SCJ, NDG OS.334/2014
IN THE COURT OF THE SENIOR CIVIL JUDGE: NANDIGAMA
Present:- KUMAR VIVEK
Senior Civil Judge
Nandigama
Monday, this the 20th day of August, 2018
O.S.No.334 of 2014
BETWEEN:
Shaik Bibi @ Phathima Bibi, W/o.Akbar Ali, Muslim, aged 45 years, R/o.Nandigama Nagar Panchayat, Nandigama Mandal, Krishna District. ...Plaintif AND 1.Shaik Hussain (Died), S/o.Mohiddin, Mulsim, aged 58 years, R/o.Moguluru Village, Kanchikacherla Mandal, Krishna District.
2.Shaik Nannemiya, S/o.Mohiddin, Mulsim, aged 62 years, R/o.Moguluru Village, Kanchikacherla Mandal, Krishna District.
3.Shaik Masthan, S/o.Mohiddin, Mulsim, aged 49 years, R/o.Moguluru Village, Kanchikacherla Mandal, Krishna District.
4.Shaik Mahaboob Subhani, S/o.Mohiddin, Mulsim, aged 52 years, R/o.Moguluru Village, Kanchikacherla Mandal, Krishna District.
5.Shaik Jairabi, W/o.Mohiddin, Mulsim, aged 87 years, R/o.Moguluru Village, Kanchikacherla Mandal, Krishna District.
6.Shaik Riyaz Ahammad, S/o.Late Shaik Hussain, Muslim, R/o.D.No.2-124, Rayalavari Street, Moguluru Village, Kanchikacherla Mandal, Krishna District.
(6th defendant added as per orders dt.14.03.2018 in IA.no.348/2017)
..Defendants
This suit coming on 06.08.2018before me for final hearing in the presence ofSri.M.Rama Reddy, Sri.P.Ramachandra Reddyand Sri.G.Venkata Ratnam, learned Advocates for the plaintif and of Sri.T.V.Markandeswra Rao and Sri.T.V.V.S.Sarma, learned Advocates for the 2nd, 4th and 6th defendants and of Sri.K.Satyanarayana and Sri.B.Bhaskara Rao, learned Advocates for the 5th defendant and having stood over for consideration, on perusing the material on record, this Court made the following :
J U D G M E N T
This is suit filed for declaration, consequential relief of permanent injunction, and cancellation of four registered sale deeds dt. 02/12/2008 as non-est on the plaintif, along with costs of the suit.
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2. The factual matrix of the case of the plaintif as set out in the plaint in brief are that late Shaik Mohiddin Saheb is the husband of the 5th defendant and father of the plaintif and the deceased-1st defendant, 2nd to 4th defendants and paternal grand-father of the 6th defendant and he was the absolute owner of the suit schedule property; that the plaintif is the 3rd daughter of the said late Shaik Mohiddin Saheb and the 5th defendant, and the plaintif has been residing along with her parents and rendered services to late Shaik Mohiddin Saheb and the 5th defendant during the life time of late Shaik Mohiddin Saheb; that since the plaintif was been looking after the welfare of her parents as such late Shaik Mohiddin Saheb had executed a registered will deed bearing document no.5/2002 dt.11.03.2002 in good state of mind bequeathing the suit schedule property and other house property in favour of the 5th defendant by giving life interest to her in the said properties and vesting the remainder in favour of the plaintif, and that the said registered will deed is the last will of late Shaik Mohiddin Saheb and the said will was attested by the deceased-1st defendant as one of the attestors; that late Shaik Mohiddin Saheb died on 16.10.2002 and after his death the suit schedule property came in the possession of the 5th defendant only for the limited purpose of enjoying the usufructs thereof; that there was some misunderstanding between the plaintif and the defendants including the deceased-1st defendant for about six years and suspecting that all the defendants including the deceased-1st defendant were doing something against the interest of the plaintif, the plaintif had enquired about the same and obtained encumbrance certificate on 12.09.2014 from the office of Sub
Registrar, Kanchikacherla and on its perusal she came to know that the 5th defendant had executed four registered sale deeds dt. 02/12/2008 in favour of the deceased-1st defendant, 2nd to 4th defendants in respect of items no.1 to 4 of the suit schedule properties without having any right to alienate the same; that the delivery of possession of items no.1 to 4 of the suit schedule 2 of 19
SCJ, NDG OS.334/2014 properties under the said four registered sale deeds is symbolic; that the said four registered sale deeds were executed by the 5th defendant in favour of the deceased-1st defendant, 2nd to 4th defendants in respect of items no.1 to 4 of the suit schedule properties that has been consolidately shown as item no.5 in the suit schedule property, and the plaintif had initially shown 4 items of properties as the suit schedule properties as she has filed the suit for cancellation of four registered sale deeds dt. 02/12/2008 covering items no.1 to 4 of the suit schedule properties; that the 5th defendant had executed the said four registered sale deeds dt. 02/12/2008 without any authority, and the execution of the said four registered sale deeds dt 02/12/2008 in favour of the deceased-1st defendant, 2nd to 4th defendants will not defeat the rights of the plaintif in respect of the suit schedule properties given to her by late
Shaik Mohiddin Saheb under the registered will deed dt.11.03.2002; that the plaintif had got issued a legal notice dt.29.09.2014 to deceased-1st defendant, 2nd to 5th defendants demanding them to cancel the said four registered sale deeds but the deceased-1st defendant, 2nd to 5th defendants in spite of receipt of said legal notice did not issue any reply nor cancelled the said four registered sale deeds dt. 02/12/2008 as per the demand of the plaintif, therefore, this suit has been filed.
