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IN THE COURT OF THE I-ADDL.SENIOR CIVIL JUDGE, (FTC) NANDYAL
Present:- Smt.P.Mangakumari, II-Additional Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
Thursday the 6th day of October, 2016
O.S.No.5 of 2008
1. Noone Laxmamma (died)
2. Chilakala Ramanamma
3. Dongupalle Saha Devi … Plaintiff.
Versus
1. Noone Anjaneyulu
2. Noone Ramulamma
3. Balija Papaiah … Defendants
O.S.No.21 of 2008
Gokaraju Ramesh Babu … Plaintiff.
Versus
1. Noone Lakshmamma (died) by her LRs
2. Chilakala Ramanamma
3. Dongupalle Sahadevi
4. Noone Ramalakshamma
5. Noone Anjaneyulu (Added as per orders in I.A.No.22/2014 dt.18.9.2014) … Defendants
These suits are coming on 24.8.2016 for final hearing before me in the presence of Sri V.Ramachandra Rao, Advocate for the plaintiff and of Sri J.Swamy Reddy, Advocate for the defendants No.1 to 3 in
O.S.No.5/2008, Sri B.Venkata Reddy & Sri K.N.B.Narasinga Rao,
Advocates for plaintiff and of Sri V.Ramachandra Rao, Advocate for the defendants No.1 to 3 and Sri J.Swamy Reddy, Advocate for the defendants No.4 & 5 in O.S.No.21/2008 and upon hearing the arguments and upon considering the material on record, till this day, this court delivered the following:-
C O M M O N J U D G M E N T
O.S.No.5/2008:
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Suit filed by the plaintiff against the defendants to (a) pass a decree declaring that the plaintiffs 2 & 3 are the absolute owners of plaint schedule properties and deliver possession of item No.1 of plaint schedule property within the time stipulated by the Court or else through process of Court and consequential permanent injunction restraining the defendants, their men, agents, assignees, legal heirs etc., from trespassing into item No.2 of plaint schedule property and interfering with the peaceful possession and enjoyment of the same by the plaintiffs with costs.
2. The brief averments of the plaint are that the 1st plaintiff is the wife of Noone Venkatanna who had four children, second plaintiff and third plaintiff and one Rathnamma who are the daughters and Noone
Venkata Subbaiah is their son. The second defendant is the wife of
Noone Venkata Subbaiah, they were blessed with two children
Sumathi and Noone Anjaneyulu and 1st defendant. The third defendant is borrower of second defendant. The 1st plaintiff gifted items 1 and 2 of plaint schedule properties to her daughters Chilakala Ramanamma and Dongupalle Saha Devi under registered Gift deed dt.16.12.2006 which was accepted and were put in possession of the same. Hence, the plaintiffs 2 & 3 are the absolute owners of items 1 & 2 of plaint schedule properties. They are cultivating item No.2 of plaint schedule property and let out item No.1 of the plaint schedule property. The second plaintiff obtained for mutation of title in the municipal office,
Nandyal for item No.1 of plaint schedule property and it was effected.
She paid tax. The 1st defendant caused R.No.240/2007 dt.4.3.2007 with false allegations. The plaintiffs caused reply in R.No.25/2007 dt.18.3.2007. The 1st defendant is not in possession of item No.1 of plaint schedule property and he is not residing in it. Except plaintiffs 2 & 3 none are having any manner of right over the said properties. The 1st defendant filed COP.No.8/2007, COP.No.25/2007, COP.No.43/2007 and COP.No.57/2007 on the file of Principal Senior Civil Judge’s Court,
Nandyal and COP.No.16/2007, COP.No.69/2007 and COP.No.92/2007 on the file of Principal Junior Civil Judge’s Court, Nandyal. The plaintiffs filed COP.No.18/2007 on the file of Principal Junior Civil Judge’s Court,
Nandyal, COP.No.11/2007 on the file of Principal Senior Civil Judge’s
Court, Nandyal and COP.No.9/2007 on the file of III-Additional District 3
Judge, Nandyal. The allegations in the notice issued by 1st defendant
spent Rs.4,00,000/- and remodeled the house property are all false and the defendants have no manner of right to alienate any item of plaint schedule properties. Any alienation by defendants do not convey better title to the claimants. The 1st defendant’s notice is silent in respect of the alleged alienation, nature of alienation and to whom it is alienated. It is also false that the 1st plaintiff executed an unregistered agreement on 16.11.2004 in favour of 1st defendant as alleged in the notice. The allegation that gift deed dt.16.12.2006 is nominal and sham is false. The defendants have no right to demand to cancel the gift deed as averred in this notice. While the facts and circumstances as stated above the defendants trespassed into item No.1 of plaint schedule properties and necked out the 1st plaintiff on 18.6.2007 at about 8.00 AM. The 2nd plaintiff who went to get grass to her she- buffaloes returned at 10.00 AM and came to know about the highhanded acts of the defendant and questioned their highhanded acts. They threatened second plaintiff to kill if she approaches them for possession of 1st item of plaint schedule properties. She went to II-
Town police station, Nandyal and gave a report, but the police did not take any action, so the second plaintiff filed complaint before Judicial
Magistrate of First Class, Nandyal and the same was forwarded to
SHO, II-Town police station for registration and investigation. They registered a complaint in Crime No.164/2007 under sections 448, 506
IPC and investigated into. The arrested the defendants and remanded them to judicial custody, later they filed charge sheet. The defendants are threatening to trespass into second item of plaint schedule properties. They made attempt to trespass into the property on 16.1.2008, they are anti-social people and supported by such persons.
