1 O.S.NO.37 of 2014
IN THE COURT OF THE SENIOR CIVIL JUDGE, GOOTY
Present: Sri M.Hari Narayana, Senior Civil Judge, Gooty
Wednesday, this the 24th day of June, 2020
Original Suit No.37 of 2014
Between:
Kambam Prabhavathi …Plaintiff
And
1. K.Sarojamma
2. Nagalakshmi
3. Lakshmi
4. S.Anjali
5. K.Madhusudhan Guptha
6. K.Nagaraju …..Defendants
This suit came up finally on this day for virtual hearing before me in the presence of Sri A.Surya Narayana for the plaintiff and the defendants 1 to 4 set ex parte and of Sri G.Venkata Reddy , Advocate for defendant
No.5 and Sri M.Sreenivasulu, Advocate for defendant No.6 and up on perusing the material available on record and the matter having stood over for consideration till this day, this court made the following:
: J U D G M E N T :
1. The plaintiff seeks partition of the suit schedule properties, by way of preliminary decree, among her and D1 to D4 and to allot 1/5th share to each of them, by taking into consideration of good and bad qualities, and for costs.
2. The case of the plaintiff is that the plaint schedule properties belong to her paternal grand father /Narayana, that during the life time of the said Narayana, the joint family properties were partitioned and that the plaint schedule properties and some other properties were allotted to her father /K.Sreeramulu.
3. The first defendant, namely, K.Sarojamma, is the 2nd wife of her father/ Sreeramulu and that the plaintiff and defendants 2 to 4 are 2 O.S.NO.37 of 2014 daughters of Sreeramulu born through his first wife Jayamma. D.1 is not blessed with any children. As the father of the plaintiff died leaving behind his second wife/D.1 and his four daughters i.e the plaintiff and D.2 to D.4, they are entitled to have equal share in the suit schedule properties and as such the plaintiff requests to grant preliminary decree allotting 1/5th share to her in the suit schedule properties inasmuch as they are trying to alienate the same detrimental to her interest.
4. It is also stated that D.1 to D.4 are also trying to alienate the remaining suit schedule properties with a view to deprive the rights of the plaintiff and as such the plaintiff got issued legal notice to all the defendants , that the same were served on D.1, D.3, D.5 and D.6; and that
D.2 to D.4 refused to take notices.
5. It is further averred that D.1 alone has no right or title in respect of item No.1 of the suit schedule property but a sale deed was created in favour of the 5th defendant on 24.7.2008. Likewise another sale deed was created in favour of D.6 in respect of item No.2 on 27.2.2012.
Therefore, D5 and D6 would not get any right or title over the suit schedule properties. Hence it is requested to decree the suit as prayed for.
6. D.1 to D.4 remained ex parte. D.5 filed written statement denying the allegations made in the plaint. It is his case that he has no knowledge that plaintiff and D.2 to D.4 are daughters of Sreeramulu, that one Jayamma was his first wife but he only knew that D.1 is the wife of
Sreeramulu. D.1 obtained pattadar pass books from the competent authorities in respect of item No.1 (Sy.No.69-E) of Chetnepalli village, that her name was mutated in the Revenue Records and that she is in exclusive possession and enjoyment of the said property. After due inquiries he 3 O.S.NO.37 of 2014 purchased item No.1 from D.1 by paying due sale consideration and that the said sale deed is not a sham and nominal one as urged by the plaintiff.
It is further stated that after obtaining sale deed he took physical possession and enjoyment of the properties covered therein. It is specifically averred that the suit is filed by the plaintiff with active connivance and at the instance of D.1 to D.4 with a mala fide intention and to cause loss to him.
However, it is urged that the plaintiff can seek equities in respect of other properties which were not sold by D.1.