3.Written statement is filed on behalf of the 2nd defendant and the same was adopted by the deceased-1st defendant, 3rdand 4th defendants by way of filing adoption memo, and the deceased-1st defendant, 2nd to 4th defendants besides denying the material averments of the plaint have admitted about the relationship between the parties interse and also the relationship of the parties with late Shaik Mohiddin Saheb as pleaded by the plaintif in her plaint and specifically pleaded that the plaintif has no right to file this suit during the life time of the 5th defendant and the suit is pre-mature suit and it is liable to be dismissed; that late Shaik Mohiddin Saheb was the absolute owner of the suit schedule property; that the 2nd to 4th defendants were not 3 of 19
SCJ, NDG OS.334/2014 looking after the welfare of the family as such late Shaik Mohiddin Saheb became angry and threatened the 2nd defendant to not to give any share in his properties but the 2nd defendant did not care about the said warning of late Shaik Mohiddin Saheb on that late Shaik Mohiddin Saheb had executed will dt.11.03.2002 in favour of the plaintif with a view of threaten the 2nd defendant; that the said will deed was executed by late Shaik Mohiddin
Saheb without his free will and the same was executed only out of anger upon his sons only with a view of threaten them; that subsequently the deceased-1st defendant, and the 2nd to 4th defendants had heard the words of late Shaik Mohiddin Saheb and they lived jointly till the death of late Shaik
Mohiddin Saheb; that the will deed dt.11.03.2002 was nominally executed by late Shaik Mohiddin Saheb without any intention to be acted upon at any point of time and the plaintif has knowledge about the same; that after the death of late Shaik Mohiddin Saheb all the members of the family have expressed their intention that his properties shall be given to the 5th defendant, who is an old lady and unable to earn, and the said arrangement was done as all the members of the family were separately at that time for eking out their livelihood, and the plaintif was residing along with her husband; that the properties of late Shaik Mohiddin Saheb were given to the 5th defendant with absolute rights with the consent of the deceased-1st defendant, the 2nd to 4th defendants and the plaintif; that the income derived from the suit schedule property was meager as such the 5th defendant was unable to maintain herself out of the said meager income and she expressed her intention to alienate the suit schedule property on that the deceased-1st defendant, and the 2nd to 4th defendants had agreed to purchase the suit schedule property as per the market value and the deceased-1st defendant, and the 2nd to 4th defendants had paid sale consideration to the 5th defendant, and in-turn the 5th defendant had executed four registered sale deeds dt. 02/12/2008 in their favour; that the plaintif had knowledge about 4 of 19
SCJ, NDG OS.334/2014 the execution of the four registered sale deeds in favour of the deceased-1st defendant, and the 2nd to 4th defendants by the 5th defendant in respect of the suit schedule property and she did not object about execution of said four registered sale deeds in their favour at that time; that according to the averments of the plaint the suit schedule property is four items of properties whereas in the will deed dt.11.03.2002 the same has been mentioned as a single plot as item no.1, and the item no.2 in the will deed dt.11.03.2002 is a house site but the plaintif has not filed any suit in respect of the said house site, and the schedule of the plaint itself shows delivery of possession of the suit schedule property to the deceased-1st defendant, and the 2nd to 4th defendants by the 5th defendant, and that the 5th defendant is not in the possession of the suit schedule property; that the plaintif is also not entitled for any relief of cancellation of four registered sale deeds dt. 02/12/2008 as she is not a party to the said documents and the suit is liable to be dismissed on the said ground; that the plaintif has filed the present suit for cancellation of the four registered sale deeds almost after lapse of six years from the date of their execution and the plaintif had knowledge about the execution of the said four registered sale deeds of their execution as such the present suit is barred by limitation; that the non-inclusion of house property referred in the will deed dt.11.03.2002 as one of the schedule properties in this suit itself shows that the will dedd dt.11.03.2002 is nominal one, and it was not intended to act upon, and prayed this Court to dismiss the suit with costs.