So, they may trespass into second item of plaint schedule properties at any time. As such the plaintiffs are obliged to file a suit for declaration that the plaintiffs 2 & 3 are the absolute owners of plaint schedule properties and deliver possession of item No.1 of plaint schedule property within time stipulated by Court or else through process of
Court and consequently permanent injunction restraining the defendants, their men, agents, assignees, legal heirs etc., from 4 trespassing into item No.2 of plaint schedule properties. Hence, the suit.
3. Written statement filed by the 1st defendant adopted by 2nd defendant specifically denying the plaint allegations, further admitting paras 3 & 4 of plaint except the allegations in para No.4 that third defendant is borrower of 2nd defendant which is mischievous and scandalous allegation is made, just to prejudice the Court with ulterior motives. The second defendant’s character is perfect and if it is not so, the 2nd plaintiff would not have given her daughter Renuka @
Lakshmidevi in marriage to the 1st defendant. Further admitted that the plaint schedule properties were gifted to the 1st plaintiff with limited rights and vested remainder to the 1st defendant’s father
Venkata Subbaiah etc., under registered Gift deed dt.19.9.1966. The 1st plaintiff has not filed the original registered Gift deed as she is no longer owner of the suit properties. She has no pre-existing right of maintenance in the suit properties as alleged. The properties are ancestral properties of her husband in which she has no full rights.
Item No.1 of plaint schedule property was dilapidated one and item
No.2 is a land of small extent. They did not fetch any income, no one took the dilapidated item No.1 for rent fearing that it would collapse, endangering the lives. So, the 1st plaintiff requested the 1st defendant to some how reconstruct item No.1. The 1st defendant borrowed huge amounts and reconstructed the said building and is living in it. As he borrowed huge amounts the 1st plaintiff renounced her limited rights and executed an unregistered relinquishment deed on 16.11.2004, giving her limited rights and allowing the 1st defendant to enjoy the suit properties. As the 1st defendant gave up her rights to discharge the debts borrowed for reconstructing the dilapidated house, the 1st defendant sole item No.2 of plaint schedule property to one Ramesh
Babu on 3.5.2006 and out of affection towards his grand mother, the 1st plaintiff, he told her to take Rs.75,000/- and the 1st defendant asked the purchaser Ramesh Babu to keep the said amount in joint account of himself and the 1st plaintiff, as she did not take the amount immediately. Perhaps, the 1st plaintiff was ill-advised by the other plaintiffs not to draw the amount with ulterior motives. The 1st plaintiff never leased out item No.1 since three years as 1st defendant is in 5 possession of it in his own right and no one took it on rent. The
Revenue Department has no right to issue pattadar passbook and title deed and they are not binding on the 1st defendant. The alienee
G.Ramesh Babu is in possession of item No.2. The 1st plaintiff gave the original registered Gift deed dt.19.9.1966 to the said G.Ramesh Babu, saying that she renounced her limited rights. The criminal cases are foisted one against these defendants and has no relevancy to the present civil case. The registered gift deed dt.16.12.2006 in favour of plaintiffs 2 & 3 executed by defendant is illegal, invalid and not binding on 1st defendant and is null and void. The plaintiffs 2 & 3 are not the absolute owners of plaint schedule property, they are not at all cultivating item No.2 of plaint schedule property as it was already sold
before their registered gift deed. Mutation proceedings won’t confer
any title. These defendants never trespassed into the suit properties and the plaintiffs gave false complaint to strengthen their false complaint. If at all plaintiffs have got any existing title to the suit property they should have filed a civil case straight away instead of giving false complaint issuing false notices and filing caveat in the
Court. The alleged gift deed dt.16.12.2006 is sham, null and void executed on the ulterior motive to deprive the 1st defendant from his properties. The 1st plaintiff has no right to execute the said gift deed as she was not the absolute owner of suit properties, further she lost whatever rights she had, after relinquishment of limited rights under the above said agreement dt.6.11.2004. The said gift deed is not binding on the 1st defendant and no right passes under it to plaintiffs 2 & 3. The mutation has no legal effect and it is managed. The plaintiffs are not at all in possession of suit properties. If the registered Gift deed dt.16.12.2006 is true, plaintiffs 2 & 3 only should have filed the suit, but not 1st plaintiff. The recitals in it are false and circumvented to lay false claim to the suit properties. The suit properties are ancestral properties of 1st plaintiff’s husband Venkatanna. The registered gift deed dt.19.9.1966 executed is also not valid. There is no cause of action for the suit. Hence, liable to be dismissed with costs.