7. D.6 filed separate written statement denying the allegations made in the plaint. It is his specific case that he obtained a registered sale deed dt.27.2.2012 in respect of some portion of plot covered in Sy.No.110-A of
Chetnepalli village (item No.2) from D.1 as she acquired right over the said property pursuant to the Gift deeds executed by the father of the plaintiff in favour of D.1. It is also averred that more than twenty persons purchased house plots in item No.2 and some of them also constructed houses in the said land but those persons were not added as parties to the suit. It is also his specific case that as the suit is filed by the plaintiff at the instance and in collusion with D.1 to D.4, he sought dismissal of the suit.
8. Initially the suit was filed by the plaintiff in respect of five items I.e (1) Sy.no.26-G, (2) Sy.No.110-A, (3) Sy.No.69-E,(4) a house bearing door
No.1/96 and (5) in Sy.No.53-C. Thereafter by way of amendment, as per orders in I.A.No.157 of 2015 dt.28.12.2015, item Nos.6 and 7 were included which were purchased by D.5 under Ex.B.1/certified copy of which was exhibited as Ex.A2 as if those properties are also the ancestral joint family properties of her father.
4 O.S.NO.37 of 2014
9. Basing on the pleadings and counter pleadings, the following issues were settled.
1. Are the suit schedule properties in joint possession and enjoyment of the plaintiff and defendants?
2. Is the plaintiff entitled for partition of the suit schedule properties by way of preliminary decree as prayed for?
3. Are the sale deeds executed by D.1 in favour of D.5 and D.6 in
respect of item Nos.1 and 2 valid and binding on the plaintiff and D.2 to
D.4?
4. To what relief?
10. The plaintiff herself examined as P.W.1 and got marked six documents as Exs.A.1 to A.6. Ex.A.1 is the Regd. Will deed dt.18.4.1983 executed in favour of the father of the plaintiff by her grand father, Ex.A.2 is the Certified copy of Regd. sale deed dt.24.7.2008 allegedly executed by
D.1 in favour of D.5 (original of which was exhibited as Ex.B1); Ex.A.3 is the certified copy of Regd. sale deed dt.27.2.2012 allegedly executed by
D.1 in favour of D.6, Ex.A.4 is the Office copty of legal notice dt.01.07.2013, Ex.A.5 is the postal receipts, six in number, and Ex.A.6 is the Returned postal covers. The plaintiff also examined two more witnesses as P.Ws.2 and 3 in support of her case.
11. None were examined on behalf of defendants No.1 to 4 as they remained ex parte.
12. D.5 examined himself as D.W.1 and got exhibited a sale deed as
Ex.B1. (certified copy of which was marked as Ex.A.2). D.5 also examined two more witnesses, to prove that Ex.B.1 executed by D1 herself in his favour , as D.W.2 and D.W.3. D.6 also examined himself as D.W.4 and got exhibited four documents as Exs.B.2 to B.5. Ex.B.2 is the Certified copy of 5 O.S.NO.37 of 2014 reg.Gift deed dt.5.3.1993 executed by the father of the plaintiff /K.Sreeramulu in favour of D.1, Ex.B.3 is the Certified copy of sale deed dt.23.11.1993 executed by the father of the plaintiff /K.Sreeramulu in favour of R.Venkateswarlu; Ex.B.4 is the Certified copy of sale deed dt.23.11.1993 executed by the father of the plaintiff/ K.Sreeramulu in favour of Sunkanna
S/o Laleppa, and Ex.B.5 is the Web copy of E.C. in respect of item No.2 of the property (Ex.B.5 is marked subject to objection that it is not a certified copy).
13. Heard the learned counsel for the plaintiff and the learned counsel for
D.5 and D.6 who advanced their arguments re-iterating their respective stands. The learned counsel for the plaintiff and D.5 also filed their respective written arguments.
14. Having taken into consideration of oral and documentary evidence and also the written arguments submitted, this Court now proceeds to answer the issues framed in the suit.
15. ISSUE No.1:
Are the suit schedule properties in joint possession and enjoyment
of the plaintiff and defendants?
The case of the plaintiff is that she and D2 to D4 are daughters of Sree
Ramulu and his first wife/ Jayamma , that her father married D1 after death of her mother but that they did not begot any children.