4.Written statement is filed on behalf of the 5th defendant pleading that through the averments in the plaint she came to know that the deceased-1st defendant, and the 2nd to 4th defendants had obtained four registered sale deeds dt.02.12.2008 in respect of the suit schedule property from her by playing fraud upon her; that she never intended to sell and execute any deed of conveyance like registered sale deed in favour of the deceased-1st 5 of 19
SCJ, NDG OS.334/2014 defendant, and the 2nd to 4th defendants in respect of the suit schedule property; that the 5th defendant is only having right of enjoyment over the suit schedule property and another house property as mentioned in the will deed dt.11.03.2002 that was executed by late Shaik Mohiddin Saheb in good state of mind in the presence of the deceased-1st defendant and the 4th defendant by bequeathing life interest in the suit schedule property and another house property in her favour, and vesting the remainder in favour of the plaintif; that the said will is the last will of late Shaik Mohiddin Saheb and the deceased-1st defendant, and the 2nd to 4th defendants had knowledge about the execution of said will deed dt.11.03.2002; that the plaintif was residing along with her and late Shaik Mohiddin Saheb and rendered services to them and took care of their welfare as such late Shaik Mohiddin Saheb had executed will deed dt.11.03.2002 in favour of the plaintif; that she was sick in the last week of November, 2008 and the first week of December, 2008 and during that period, under the pretext of providing treatment to her in
Kanchikacherla in a private hospital, the deceased-1st defendant, and the 2nd to 4th defendants took her to Kanchikacherla and brought into existence of four registered sale deeds dt.02.12.2008 by obtaining her thumb marks on the said four registered sale deeds, and subsequently got it registered before the Sub Registrar Office, kanchikacherla by playing fraud upon her; that she did not receive any sale consideration from the deceased-1st defendant, and the 2nd to 4th defendants in respect of the execution of said four registered sale deeds dt.02.12.2008; that subsequently she had lodged a police complaint before the Kanchikacherla police station against the deceased-1st defendant, and the 2nd to 4th defendants by narrating the incident and the said police complaint is pending, and that in spite of her demand the deceased-1st defendant, and the 2nd to 4th defendants did not agree for cancellation of the four registered sale deeds dt.02.12.2008.
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5.Subsequent to the death of the deceased-1st defendant, the plaint has been amended and thereby the 6th defendant has been substituted as the legal representative of the deceased-1st defendant, and thereafter the 3rd defendant has filed a formal additional written statement and the same has been adopted by the 2nd, 4th and 6th defendants by way of filing adoption memos.
6.The following issues have been settled for trial by my learned predecessor-in-office:
1) Whether the registered will deed dt.11.03.2002 is true, valid on the (sic. and) binding on the defendants?
2)Whether the registered sale deeds bearing no.4808 to 4811/2008 dt.02.12.2008 of Sub Registrar Office, Kanchikacherla are liable to be cancelled as null and vide (sic. void) as prayed for ?
3)To what relief?
7.On the side of the plaintif, the plaintif examined herself as PW.1 and got examined PW.2 to PW.6 apart from exhibiting Ex.A1 to Ex.A12 in support of her suit claim. On the side of the defendants, the 3rd defendant examined himself as DW.1 and also got examined DW.2 in rebuttal of the suit claim of the plaintif. No documentary evidence has been let in on the side of the defendants.
8.Heard arguments advanced on behalf of both sides. Written arguments has been filed on behalf of the plaintif. Perused the material on record.
9.ISSUES NO.1 AND 2 :
Since these issues are interconnected with each other as such this
Court intend to answer them together.
10.The admitted facts of the case are that late Shaik Mohiddin Saheb is the husband of the 5th defendant and father of the plaintif, the deceased-1st defendant, 2nd to 4th defendants and the paternal grand-father of the 6th 7 of 19
SCJ, NDG OS.334/2014 defendant, and he was the absolute owner of the suit schedule property.
