ali, aged 55 years, Occ: Business, R/o: 735, Cheyenne Late Elgin ILL 60123 USA

3. Basheerunissa Begum, D/o. Late Mir Wajid Ali, aged 53 years, Occ: Household, R/o: Desplains ILL 60116 USA

4. Meer Inayat Ali son of Late Mir Wajid Ali, aged 51 years, Occ: Business, R/o: Irving PK Road ILL 60125 USA (defendant NOs. 1 to 4 presently residing at C1, AB Heights, Premnagar, Hyderabad)

5. M. Satti Reddy, son of Narsimha Reddy, aged about 55 years, Occ: Business, R/o: 9-7-129/2, Marutinagar, Santoshnagar Hyderabad.

6. Smt. G. Padmavathi wife of Sri G. Ashvini Kumar, aged about 39 years, Occ: Household, R/o: 17-2-1100, Rain Bazar, Hyderabad.

7. Sri Gulzarilal Kedia son of late Ramnath Kedia, aged about 85 years, Occ: Business, R/o: 5-9-30/1/4/3, Road No.5, Basheer Bagh, Palace Colony, Basheerbagh, Hyderabad.

8. Vijender Kedia son of Gulzarilal Kedia, aged 48 years, Occ: Business, R/o: 5-9-30/1/4/3, Road No.5, Basheer Bagh, Palace Colony, Basheerbagh, Hyderabad.

9. Jitendar Kumar Kedia son of Gulzarilal Kedia, aged 40 years, Occ: Business, R/o: 5-9-30/1/4/3, Road No.5, Basheer Bagh, Palace Colony, Basheerbagh, Hyderabad.

10. Chekkala Dayanand Rao son of Babaiah, aged 53 years, Occ: Employee.

11. Chekkala Bhagyamma wife of Babaiah aged 94 years , Occ: House wife.

12. Chekkala Bharathamma wife of Dayanand Rao, aged 56 years, Occ: Housewife

13. Chekkala Yogeshwara Nanda Rao son of Dayanad Rao, aged 26 years, Occ: Student.

14. Sri Chekkala Nityanand Rao son of Dayanand Rao, aged 23 years, Occ: Student

15. Chekkala Vidananda Rao son of Dayanand Rao, aged 24 years, Occ: Student.

(Nos.10 to 15 are residents of Vijayanagar Colony, Hyderabad)

16. M. Srinivas son of M. Mallaiah, aged 40 years, Occ: Agriculture.

17. E. Babaiah son of Rajaiah, aged 65 years, Occ: Agriculture

18. Y. Sayanna son of Anthaiah, aged 63 years, Occ: Agriculturist (Nos.16 to 18 are residents of Moghalgidda village, Shadnagar Mandal, Mahaboobnagar District.)

19. M/s. Kedia Attoys Ltd. Rep. by its Managing director Jitender Kumar Kedia, S/o. Gulzarilal Kedia, aged 34 years, Occ: Business, R/o:19-2-226, Bahadurpura Hyderabad (The D-19 is added as per orders in I.A.461/13, Dt:12.11.2014)

.. Defendants.

* * *

This suit coming up before me for final hearing on 04.03.2016 in the presence of Sri C. Rajeev Kumar, Advocate for the plaintiff, Sri Krishna Reddy, Advocate for Defendants Nos.2 and 3, Sri K. Mohan Rao, Advocate for defendants 5 and 6, Sri N. Ravi Kumar, Advocate for defendants 7 to 9, Sri P. Rana Kamalasan, Advocate for defendants 10 to 15 and Sri K. Pratap Kumar, Advocate for defendant 19 defendants 1, 4, 16 to 18 were set ex-parte, defendants No.2, 3 and 4 are set exparte. And upon perusing the material on record, and having stood over for consideration, this court delivered the following:-

J U D G M E N T

This suit is filed for partition of suit schedule property and allotting 1/5th share to the plaintiff.

2.The averments of the plaint are that:-

The grandfather of the plaintiff and defendants 1 to 4 by name late Sri Mir Fazal Ali was absolute owner and possessor of the land in Sy.No.263, 258, 257 and 256 admeasuring Ac.55-14 gts situated at Moghal Gidda village, the same is suit schedule property.