16. It is on record that the plaintiff had shown five items of the properties in the suit schedule as item nos.1 to 5. Later, by way of amendment, item Nos.6 and 7 were included. After amendment of the plaint, by over sight, no opportunity was provided to the contesting 6 O.S.NO.37 of 2014 defendants/D5 and D6 to file additional written statement. The case of plaintiff is that all the suit schedule properties are ancestral properties of her father and as such she and D1 to D4 have equal right over it. The claim of
D.5 is that he purchased item Nos.1, 6 and 7 of the suit schedule properties under Ex.B.1 whereas D.6 purchased 234 sq. yards of plot in item No.2. In respect of item Nos.3 to 5 , defendants 5 and 6 are not making any claim. As D.1 to D.4 remained ex parte , it is held that
they are not disputing the claim of the plaintiff in respect undisputed
properties in this suit i.e., item nos.3 to 5 .
CLAIM OF DEFENDANT NO.5 IN RESPECT OF ITEM NOS.1,6 AND 7:
17. The main and foremost contention of the learned counsel for the plaintiff is that item nos.1, 6 and 7 of the suit schedule properties are also ancestral properties of late Sree Ramulu and as such the plaintiff being his daughter has equal right at par with D1 to D4. On the other hand, the learned counsel for D5 and D6 would submit that the plaintiff had not produced any document to show that the same belong to her father.
18. Now, it has to be seen whether the plaintiff proved that the said suit schedule properties are ancestral properties of her father or not. To prove the same, the plaintiff relied on Ex.A.1 will deed. A perusal of Ex.A1, it only indicates that the plaintiff bequeathed item no.3 only and there is no mention, even remotely also, about the other suit schedule properties. In this suit, none of the contesting defendants i.e D.5 and D.6 did lay any claim over item No.3 of the suit schedule properties. With regard to item nos.6 and 7, the plaintiff failed to produce any document showing that the
same were mutated in the name of her father, who died in the year
2000, at any point of time during his life time. On the other hand, a 7 O.S.NO.37 of 2014 perusal of copies of pass books annexed to Ex.A.2/ Ex.B1 sale deed indicates that item No.6 (Sy.No.51-A) is standing in the name of
Pampu Syed Dasthagiri and the land in Sy.No.47-C(item No.7) is
standing in the name of Kistappa and land in sy.No.26-G (item no.1)
of an extent of Ac.2.42 cents is standing in the name of D.1. These documents would not indicate that item Nos.6 and 7 were ever standing in the name of Sreeramulu or in the name of D.1. Hence, it is held that the plaintiff failed to prove that item nos.6 and 7 of the suit schedule properties belong to her father or her grand father.
19. The plaintiff also claimed that item No.1 is also ancestral property of her father and it was devolved upon him in the family partition. The extent of land shown in item No.1 is Ac.2.42 cents out of Ac.12.84 cents in
Sy.No.26-G of Chetnepalli village. Except pleading that item No.1 belongs to her father, no document was exhibited by the plaintiff to that effect. But,
D6 exhibited a gift deed executed by the father of the plaintiff in favour of
D1 under Ex.B2 in which it was specifically mentioned that the extent of land (75 cents) that was in his possession was gifted to D1. It means that the father of the plaintiff was in possession and enjoyment of 75 cents only in Sy.No.26-G/item No.1 as against total extent of Ac.12.84 cents on the date of execution of Ex.B2/gift deed.
20. Under Ex.B.1 sale deed, D.1 sold Ac.2.42 cents of land to D.5. Thus, the learned counsel for the plaintiff urges that even if 75 cents of land that was gifted to D.1 was excluded, the remaining extent of land is to be treated as the property of the father of the plaintiff and as such she is entitled to seek partition. This court is unable to agree with the said submission inasmuch as the plaintiff has to adduce cogent and positive evidence to show that the remaining extent of land after excluding the 8 O.S.NO.37 of 2014 property gifted under Ex.B.2 is of her father. But no such positive evidence was adduced by the plaintiff. In the absence of any documentary evidence it cannot be said that the land in Sy.No.26-G (item No.1 ) belongs to the father of the plaintiff. Therefore, the plaintiff cannot claim any right over item No.1 of the suit schedule property.