There is also no controversy between the parties about execution of the registered will deed bearing document no.5/2002 dt.11.03.2002 by late Shaik
Mohiddin Saheb in favour of the 5th defendant and the plaintif thereby conferring life interest in the item no.5 of the suit schedule property and a house property in favour of the 5th defendant, and vesting the remainder in respect of the said properties in favour of the plaintif after the demise of the 5th defendant. Furthermore, it is also not in dispute between the parties that the 5th defendant had executed four registered sale deeds dt.02.12.2008 (Ex.A3 to Ex.A6) in respect of the items no.1 to 4 of the suit schedule properties in favour of the deceased-1st defendant, and the 2nd to 4th defendants.
11.The dispute between the parties is with respect to execution of the will deed dt.11.03.2002 by late Shaik Mohiddin Saheb out of his free will, authority of the 5th defendant to execute Ex.A3 to Ex.A6 in favour of the deceased-1st defendant, and the 2nd to 4th defendants in respect of the items no.1 to 4 of the suit schedule properties, and possession of the 5th defendant over the item no.5 of the suit schedule property by the date of filing of this suit. It is pertinent to note that item no. 5 of the suit schedule property is not a diferent item of property but it is consolidation of items no.1 to 4 of the suit schedule properties.
12.The pleading of the deceased-1st defendant, and the 2nd to 4th defendants, and the evidence of the 3rd defendant as DW.1 before this Court is that the 2nd to 4th defendants were not looking after the welfare of the family as such late Shaik Mohiddin Saheb was angry upon them and he executed Ex.A1 only with a view to threaten his sons, and subsequently the deceased-1st defendant, and the 2nd to 4th defendants have heeded to the words of late Shaik Mohiddin Saheb and they had lived jointly till the death of 8 of 19
SCJ, NDG OS.334/2014 late Shiaik Mohiddin Saheb, and that Ex.A1 was nominally executed by late
Shaik Mohiddin Saheb, and it was never intended to be acted upon at any point of time, and the said fact is known to the plaintif. There is cross- examination of the plaintif or PW.2 to PW.5 on behalf of the deceased-1st defendant, and the 2nd to 4th defendants with respect to their specific pleaded case that Ex.A1 is the outcome of anger of late Shaik Mohiddin
Saheb on his sons as they were not taking care of the welfare of the family, and that it was executed only with a view to threaten his sons. PW.6 is the scribe of Ex.A1 and he has deposed in his examination in chief before this
Court that he had scribed Ex.A1 on the instruction of late Shaik Mohiddin
Saheb. PW.6 has denied the suggestion during the course of his cross- examination that he had knowledge about some dispute between late Shaik
Mohiddin Saheb and his sons in the year 2002 and due to his anger upon them late Shaik Mohiddin Saheb had executed Ex.A1 in favour of the plaintif only with a view to threaten them. The 3rd defendant during the course of his cross-examination has stated that late Shaik Mohiddin Saheb had executed
Ex.A1 under the influence of the plaintif, and not on his own accord. This version has been introduced by the 3rd defendant during the course of his cross-examination for the first time without any foundation in the pleadings of the deceased-1st defendant, and the 2nd to 4th defendants and the same is evident from the revelation made by the 3rd defendant during the course of his cross-examination that he has not mentioned about the said fact in his written statement, hence the said developed version of the 3rd defendant that Ex.A1 was executed by late Shaik Mohiddin Saheb under the influence of the plaintif cannot be relied upon in view of settled principle of law that the evidence without pleading is devoid of any legal efect. Per contra, the deceased-1st defendant, and the 2nd to 4th defendants have not even controverted the evidence of the plaintif during the course of her cross- examination that late Shaik Mohiddin Saheb had executed Ex.A1 by vesting 9 of 19
SCJ, NDG OS.334/2014 the remainder in the item no.5 of the suit schedule property and the house property after the demise of the 5th defendant out of afection as she was rendering services to late Shaik Mohiddin Saheb and the 5th defendant. It is argued by the learned Counsel for the 2nd to 4th and 6th defendants that the plaintif has not filed the suit in respect of item no.2 of Ex.A1 i.e. house property and it probabilise the defence of the deceased-1st defendant, and the 2nd to 4th defendants that Ex.A1 was nominally executed by late Shaik