After the death of Sri Mir Fazal Ali the father of the plaintiff and defendants 1 to 4 of Sri Mir Wajid Ali, being only son to the suit property as absolute owner and possessor. The name of Sri Mir Zafar

Ali is reflected in the concerned revenue records in the year 1973. His name was reflected in the faisal patti in the year 76-77 so also in ROR for the year 78-79 his name was reflected. The name of Mir Zafar Ali also reflected in the pahanies for the year 84-85 and 85-86. The father of the plaintiff and defendants 1 to 4 Sri Mir Wajid Ali died in the year 2000. After death of Mir Wajid Ali his children the plaintiff and defendants 1 to 4 are the absolute owners and possessors having their respective Sharai, share, as per Muslim Personal Law. An appeal was also filed by Mir Zafar Ali U/Sec.15(2) of the Hyderabad ROR 1358 fasali for correction of the records in respect of suit property, since the names of Aula Narsaiah and Gattugari Papaiah were wrongly entered in the records as protected tenants. The Additional Collector ordered on 10.06.1968 for deletion of the names of the above alloted protected tenants and to substitute the name of Mir Zafar Ali in file

No.A1/1415/1968.

3. Aggrieved by the orders of the Additional Collector an appeal was preferred before the Commissioner of Land Revenue A.P.

Hyderabad and appeal was allowed. Again Mir Zafar Ali has filed writ petition against the orders of the Commissioner Land Revenue, A.P.

Hyderabad. The said writ petition was allowed and the orders of the

Additional Collector Mahabubnagar dated 31.01.1983 was upheld

removing the names of the tenants from the kasra pahani of 1954-55 in respect of the suit lands. The plaintiff has been residing in USA in view of his vocation and he has been sparingly visiting the suit schedule property. Taking advantage of the same defendants 1 to 4 have developed evil designs to usurp the suit property exclusively for themselves. The plaintiff demanded defendants 1 to 4 for partition in the August of 2003 and they requested to wait for a while. On enquiries made by the plaintiff he came to know the defendants 1 to 4 in collusion with D5 and D6 have created same documents in favour of the D7 and D8 vide sale deed bearing No.3994/2003, dated 13.08.2003 by creating the documents and claiming the portions of the suit property.

4.The plaintiff respectively submits that though the above mentioned sale deed has been created by the defendants in collusion with each other, possession of the property continues in joint possession of plaintiff and defendants 1 to 4. Subsequently the plaintiff made demand for partition and separate possession to defendants 1 to 4 on 07.12.2012 and 08.12.2012, defendants 1 to 4 have bluntly refused to partition the same. It is in the said circumstances that the plaintiff is left with no other remedy but to approach this Hon'ble Court seeking the relief of partition and separate possession by metes and bounds with regard to the suit schedule property.

5.The plaintiff further submits that the above mentioned sale deed dated 13.08.2003 bearing document No.3994/2003 is a sham document and brought into existence with an intention to knock away the suit schedule property in which the plaintiff has his due sharai share as per the muslim personal law applicable to the parties. The plaintiff is constrained to seek relief of declaration to declare the above mentioned sale deed as null, void and nonest in law.

4. Written statement of the D2 and D3 filed. They submitted that the grandfather Late Mir Fazal Ali was absolute owner and possessor of suit property and after his death their father Mir Wajid Ali succeeded the property and thereafter they succeeded the property.

They also admitted that the name of Mir Zafal Ali was mutated in revenue records as pattadar and possessor and his name was reflected in the revenue records as stated by plaintiff. The first defendant's name was shown in the revenue record do not confer him any exclusive title and as per muslim law the plaintiff and all the defendants are entitled for share. In that he submitted that the names of protected tenants were removed from the records and the plaintiff has been residing in USA and they denied rest of the allegations. But they specifically stated all the parties of the suit are entitled share in the property of their father. The property continued to be in joint and consideration possession of the plaintiff and D1 to

D4 they also admitted the plaintiff has demanded for partition on 07.12.2012 and 08.12.2012. The sale deed dated 13.08.2003 bearing documents No.3994/2003 was sham document got into existence with an intention to knock away property. The alienation/transfer of property would not bind of them and they also pleased to decree the suit of plaintiff and also to allow their shares.

5. The defendants 1, 4, 16 to 18 were set ex-parte to the proceedings. Defendants 5, 6, 7, 9, 10 to 15, 19 have not filed their written statements and their rights are forfeited.

6. On the basing of the plaint, written statement of D2 and D3 this court framed the following issues on 27.12.2013 for trial:-

1. Whether the plaintiff is entitled to preliminary decree for partition of suit schedule properties as prayed for?

2. Whether the plaintiff is entitled for declaration that registered sale deed 13.08.2003 bearing document No.3994/2003 is null and void?