21. The plaintiff though examined P.Ws.2 and 3 to show that the suit schedule properties were inherited by her father, much importance cannot be attached to their oral testimony in the absence of any documentary evidence, particularly while dealing with the rights of the parties in respect of immovable properties. Therefore, the evidence of P.Ws.2 and 3 is not helpful to the case of the plaintiff to show that item Nos.6 and 7 were inherited by the father of the plaintiff and that they are joint family properties.
22. It is also to be noticed that the plaintiff got issued a legal notice under Ex.A.4 to D.1 to D.6 stating that D.1 to D.4 alone have no right over the joint family properties covered in the said legal notice. In Ex.A.4 legal notice items No.1 to 5 were only indicated and nothing was mentioned about item Nos.6 and 7 . As mentioned above item Nos.6 and 7 were included by way of amendment as per orders in I.A.No.157 of 2015 dt 28.12.2015. Had the plaintiff was in joint possession and enjoyment of items No.6 and 7 along with D.1 to D.4, she would have mentioned the same in the legal notice issued under Ex.A.4 dt. 1.7.2013. This factor also adds that the said items also do not belong to the father of the plaintiff.
23. For the foregoing discussion, it is held that the plaintiff failed to prove that item nos.1, 6 and 7 are ancestral properties of her father and are in joint possession and enjoyment along with D1 to D4.
9 O.S.NO.37 of 2014
CLAIM OF DEFENDANT NO.6 IN RESPECT OF ITEM NO.2:
24. Now, this Court deals with the property purchased by D6 (Item no.2).
D.6/D.W.4 purchased 234 Sq.Yards out of 3 acres of land in Sy.No.110-A.
Though it is the case of the plaintiff that the said property is also ancestral property of her father yet no document was exhibited to prove the said fact.
On the other hand, the learned counsel for D6 would submit that the father of the plaintiff executed gift deed under Ex.B.2 in favour of D1 gifting
Ac.1.50 cents of land in the item no.2/Sy.No.110-A. In Ex.B2, it was specifically mentioned that the extent of land, which was in his possession and enjoyment, was gifted to D1. In view of Ex.B2, the property that was gifted to D1 would be treated as her self acquired property. It is the specific case of D6 that he purchased 234 square yards, which is part of item No.2, from D1 under Ex.A3. It is pertinent to note that in this suit, the plaintiff did not make any mention about Ex.B2 gift deed and even she also did not question the validity of the same. Therefore, it is held that D1 has absolute right to sell the property that was gifted to her and as D6 purchased part of it, the same cannot be questioned by the plaintiff.
25. It is also brought on record by D6 that the father of the plaintiff vide
Ex.B.3 sold 75 cents of land in Sy.No.110-A on 23.11.1993 and also sold 10 cents of land in sy.No.110-A under Ex.B.4 on 29.3.1995. In addition to that
P.W.1 in her cross examination categorically admitted that item No.2 /Sy.No.110-A is located adjacent to Chetnepalli village, that in the year 2008 itself houses were constructed in and around item No.2, that she did not know whether D.1 started selling the land in item No.2 by laying house plots, that two houses were constructed in the year 2008 itself in some part of the land , that several persons constructed houses in item No.2, but she did not add the purchasers of the plots as defendants in the suit. It 10 O.S.NO.37 of 2014 is pertinent to note that Ex.B.2 gift deed was executed in favour of D.1 in the year 1993 and Exs.B.3 and B.4 were executed by the father of the plaintiff in the years 1993 and 1995. P.W.1 in her cross examination categorically admitted that her marriage was performed in the year 1998.