Mohiddin Saheb. The plaintif has filed this suit claiming that the 5th defendant had executed Ex.A3 to Ex.A6 in favour of the deceased-1st defendant, and the 2nd to 4th defendants without any authority in respect of items no.1 to 4 or item no.5 of the suit schedule properties and it is not the pleaded case of the plaintif as well as of the defendants that the 5th defendant had also executed any deed of conveyance like registered sale deed in respect of item no.2 property in Ex.A1 in favour of anyone. Hence there is no cause of action for the plaintif to introduce item no.2 property in
Ex.A1 as one of the items of the properties in this suit, and it cannot be a circumstance to hold that Ex.A1 was nominally executed by late Shaik
Mohiddin Saheb. Therefore, the deceased-1st defendant, and the 2nd to 4th defendants have failed to bring any circumstance before this Court to show that Ex.A1 was not executed by late Shaik Mohiddin Saheb out of afection in favour of the plaintif as she was rendering services to him and the 5th defendant, and that it was executed by late Shaik Mohiddin Saheb due to anger upon his sons who were not taking care of the family with sole objective of threatening them. Accordingly it is held that the plaintif has proved that Ex.A1 was executed by late Sahik Mohiddin Saheb out of his free will in her favour in respect of the item no.5 of the suit schedule property and also a house property by vesting the remainder in the said properties after the death of the 5th defendant, and that the deceased-1st defendant, and the 10 of 19
SCJ, NDG OS.334/2014 2nd to 4th defendants have failed to prove that Ex.A1 was executed without any intention of giving efect to its terms.
13.The plaintif states during the course of her cross-examination that the suit schedule property is the self acquired property of late Shaik Mohiddin
Saheb. The 3rd defendant also states during the course of his cross- examination that late Shaik Mohiddin Saheb was having only right in the suit schedule property. Thus, it can be said that late Sahik Mohiddin Saheb alone had right of alienation of the suit schedule property during his life time and he had authority to execute Ex.A1 in favour of the 5th defendant and the plaintif. The 3rd defendant during the course of his cross-examination also states that late Shaik Mohiddin Saheb had not cancelled Ex.A1 during his life time nor altered its terms. It follows that Ex.A1 is the last will of late Shaik
Mohiddin Saheb. In the foregoing paragraph, this Court adjudicated that
Ex.A1 was not nominally executed by late Sahik Mohiddin Saheb as alleged by the deceased-1st defendant, and the 2nd to 4th defendants and that it was executed by late Shaik Mohiddin Saheb with an intention that its terms shall be acted upon. Under Ex.A1, the 5th defendant is only having life interest in the item no.5 of the suit schedule property and the house property, and late
Shaik Mohiddin Saheb had not conferred any right of alienation of the said properties in favour of the 5th defendant under it. Therefore, the 5th defendant cannot be said to have any authority to execute Ex.A3 to Ex.A6 in respect of the items no.1 to 4 of the suit schedule properties or item no.5 of the suit schedule property in favour of the deceased-1st defendant, and the 2nd to 4th defendants. The deceased-1st defendant, and the 2nd to 4th defendants pleads that after the death of late Shaik Mohiddin Saheb all the members of the family have resolved that all the properties of late Shaik
Mohiddin Saheb will be given to the 5th defendant towards her maintenance.
In other words, the deceased-1st defendant, and the 2nd to 4th defendants in their written statement have pleaded that all the legal heirs of late Shaik 11 of 19
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Mohiddin Saheb had relinquished their rights in the properties of late Shaik
Mohiddin Saheb including items no.1 to 4 or item no.5 of the suit schedule properties in favour of the 5th defendant. The deceased-1st defendant, and the 2nd to 4th defendants have not specified that the alleged arrangement in respect of all the properties of late Shaik Mohiddin Saheb was oral or in writing. Ex.A2 indicates that the average market value of items no.1 to 4 of the suit schedule properties was Rs.25,000/- at the time of execution of
Ex.A3 to Ex.A6. Naturally the market value of items no.1 to 4 or item no.5 of the suit schedule properties at the time of execution of Ex.A1 by late Shaik
Mohiddin Saheb on 11.03.2002 would not have been less than Rs.100/-.