3. To what relief?

7. In support of the platinff's case PW-1 was examined by filing his chief affidavit. PW-1 is none other than the plaintiff in the suit, through him Exs A1 to A8 are marked in support of his claim.

Ex-A1 is the CC of pahani for the year 1976-77. Ex-A2 is the CC of ROR. Ex-A3 is the CC of registered sale deed document

No.1587/1980. Ex-A4 is the CC of registered sale deed document

No.3994/2003, dt.13.08.2003. Ex-A5 is the CC of registered sale deed document No.1667/2003, dt.31.03.2003. Ex-A6 is the CC of registered sale deed document No.3089/2003, dt.10.05.2003. Ex-A7 is the CC of registered sale deed document No.3090/2003, dt.10.05.2003. Ex-A8 is the CC of final tenancy extract.

8.Issues No.1 to 3:-

The chief affidavit of PW-1 discloses that originally the property belongs to Mir Fazal Ali and same was succeeded by Mir

Wajid Ali, the father of the plaintiff and defendants and the name of the first defendant was mutated in the revenue records including kasra pahani and the names of the protected tenants were deleted and the suit schedule property was a property liable for partition among with the plaintiff and defendants. As per Exs A1 to A8 and the defendants have no right to transfer the property by creating sham documents in favour of other defendants.

9.The above evidence of PW-1 not challeged by D2 and D3 nor any other defendants. There is no dispute that first defendant is the brother of plaintiff and D2 and D3, Exs A1 and A2 shows the name of Mir Zafar Ali was pattadar of the suit survey number. The defendants 2 and 3 did not deny the rights of the plaintiff and Mir

Zafar Ali, looking after the property after their father's death. Ex-A3 is the CC of registered sale deed document No.1587/80 showing Mir

Wajid Ali is the absolulte owner and pattadar of the suit property. Exs

A4 to A7 filed to show the transfer of property to the defendants other than D1 to D4. Ex-A8 shows the names of tenants and tenancy removed from the records. Therefore the suit property holds in the name if Mir Wajid Ali is clear. Admittedly the plaintiff and defendants 1 to 4 are legal heirs to be succeeded to the estate of the Mir Wajid Ali after his death. The plaintiff and D1 to D4 are entitled for share as per muslim law prevailing. Nobody has no right to alienate the share of the others and their right cannot be defeated. Therefore I hold this issue in favour of the plaintiff that he along with D1 to D4 are entitled for share i.e., 1/5 in the estate of their father Mir Wajid Ali.

10.Issue No.2:-

No separate finding is required to be given on this issue in the absence of any other evidence for relief of cancellation of sale deed as the rights of plaintiff and D1 to D4 are involved and plaintiff is not a party to the document Ex-A3.

11.Issue No.3:-

In the result, suit is preliminarily decreed for partition of the suit schedule property into 5 equal shares by allotting 1/5th share to the plaintiff. The relief of cancellation of sale deed is refused.

Dictated to Stenographer Grade-III, transcribed by her,

corrected and pronounced by me in open court on this the 10th day of March, 2016.

JUDGE,

Family Court-cum-VIII ADJ, Mahabubnagar, FAC, II-ADJ, Mahabubnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS:- FOR DEFENDANTS:-

PW-1: Meer H. Ali None

EXHIBITS MARKED

FOR PLAINTIFFS:-

Ex-A1: CC of pahani for the year 1976-77.

Ex-A2: CC of ROR.

Ex-A3: CC of registered sale deed document No.1587/1980.

Ex-A4: CC of registered sale deed document No.3994/2003, dt.13.08.2003.

Ex-A5: CC of registered sale deed document No.1667/2003, dt.31.03.2003.

Ex-A6: CC of registered sale deed document No.3089/2003, dt.10.05.2003.

Ex-A7: CC of registered sale deed document No.3090/2003, dt.10.05.2003.

Ex-A8 is the CC of final tenancy extract.

FOR DEFENDANTS:- -Nil.

JUDGE,

Family Court-cum-VIII ADJ, Mahabubnagar, FAC, II-ADJ, Mahabubnagar.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

MAHABUBNAGAR.

Dated this the 10th day of March, 2016

Present:- Smt. K. Radha Devi,

Judge,

Family Court-Cum-VIII Addl. District Judge, Mahabubnagar. FAC II Addl. District Judge, Mahabubnagar.

OS No.24 of 2013

Between:-

Sri Meer H Ali son of Late Mir Wajid Ali, aged 57 years, Occ: Business, R/o: 4635, Main Street No.3A Skokie ILL 60076 U.S.A. presently residing at 8-2-603/23/7, Road No.10 Banjara Hilla Hyderabad.