Thus, it is clear that even prior to the date of her marriage, plots were laid in item no.2 and some of the plots were sold to several persons. In those circumstances, the purchasers of the plots in item no.2 are also proper and necessary parties as their rights would also be affected if the same is ordered to be partitioned. As she failed to add other purchasers, who are proper and necessary parties, of plots in item no.2, the plaintiff cannot seek any claim in respect of item no.2 of the suit schedule property.
26. D.6/DW4 got exhibited Encumbrance certificate as Ex.B.5. It was marked subject to objection as the same was not a certified copy. It is a fact that Ex.B.5 is not a certified copy in terms of Section 63 of the Indian
Evidence Act. Therefore, it cannot be taken into consideration inasmuch as it has no evidentiary value. However, considering the specific admissions of
P.W.1 in her cross examination that some persons constructed houses even in the year 2008 itself and also in view of the specific admission that she did not include the other purchasers of the said plots as defendants in the suit , the plaintiff cannot seek any share in item no.2 inasmuch as it
is not in joint possession and enjoyment of the plaintiff and
defendants 1 to 4 on the date of filing of the suit.
27. In respect of item Nos.3 to 5, D.5 and D.6 have not made any claim whereas D.1 to D.4 remained ex parte. It is pertinent to note that the plaintiff failed to produce any document to show they belong to her paternal grand father and as such it could at best besaid that the same belong to her father 11 O.S.NO.37 of 2014 inasmuch as D1 to D4 are not disputing the claim of the plaintiff. Therefore,
it is held that item Nos. 3 to 5 belong to the father of the plaintiff are in
joint possession and enjoyment of the plaintiff and D.1 to D.4.
28. The learned counsel for the plaintiff would contend that D.5 did not choose to file additional written statement after adding item Nos.6 and 7 of the suit schedule properties and as such it has tobe presumed that D.5 did not dispute that item Nos.6 and 7 of the suit schedule properties are joint family properties of the plaintiff and D.1 to D.5. In this suit, after adding item Nos.6 and 7 of the suit schedule properties, due to oversight, no opportunity was provided to D.5 and D.6 to file additional written statement. Merely because D.5 and D.6 did not raise any dispute that item
Nos.6 and 7 of the suit schedule properties do not belong to the family of the plaintiff, it is not ‘ipso facto’ would entail to claim that she and D.1 to D.4 are in joint possession and enjoyment of the said items. It is settled principle of law that the plaintiff has to succeed her case on the merits of her case but not on the weakness of the case of the defendants.
29. As discussed above, the plaintiff did not even produce any document even to suggest remotely also that item Nos.6 and 7 of the suit schedule properties were ever in possession and enjoyment of her father or her grandfather at any point of time. Therefore, it is held that the plaintiff cannot take advantage of the silence on the part of D.5 and D.6. Hence the contention of the learned counsel for the plaintiff that item Nos.6 and 7 of the suit schedule properties are in joint possession and enjoyment of the plaintiff and D.1 to D.4 cannot be accepted.
12 O.S.NO.37 of 2014
30. For the foregoing discussion it is held that the plaintiff failed to prove that item Nos.1,2, 6 and 7 of the suit schedule properties either belong to her father or her grand father as on the date of filing of the suit and as such the question of those properties are in joint possession and enjoyment along with D1 to D4 does not arise. However, the plaintiff proved that she and D1 to D4 are in joint possession and enjoyment of item nos.3 to 5.
Accordingly issue No.1 is answered.
ISSUE No.3:
Are the sale deeds executed by D.1 in favour of D.5 and D.6 in
respect of item Nos.1 and 2 valid and binding on the plaintiff and D.2 to
D.4?
31. While answering issue No.1, this court categorically held that item nos.6 and 7 do not belong to the father of the plaintiff and also failed to prove that item nos.1 and 2 are in joint possession and enjoyment of the plaintiff and D1 to D4.