According to the Registration Act, 1908 any relinquishment of share in an immovable property of the value of Rs.100/- and upwards has to be made by a registered document. Oral relinquishment of share in such immovable property is thus, inadmissible in evidence. Therefore, assuming for a moment for the sake argument that there was an arrangement among the members of the family of the parties herein of giving all the properties of late Shaik
Mohiddin Saheb including items no.1 to 4 or item no.5 of the suit schedule properties to the 5th defendant, the alleged arrangement will not any confer title on the 5th defendant to enable her to execute Ex.A3 to Ex.A6 in favour of the deceased-1st defendant, and the 2nd to 4th defendants and to pass title in respect of items no.1 to 4 or item no.5 of the suit schedule properties in their favour in view of the maxim Nemo dat quod non habet literally meaning “no one gives what he doesn't have’’.
14.The plaintif is claiming that after the death of late Shaik Mohiddin
Saheb items no.1 to 4 or item no.5 of the suit schedule properties has been in the possession of the 5th defendant. On the other hand, the contention of the deceased-1st defendant, and the 2nd to 4th defendants is that after execution of Ex.A3 to Ex.A6 in their favour by the 5th defendant they are in the possession of items no.1 to 4 or item no.5 of the suit schedule properties.
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In order to substantiate their rival contentions, PW.2 to PW.4 are examined on the side of the plaintif and DW.2 is examined on the side of the contesting defendants. PW.2 states during the course of his cross- examination that there are five items in the schedule property and 5th item is in the possession of the plaintif. It is not the case of the plaintif that she is in possession of any part of the suit schedule property. PW.3 during the course of his cross-examination in one breath states that the suit schedule property is in the possession and enjoyment of the plaintif and in the next breath he states that the suit schedule property is in the possession and enjoyment of the 5th defendant. PW.4 though claims in his chief examination filed in lieu of his chief examination that his land is situated on the western side of the suit schedule property intervened by the land of one Velaga
Sambaiah and Venkatappaiah but during the course of his cross-examination, in-spite of afording an adjournment for producing the document to show that his land is situated in the vicinity of the suit schedule property, he has failed to produce any such document. PW.4 states during the course of his cross-examination that his title document are in the custody of the bank but he states that he has not obtained any letter from the bank to show that he had obtained loan by depositing his title deed. DW.2 also claims in his chief examination affidavit filed in lieu of his chief examination that his land is situated on the southern side of the suit schedule property intervened by the land of some other person as such he know that the deceased-1st defendant, and the 2nd to 4th defendants are in possession of their respective lands, but he has also not produced any documentary evidence before this Court to show that his land is situated near to the items no.1 to 4 or item no.5 of the suit schedule properties. Therefore, the evidence of PW.2 to PW.4 cannot be convincingly relied upon to conclude that the 5th defendant is in the possession of the suit schedule properties, and the evidence of DW.2 cannot be also believed to hold that the 2nd to 4th defendants and the 6th defendant 13 of 19
SCJ, NDG OS.334/2014 are in the possession of the items no.1 to 4 or item no.5 of the suit schedule properties. No best documentary evidence like copies of adangals has been produced before this Court by either of the parties to substantiate their claim of possession over items no.1 to 4 or item no.5 of the suit schedule properties according to their rival contentions. The learned Counsel for the 2nd to 4th and 6th defendants has argued that initially the plaintif has filed this suit in respect of four items of properties and after filing of the written statement by the deceased-1st defendant, and the 2nd to 4th defendants pleading that in Ex.A1 items no.1 to 4 of the suit schedule property has been mentioned as a single item of the property as item no.1 and subsequently the plaintif has amended the plaint and introduced item no.5 of the suit schedule property by consolidating the items no.1 to 4 of the suit schedule properties, and the conduct of the plaintif in initially filing this suit by showing separate four items of the properties in the schedule of the properties appended to the plaint itself shows that items no.1 to 4 or item no.5 of the suit schedule properties were not in the possession of the 5th defendant at the time of filing of this suit, and that they are in the respective possession of the deceased-1st defendant, and the 2nd to 4th defendants at the time of filing of the suit since the date of execution of Ex.A3 to Ex.A6.