… Plaintiff A N D

1. Mir Zafar Ali son of Late dMir Wajid Ali aged 60 years, Occ: Business, R/o: 5863, High Gate Road, Carpenters Vike ILL 60010 USA.

2. Mir Muzaffar Ali son of Late Mir Wajid Ali, aged 55 years, Occ: Business, R/o: 735, Cheyenne Late Elgin ILL 60123 USA

3. Basheerunissa Begum, D/o. Late Mir Wajid Ali, aged 53 years, Occ: Household, R/o: Desplains ILL 60116 USA

4. Meer Inayat Ali son of Late Mir Wajid Ali, aged 51 years, Occ: Business, R/o: Irving PK Road ILL 60125 USA (defendant NOs. 1 to 4 presently residing at C1, AB Heights, Premnagar, Hyderabad)

5. M. Satti Reddy, son of Narsimha Reddy, aged about 55 years, Occ: Business, R/o: 9-7-129/2, Marutinagar, Santoshnagar Hyderabad.

6. Smt. G. Padmavathi wife of Sri G. Ashvini Kumar, aged about 39 years, Occ: Household, R/o: 17-2-1100, Rain Bazar, Hyderabad.

7. Sri Gulzarilal Kedia son of late Ramnath Kedia, aged about 85 years, Occ: Business, R/o: 5-9-30/1/4/3, Road No.5, Basheer Bagh, Palace Colony, Basheerbagh, Hyderabad.

8. Vijender Kedia son of Gulzarilal Kedia, aged 48 years, Occ: Business, R/o: 5-9-30/1/4/3, Road No.5, Basheer Bagh, Palace Colony, Basheerbagh, Hyderabad.

9. Jitendar Kumar Kedia son of Gulzarilal Kedia, aged 40 years, Occ: Business, R/o: 5-9-30/1/4/3, Road No.5, Basheer Bagh, Palace Colony, Basheerbagh, Hyderabad.

10. Chekkala Dayanand Rao son of Babaiah, aged 53 years, Occ: Employee.

11. Chekkala Bhagyamma wife of Babaiah aged 94 years , Occ: House wife.

12. Chekkala Bharathamma wife of Dayanand Rao, aged 56 years, Occ: Housewife

13. Chekkala Yogeshwara Nanda Rao son of Dayanad Rao, aged 26 years, Occ: Student.

14. Sri Chekkala Nityanand Rao son of Dayanand Rao, aged 23 years, Occ: Student

15. Chekkala Vidananda Rao son of Dayanand Rao, aged 24 years, Occ: Student.

(Nos.10 to 15 are residents of Vijayanagar Colony, Hyderabad)

16. M. Srinivas son of M. Mallaiah, aged 40 years, Occ: Agriculture.

17. E. Babaiah son of Rajaiah, aged 65 years, Occ: Agriculture

18. Y. Sayanna son of Anthaiah, aged 63 years, Occ: Agriculturist (Nos.16 to 18 are residents of Moghalgidda village, Shadnagar Mandal, Mahaboobnagar District.)

19. M/s. Kedia Attoys Ltd. Rep. by its Managing director Jitender Kumar Kedia, S/o. Gulzarilal Kedia, aged 34 years, Occ: Business, R/o:19-2-226, Bahadurpura Hyderabad (The D-19 is added as per orders in I.A.461/13, Dt:12.11.2014)

.. Defendants.

* * *

This suit coming up before me for final hearing on 04.03.2016 in the presence of Sri C. Rajeev Kumar, Advocate for the plaintiff, Sri Krishna Reddy, Advocate for Defendants Nos.2 and 3, Sri K. Mohan Rao, Advocate for defendants 5 and 6, Sri N. Ravi Kumar, Advocate for defendants 7 to 9, Sri P. Rana Kamalasan, Advocate for defendants 10 to 15 and Sri K. Pratap Kumar, Advocate for defendant 19 defendants 1, 4, 16 to 18 were set ex-parte, defendants No.2, 3 and 4 are set exparte. And upon perusing the material on record, and having stood over for consideration, this court delivered the following:-

J U D G M E N T

This suit is filed for partition of suit schedule property and allotting 1/5th share to the plaintiff.

2.The averments of the plaint are that:-

The grandfather of the plaintiff and defendants 1 to 4 by name late Sri Mir Fazal Ali was absolute owner and possessor of the land in Sy.No.263, 258, 257 and 256 admeasuring Ac.55-14 gts situated at Moghal Gidda village, the same is suit schedule property.