WHETHER EXS.B1 AND EX.A3 SALE DEEDS WERE NOT EXECUTED BY
D1:
32. The foremost contention of the learned counsel for the plaintiff is that D.1 did not execute either Ex.B.1 or Ex.A.3 and that they were obtained by playing fraud. Ex.B.1 and Ex.A.3 are registered sale deeds. It is pertinent to note that in both the sale deeds photos of D.1 were affixed and the plaintiff did not dispute that those photographs do not belong to her mother/D1. In addition to that once a document is registered, it has to be presumed, in view of Section 114 (e) of the Indian Evidence Act, that the same was duly executed by the executrix, under the principle of the official and judicial acts have been regularly performed, unless contrary is proved.
13 O.S.NO.37 of 2014
Hence, it could be said that Ex.B.1 and A.3 are executed by none other than D.1.
33. In spite of such presumption available in favour of D5, he also examined D.Ws.2 and 3 to prove that it is D1 who executed Ex.B1/Ex.A2.
D.W.2 one of the attestors of Ex.B.1 sale deed in his chief evidence affidavit categorically stated that he is one of the attestors along with one
Mahaboob, that D.1 was one of the executants along with two others, that he has seen D1 executing and signing the sale deed. In the cross examination a suggestion was put to D.W.2 that signature of D.1 was obtained in Ex.B.1 stating that a canal would be dug at Chetnepalli village and that no sale transaction was taken place on the date of execution of
Ex.B1. The above suggestion clearly indicates that it is D.1 who signed on
Ex.B1.
34. D.W.3 who is identifying witness in his chief evidence affidavit categorically stated that D.1 attended the office of the Sub Registrar,Gooty along with one Venkataramana, that she signed in the said document , that he also admitted the execution of sale deed by D1 before the Sub Registrar,
Gooty. In the cross examination, it was suggested to D.w.3 that they obtained signature of D.1 on Ex.B.1 by way of mis-representation and that she did not sell the land. The above suggestion would also infer that it is
D.1 who executed Ex.B.1 sale deed.
35. DW4/D6 in his chief evidence affidavit categorically stated that by paying sale consideration to D.1, he obtained Ex.A.3 sale deed. In the cross examination of D.W.4 it was suggested that D.1 alone has no right to sell the suit schedule property inasmuch as the plaintiff has also right over it. The above suggestion also clearly indicates that it is D.1 who 14 O.S.NO.37 of 2014 executed Ex.A.3 sale deed in favour of D.W.4. Once the execution of sale deed is proved, the burden lies on the plaintiff to show that the same was not executed by D.1 or it was obtained by playing fraud and that no consideration was passed under it. The evidence that was let in by the plaintiff do not prove that Ex.B1 and Ex.A3 were not executed by D1.
Moreover, it is the D1 who has to deny the execution of the sale deeds in question but she remained ex parte.
36. It is pertinent to note that as per Section 81 of the Registration Act, if any Registering Officer, registers a document which he knows or believes to be incorrect intending thereby to cause injury to any other person, shall be punishable. It means that if any Registering Officer registers an incorrect document knowing that the same would cause injury to any other person, the aggrieved person can lodge a complaint to the concerned registering authorities. But in this suit, it is not the case of the plaintiff that she lodged any complaint with the concerned authorities alleging that the concerned
Registrar registered the document in dispute even though D.1 did not execute the same. As observed in the preceeding paragraphs, D.1 did not dispute the execution of Exs.B.1 and A.3. Hence the contention of the learned counsel for the plaintiff that D.1 did not execute the said documents and the same were obtained by playing fraud cannot be accepted.
37. The learned counsel for the plaintiff would also urge that the sale deed was not obtained by D.5 in accordance with the provisions of the
Registration Act. The learned counsel for the plaintiff also contend that there are some irregularities in registering Ex.B.1 sale deed, as such it cannot said to be valid document. But he failed to point out the specific 15 O.S.NO.37 of 2014 irregularities. Therefore, this point is answered holding that that Ex.B1 was duly executed by D.1 in accordance with law.