The averments of the plaint as well as the chief examination affidavit of the plaintif filed in lieu of her chief examination discloses that she has initially filed this suit by specifying four separate items of the properties in the schedule of the properties appended to the plaint as Ex.A3 to Ex.A6 were executed by the 5th defendant in respect of the said properties for the purpose of avoiding confusion as she has inter-alia sought the relief of cancellation of Ex.A3 to Ex.A6 as non-est on her. The description of the properties in items no.1 to 4 of the suit schedule properties and their boundaries are identical to the schedule of the properties covered under
Ex.A3 to Ex.A6. Under such circumstance merely because the plaintif had 14 of 19
SCJ, NDG OS.334/2014 initially shown four separate items of properties in the schedule of the properties as appended to the plaint it by itself sans cogent oral or documentary evidence is not enough to probabilise that the plaintif has impliedly admitted that items no.1 to 4 or item no.5 of the suit schedule properties are in the possession of the deceased-1st defendant, and the 2nd to 4th defendants. Thus, the said argument put forth by the learned Counsel for the 2nd to 4th and 6th defendants is brushed aside. Therefore, due to dearth of reliable evidence proving the possession of the 5th defendant or the possession of the deceased-1st defendant, and the 2nd to 4th defendants at the time of filing of the suit, this Court is unable to adjudicate that the items no.1 to 4 or item no.5 of the suit schedule property is in possession of the 5th defendant or the deceased-1st defendant, and the 2nd to 4th defendants at the time of filing of this suit.
15.The learned Counsel for the 2nd to 4th and 6th defendants has argued that the plaintif has filed the instant suit during the life time of the 5th defendant as such the present suit is pre-mature one, and it is liable to be dismissed on the said ground. It is significant to note that the plaintif has filed the present suit for declaration that the remainder in the items no.1 to 4 or item no.5 of the suit schedule properties has vested in her according to the recitals of Ex.A1 after the demise of the 5th defendant. The plaintif is not claiming any in-presenti right in the suit schedule property during the life time of the 5th defendant. Hence the said argument put forth by the learned
Counsel for the 2nd to 4th and 6th defendants is not tenable.
16.It has been also argued by the learned Counsel for the 2nd to 4th and 6th defendants that the suit is barred by limitation as the same has been filed after lapse of six years from the date of execution of Ex.A3 to Ex.A6. The claim of the plaintif is that she came to know about the execution of Ex.A3 to Ex.A6 after obtaining Ex.A2 on 12.09.2014 from the office of Sub 15 of 19
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Registrar, Kanchikacherla. Nothing has been elicited by the deceased-1st defendant, and the 2nd to 4th defendants during the course of the cross- examination of the plaintif that the plaintif had knowledge about the execution of Ex.A3 to Ex.A6 at the time of their execution by the 5th defendant in favour of the deceased-1st defendant, and the 2nd to 4th defendants. Therefore, it cannot be said that the suit is barred by limitation as argued by the learned Counsel for the 2nd to 4th and 6th defendants.
17.The learned Counsel for the 2nd to 4th and 6th defendants has vehemently argued that Ex.A1 was executed by late Shaik Mohiddin Saheb contrary to the Muslim law in favour of the 5th defendant and the plaintif in respect of his properties as such Ex.A1 is not a valid will deed and in this regard placed reliance on the authority reported in AIR 1986 Bombay 357 between Yasin Imambhai Shaikh (deceased by L.Rs) vs. Hajarabi and others wherein it has been held that Bequest by a Muslim in excess of 1/3rd of the surplus of his estate after payment of funeral expenses and debts cannot take effect unless the heirs consent thereto after the death of the testator. The power of a Muslim to dispose of his property by will is limited in two ways, first, as regard the persons to whom the property may be bequeathed, and secondly, as regards the extent to which the property may be bequeathed. Thus, a Muslim cannot bequest to a heir, either in whole or in part, unless consented to by other heir or heirs, and a Muslim cannot bequest to a stranger in excess of 1/3rd of the surplus of his estate after deducting funeral expenses and debts. Thus under the Muslim law a testamentary disposition by a Muslim is binding upon the heirs only where the bequest does not exceed the legal 3rd and it is made to a person who is not a heir i.e., a stranger. In the authority reported in 2005 (3) ALD 748 between Mahaboob Masthana Begum vs. Government of Andhra
Pradesh the Hon’ble High Court of Andhra Pradesh at para no.6 held that As per Muslim Law, a bequest to an heir is not valid unless the other heirs 16 of 19
SCJ, NDG OS.334/2014 consent to the bequest after the death of the testator and a single heir may consent so as to bind his own share and a bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only, and binds his or her share. Neither inaction nor silence can be the basis of implied consent. The 3rd defendant during the course of his cross-examination states that after execution of Ex.A1 he had gone through the contents of Ex.A1 and came to know about its contents. Remaining silent even after coming to know about the execution and contents of Ex.A1 without expressing his dissent to Ex.A1 by the 3rd defendant is not a ground to draw an inference that by his passive acquiescence he had consented to the bequest made in favour of the 5th defendant and the plaintif by late Shaik Mohiddin Saheb under Ex.A1 in view of the authoritative pronouncement of the Hon’ble
Andhra Pradesh High Court in the authority referred supra. Nothing has been brought on the record of the suit by the plaintif to show that the deceased- 1st defendant and the 2nd to 4th defendants, or the 6th defendant after the death of the deceased-1st defendant, had consented, expressly or impliedly, to the bequest made by late Shaik Mohiddin Saheb in favour of the 5th defendant and in favour of the plaintif after the death of late Shaik Mohiddin
Saheb. Under such circumstance it is held that the bequest made by late
Shaik Mohiddin Saheb under Ex.A1 in respect of items no.1 to 4 or item no.5 of the suit schedule properties in favour of the 5th defendant by conferring life interest upon her, and by vesting the remainder in respect of items no.1 to 4 or item no.5 of the suit schedule property in favour of the plaintif after demise of the 5th defendant, is invalid.