After the death of Sri Mir Fazal Ali the father of the plaintiff and defendants 1 to 4 of Sri Mir Wajid Ali, being only son to the suit property as absolute owner and possessor. The name of Sri Mir Zafar

Ali is reflected in the concerned revenue records in the year 1973. His name was reflected in the faisal patti in the year 76-77 so also in ROR for the year 78-79 his name was reflected. The name of Mir Zafar Ali also reflected in the pahanies for the year 84-85 and 85-86. The father of the plaintiff and defendants 1 to 4 Sri Mir Wajid Ali died in the year 2000. After death of Mir Wajid Ali his children the plaintiff and defendants 1 to 4 are the absolute owners and possessors having their respective Sharai, share, as per Muslim Personal Law. An appeal was also filed by Mir Zafar Ali U/Sec.15(2) of the Hyderabad ROR 1358 fasali for correction of the records in respect of suit property, since the names of Aula Narsaiah and Gattugari Papaiah were wrongly entered in the records as protected tenants. The Additional Collector ordered on 10.06.1968 for deletion of the names of the above alloted protected tenants and to substitute the name of Mir Zafar Ali in file

No.A1/1415/1968.

3. Aggrieved by the orders of the Additional Collector an appeal was preferred before the Commissioner of Land Revenue A.P.

Hyderabad and appeal was allowed. Again Mir Zafar Ali has filed writ petition against the orders of the Commissioner Land Revenue, A.P.

Hyderabad. The said writ petition was allowed and the orders of the

Additional Collector Mahabubnagar dated 31.01.1983 was upheld

removing the names of the tenants from the kasra pahani of 1954-55 in respect of the suit lands. The plaintiff has been residing in USA in view of his vocation and he has been sparingly visiting the suit schedule property. Taking advantage of the same defendants 1 to 4 have developed evil designs to usurp the suit property exclusively for themselves. The plaintiff demanded defendants 1 to 4 for partition in the August of 2003 and they requested to wait for a while. On enquiries made by the plaintiff he came to know the defendants 1 to 4 in collusion with D5 and D6 have created same documents in favour of the D7 and D8 vide sale deed bearing No.3994/2003, dated 13.08.2003 by creating the documents and claiming the portions of the suit property.

4.The plaintiff respectively submits that though the above mentioned sale deed has been created by the defendants in collusion with each other, possession of the property continues in joint possession of plaintiff and defendants 1 to 4. Subsequently the plaintiff made demand for partition and separate possession to defendants 1 to 4 on 07.12.2012 and 08.12.2012, defendants 1 to 4 have bluntly refused to partition the same. It is in the said circumstances that the plaintiff is left with no other remedy but to approach this Hon'ble Court seeking the relief of partition and separate possession by metes and bounds with regard to the suit schedule property.

5.The plaintiff further submits that the above mentioned sale deed dated 13.08.2003 bearing document No.3994/2003 is a sham document and brought into existence with an intention to knock away the suit schedule property in which the plaintiff has his due sharai share as per the muslim personal law applicable to the parties. The plaintiff is constrained to seek relief of declaration to declare the above mentioned sale deed as null, void and nonest in law.

4. Written statement of the D2 and D3 filed. They submitted that the grandfather Late Mir Fazal Ali was absolute owner and possessor of suit property and after his death their father Mir Wajid Ali succeeded the property and thereafter they succeeded the property.

They also admitted that the name of Mir Zafal Ali was mutated in revenue records as pattadar and possessor and his name was reflected in the revenue records as stated by plaintiff. The first defendant's name was shown in the revenue record do not confer him any exclusive title and as per muslim law the plaintiff and all the defendants are entitled for share. In that he submitted that the names of protected tenants were removed from the records and the plaintiff has been residing in USA and they denied rest of the allegations. But they specifically stated all the parties of the suit are entitled share in the property of their father. The property continued to be in joint and consideration possession of the plaintiff and D1 to

D4 they also admitted the plaintiff has demanded for partition on 07.12.2012 and 08.12.2012. The sale deed dated 13.08.2003 bearing documents No.3994/2003 was sham document got into existence with an intention to knock away property. The alienation/transfer of property would not bind of them and they also pleased to decree the suit of plaintiff and also to allow their shares.

5. The defendants 1, 4, 16 to 18 were set ex-parte to the proceedings. Defendants 5, 6, 7, 9, 10 to 15, 19 have not filed their written statements and their rights are forfeited.