WHETHER KARTHA/MANAGER OF THE FAMILY HAS RIGHT TO SELL
THE JOINT FAMILY PROPERTIES OF NOT:
38. Even if it is assumed that item Nos.1,2, 6 and 7 of the suit schedule properties are in joint possession and enjoyment of the plaintiff and D.1 to D.4 , whether the plaintiff can question the validity of the sale deeds executed by D.1 under Ex.B.1/Ex.A2 and Ex.A.3 or not. PW1 admitted that she and D2 to D4 are children of Sreeramulu and his first wife
Jayamma, that after death of her mother/Jayamma , her father married D.1 /Sarojamma and that her father did not begot any children through his second wife. P.W.1 in her cross examination also stated that her marriage was performed by her father in the year 1998 and that he died in the year 2000.
39. P.W.1 also admitted that her mother died when she was five years old and that at the time of death of her father, the marriages of D.2 to
D.4 were not performed, that D.1 looked after their welfare and that D.1 performed the marriages of D.2 to D.4 by spending money. P.W.1 also admitted that her father and her mother /D.1 eke out their livelihood from agriculture income only , that they have no other source of income and that her father used to incur debts for maintenance of family. It is also her specific admission that three years after death of her father, the marriage of D.2 was performed, that five years thereafter the marriage of
D.3 was performed and the marriage of D.4 was performed in the year 2012 by D.1 incurring marriage expenses, presenting gold and silver articles and also dowry. D1 being the mother of D2 to D4 and lives only on 16 O.S.NO.37 of 2014 agriculture income, how could it be possible to her to perform the marriages of her three daughters by spending money, presenting gold and silver ornaments and also by giving dowry. Thus, it shows that D1 incurred debts to discharge the family obligations shouldered on her and also to maintain the family.
40. P.W.2, who was examined by PW1, also admitted in her cross examination that at the time of marriages of D.2 to D.4, D1 sold some of the properties of her husband for the welfare of the family and that she did not sell any land of her husband with-a-view to cause loss to the plaintiff and others. P.W.3, who was also examined by the plaintiff , in his cross examination categorically admitted that D.1 performed the marriages of D.2 to D.4 and that the source of income for D1 is only from agriculture and that they have no other source of income. The above categorical admissions of
P.Ws.1 to 3 clearly indicate that D.1 being the head of the family performed the marriages of D2 to D4 by incurring debts and to discharge the debts she has absolute right to sell the joint family properties while
managing the affairs of the family to meet the family expenses and
that she did not alienate the properties with- a-view to cause loss to
the plaintiff and D.2 to D.4. Moreover, it is not at all the case of the
plaintiff.
41. The Hon’ble Supreme Court in the case of Sunil Kumar and
another vs. Ram Prakash and others ( AIR 1988 SC 576)
categorically held that managing member or Kartha has not only power to manage but also power to alienate the joint family property. The alienation may be either for the family necessity or for the benefit of the estate. Such alienation would bind the interest of all the undivided members of the family 17 O.S.NO.37 of 2014 whether they are adults or minors. The Honourable Privy Council in the case of Hanuman Parshad vs. Mt Babooee (1856 [6] M.I.A 393)while dealing with the powers of Managing member for aninfant heir to charge
an estate not his own is, under the Hindu law, a limited and qualified
power . It can only be exercised rightly in case of need or for the benefit
of the estate. Thus it could be said that D.1 in the capacity of the managing member or kartha of the joint family, she has absolute right to sell the properties covered under Ex.B.1 and Ex.A.3 sale deeds (item
Nos.1 and 2).