18.The learned Counsel for the 2nd to 4th and 6th defendants has made final assault on the claim of the plaintif about seeking decree for cancellation of
Ex.A3 to Ex.A6 as non-est on her by arguing that the plaintif is not a party to
Ex.A3 to Ex.A6 as such she is not entitled to seek cancellation of Ex.A3 to 17 of 19
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Ex.A6. The plaintif admits during the course of her cross-examination that she is not a party to Ex.A3 to Ex.A6. The Hon’ble High Court of Andhra
Pradesh in the authorities reported in 1999 (4) ALT 496 between Mabeeba
Begum vs. Gulam Rasool and in 1999 (6) ALD 20 between Habeeba
Begum and Anr. vs. Gulam Rasool and others held that When the plaintiff is party to a registered document the plaintiff has to necessarily file a suit for cancellation of such instrument, and suit for declaration is not maintainable. It follows that when the plaintif is not a party to a registered document, the plaintif has to file suit for declaration of the said instrument as non-est, not suit for cancellation of said document. Therefore, the present suit filed for cancellation of Ex.A3 to Ex.A6 without seeking relief of declaration of Ex.A3 to Ex.A6 as non-est on the plaintif is not maintainable.
These issues are answered accordingly against the plaintif and in favour of the 2nd to 4th and 6th defendants.
19.In the result, suit is dismissed with costs.
Dictated to the Gr.I Stenographer, transcribed by him, corrected and
pronounced by me in the open Court, this the 20 th day of August, 2018.
SENIOR CIVIL JUDGE
NANDIGAMA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF: DEFENDANTS:
P.W.1: Shaik Bibi @ Phathima BibiDW.1: Shaik Mastan P.W.2: Velaga Narasimha RaoDW.2: Kannekanti Satyanarayana. P.W.3: Velaga Thirupathi Rao P.W.4: Velaga Srinadha Prasad P.W.5: Shaik Mowlabi P.W.6: Vellanki Srinivasa Rao
DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF:
Ex.A1: Will deed executed by Shaik Mohiddin in favour of the plaintif and 5th defendant, dt.11.03.2002 Ex.A2: Encumbrance certificate obtained by the plaintif dt.12.09.2014 18 of 19
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Ex.A3: Certified copy of sale deed executed by the 5th defendant in favour of the 1st defendant 4808/2008, dt.02.12.2008 Ex.A4: Certified copy of sale deed executed by the 5th defendant in favour of the 2nd defendant 4809/2008, dt.02.12.2008 Ex.A5: Certified copy of sale deed executed by the 5th defendant in favour of the 3rd defendant 4810/2008, dt.02.12.2008 Ex.A6: Certified copy of sale deed executed by the 5th defendant in favour of the 4th defendant 4811/2008, dt.02.12.2008 Ex.A7: Office copy of legal notice issued by the plaintif to the 1st to 4th defendants, dt.29.09.2014 Ex.A8: Postal acknowledgment of the 1st defendant, dt.30.09.2014 Ex.A9: Postal acknowledgment of the 3rd defendant, dt.08.10.2014 Ex.A10: Postal returned cover of the 2nd defendant, dt.30.09.2014 Ex.A11: Postal returned cover of the 4th defendant, dt.07.10.2014 Ex.A12: Postal returned cover of the 5th defendant, dt.09.10.2014.
DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS : Nil
SENIOR CIVIL JUDGE
NANDIGAMA
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