6. On the basing of the plaint, written statement of D2 and D3 this court framed the following issues on 27.12.2013 for trial:-

1. Whether the plaintiff is entitled to preliminary decree for partition of suit schedule properties as prayed for?

2. Whether the plaintiff is entitled for declaration that registered sale deed 13.08.2003 bearing document No.3994/2003 is null and void?

3. To what relief?

7. In support of the platinff's case PW-1 was examined by filing his chief affidavit. PW-1 is none other than the plaintiff in the suit, through him Exs A1 to A8 are marked in support of his claim.

Ex-A1 is the CC of pahani for the year 1976-77. Ex-A2 is the CC of ROR. Ex-A3 is the CC of registered sale deed document

No.1587/1980. Ex-A4 is the CC of registered sale deed document

No.3994/2003, dt.13.08.2003. Ex-A5 is the CC of registered sale deed document No.1667/2003, dt.31.03.2003. Ex-A6 is the CC of registered sale deed document No.3089/2003, dt.10.05.2003. Ex-A7 is the CC of registered sale deed document No.3090/2003, dt.10.05.2003. Ex-A8 is the CC of final tenancy extract.

8.Issues No.1 to 3:-

The chief affidavit of PW-1 discloses that originally the property belongs to Mir Fazal Ali and same was succeeded by Mir

Wajid Ali, the father of the plaintiff and defendants and the name of the first defendant was mutated in the revenue records including kasra pahani and the names of the protected tenants were deleted and the suit schedule property was a property liable for partition among with the plaintiff and defendants. As per Exs A1 to A8 and the defendants have no right to transfer the property by creating sham documents in favour of other defendants.

9.The above evidence of PW-1 not challeged by D2 and D3 nor any other defendants. There is no dispute that first defendant is the brother of plaintiff and D2 and D3, Exs A1 and A2 shows the name of Mir Zafar Ali was pattadar of the suit survey number. The defendants 2 and 3 did not deny the rights of the plaintiff and Mir

Zafar Ali, looking after the property after their father's death. Ex-A3 is the CC of registered sale deed document No.1587/80 showing Mir

Wajid Ali is the absolulte owner and pattadar of the suit property. Exs

A4 to A7 filed to show the transfer of property to the defendants other than D1 to D4. Ex-A8 shows the names of tenants and tenancy removed from the records. Therefore the suit property holds in the name if Mir Wajid Ali is clear. Admittedly the plaintiff and defendants 1 to 4 are legal heirs to be succeeded to the estate of the Mir Wajid Ali after his death. The plaintiff and D1 to D4 are entitled for share as per muslim law prevailing. Nobody has no right to alienate the share of the others and their right cannot be defeated. Therefore I hold this issue in favour of the plaintiff that he along with D1 to D4 are entitled for share i.e., 1/5 in the estate of their father Mir Wajid Ali.

10.Issue No.2:-

No separate finding is required to be given on this issue in the absence of any other evidence for relief of cancellation of sale deed as the rights of plaintiff and D1 to D4 are involved and plaintiff is not a party to the document Ex-A3.

11.Issue No.3:-

In the result, suit is preliminarily decreed for partition of the suit schedule property into 5 equal shares by allotting 1/5th share to the plaintiff. The relief of cancellation of sale deed is refused.

Dictated to Stenographer Grade-III, transcribed by her,

corrected and pronounced by me in open court on this the 10th day of March, 2016.

JUDGE,

Family Court-cum-VIII ADJ, Mahabubnagar, FAC, II-ADJ, Mahabubnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS:- FOR DEFENDANTS:-

PW-1: Meer H. Ali None

EXHIBITS MARKED

FOR PLAINTIFFS:-

Ex-A1: CC of pahani for the year 1976-77.

Ex-A2: CC of ROR.

Ex-A3: CC of registered sale deed document No.1587/1980.

Ex-A4: CC of registered sale deed document No.3994/2003, dt.13.08.2003.

Ex-A5: CC of registered sale deed document No.1667/2003, dt.31.03.2003.

Ex-A6: CC of registered sale deed document No.3089/2003, dt.10.05.2003.

Ex-A7: CC of registered sale deed document No.3090/2003, dt.10.05.2003.

Ex-A8 is the CC of final tenancy extract.

FOR DEFENDANTS:- -Nil.

JUDGE,

Family Court-cum-VIII ADJ, Mahabubnagar, FAC, II-ADJ, Mahabubnagar.