42. The learned counsel for the plaintiff would contend that there is no evidence on record to show that D.1 sold some of the suit schedule properties for the benefit of the family or for the welfare of the children inasmuch as D.1 did not come forward to state that the alienations were made for the benefit of the family. No doubt in this suit D.1 to D.4 remained ex parte. But the categorical admissions made by P.Ws.1 to 3 in their cross examination, as mentioned above, clearly indicate that D.1 alienated the properties for the welfare of the family and only to meet the family necessities and to discharge the debts incurred to perform the marriages of
D.2 to D.4. In addition to that the plaintiff did not plead and urge that D1 made alienations not for the welfare of the family. Thus, it is held that even
if item Nos.1 and 2 are joint family properties, D.1 has absolute right to
alienate the same as she was managing the affairs of the joint family and
as such the alienations made by D.1 cannot be questioned by the plaintiff.
Hence, it is held that the plaintiff can not seek partition of the properties which were alienated by D.1.
43. Hence, issue No.3 is answered holding that it is D1 who executed
Ex.A3 and Ex.B1/Ex.A2 sale deeds in favour of D.5 and D.6 in respect of
18 O.S.NO.37 of 2014
items Nos.1 and 2 and that they are valid and binding on the plaintiff and
D.2 to D.4.
ISSUE NO.2:
Is the plaintiff entitled for partition of the suit schedule properties by
way of preliminary decree as prayed for?
44. While answering issue nos.1 and 3, this court categorically held that the plaintiff cannot seek any claim in respect of item nos.1, 2, 6 and 7 of the suit schedule properties. However, in respect of items No. 3 to 5, it was held that the same are self acquired properties of the father of the plaintiff but not his ancestral properties. As per Section 8 of the Hindu Succession
Act, 1956, the property of male Hindu dying intestate shall devolve firstly upon the heirs specified in Class I of the Schedule. As D1 being wife, the plaintiff and D2 to D4 being daughters of Sreeramulu and they all being
Class I heirs, they are entitled to seek partition of the suit schedule properties equally.
Accordingly issue no.2 is answered.
ISSUE NO.4: To what relief?
45. In the result, the suit is preliminarily decreed, in part, dividing item
Nos. 3 to 5 of the suit schedule properties into five shares with metes and bounds, by taking into consideration of good and bad qualities and allotting one such share each to the plaintiff and D.1 to D.4. However, the suit is dismissed in respect of item Nos.1, 2, 6 and 7. In view of close relationship between the plaintiff and defendants each party shall bear their own costs.
Dictated to the Stenographer Grade-II, transcribed by him, corrected
and pronounced by me in open Court, this 24th day of June, 2020.
Senior Civil Judge
Gooty 19 O.S.NO.37 of 2014
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintiff Defendants
P.W.1: K.PrabhavathiD.W.1:K.Madhusudhana Guptha
P.W.2: Uma Lakshmi Narayana D.W.2: K.Madhusudhana Guptha
P.W.3: M.Bheemalinga D.W.3: S.Masthan
D.W.4: K.Nagaraju
Exhibits marked for the plaintiff
Ex.A.1:Regd. Will deed dt.18.4.1983 executed in favour of K.Sreeramulu
Ex.A.2:Certified copy of Regd. sale deed dt.24.7.2008 executed by D.1 in favour of D.5
Ex.A.3:Certified copy of Regd. sale deed dt.27.2.2012 executed by D.1 in favour of D.6
Ex.A.4:Office copty of legal notice dt.01.07.2013
Ex.A.5Postal receipts six in number
Ex.A.6:Returned postal cover sent to D.2
Exhibits marked for the Defendants
Ex.B.1:Certified copy of Ex.A.1
Ex.B.2:Certified copy of reg.Gift deed dt.5.3.1993 executed by the father of the plaintiff K.Sreeramulu in favour of D.1
Ex.B.3:Certified copy of sale deed dt.23.11.1993 executed by the father of the plaintiff K.Sreeramulu in favour of R.Venkateswarlu
Ex.B.4:Certified copy of sale deed dt.23.11.1993 executed by the father of the plaintiff K.Sreeramulu in favour of Sunkanna S/o Laleppa
Ex.B.5:Web copy of E.C. in respect of item No.2 of the property(Ex.B.5 is marked subject to objection that it is not a certified copy)
Senior Civil Judge
Gooty