4. Heard both the counsels. Perused the record. Basing on the rival pleadings and documents, the following issues are settled for trial:- 6
Issues:-
1. Whether the plaintiffs are entitled for declaration as prayed for?
2. Whether plaintiffs are entitled relief of delivery of possession as prayed for?
3. Whether the plaintiffs are entitled for permanent injunction as prayed for?
4. To what relief?
O.S.No.21/2008:
Suit filed by the plaintiff against the defendants to (a) pass a decree in his favour declaring the plaintiff’s right to the plaint schedule property and for consequential permanent injunction restraining the defendants, their men, assignees etc., from entering into the plaint schedule land.
5. The brief averments of the plaint are that the plaintiff is the owner of the plaint schedule property having right, title, interest over it. He purchased the said property on 3.5.2006 for Rs.3,14,000/- under registered sale deed executed by the defendants 4 & 5 and the plaintiff has been in possession and enjoyment of it. The defendants 2 & 3 are daughters of 1st defendant, defendant No.4 is the daughter-in- law of 1st defendant, 5th defendant is her grandson. On 16.12.2006 the 1st defendant executed a registered Gift deed in favour of her daughters 2 & 3 out of love and affection towards “Pasupu Kumkuma” in respect of the plaint schedule property and gave possession of it to the donees. As defendants 2 & 3 are claiming right under the said gift deed. The plaintiff has taken a certified copy of it and gone through its contents. The recital of the gift deed is the husband of 1st defendant by name Noone Venkatanna gifted two items of property to the 1st defendant and her son by name Venkata Subbaiah who is no other than the husband of 4th defendant and father of 5th defendant out of love and affection and that the 1st defendant who enjoy the properties with limited rights only without any power of alienation and after her life time the properties should vest in their son Venkata Subbaiah and there would be born male children. So, the 1st defendant’s husband gave the gifted property with limited rights to the 1st defendant and created vested remainder in her son Venkata Subbaiah who is the husband of 4th defendant and father of 5th defendant. Since the 1st 7 defendant is the son of Venkata Subbaiah died, the vested remainder devolved upon her grandson, the 5th defendant who is the only male member in the family of “Noone Venkatanna”. Item No.1 in the gift deed dt.19.9.1966 was a dilapidated house and as there is no income from the gifted items, the 1st defendant had, it seems, relinquished her limited estate and requested the 5th defendant to reconstruct the dilapidated house. So, the 5th defendant borrowed money and reconstructed the house. The 4th defendant helped him by selling her
Stridanam jewellery. Ultimately the 5th defendant had to sell the plaint schedule property and at plaintiff’s request, the 4th defendant also joined in the execution of the registered sale deed. The 1st defendant is fully aware of the sale and she gave her consent of the sale. She and 5th defendant handed over the original Gift deed dt.19.9.1966 to the plaintiff in token of her relinquishment over gift properties. The 4th and 5th defendants out of love and affection in view of gracious act of the 1st defendant, have deposited Rs.70,000/- on 3.5.2006 out of sale proceeds in the joint account of 4th defendant and the plaintiff. Since the 1st defendant failed to receive the said amount at the instigation of her daughters, defendants 2 & 3 the amount was deposited in joint names of plaintiff and 4th defendant. Long after the plaintiff has purchased the suit land which the 1st defendant is fully aware of it she executed a registered gift deed with ulterior and malicious motives in favour of defendants 2 and 3 on 16.12.2006 with limited rights out of love and affection and towards Pasupukumkuma. The 1st defendant’s having limited rights cannot claim full and absolute rights, hence execution of gift deed in favour of defendants 2 & 3 by 1st defendant is null and void. The plaintiff is still enjoying the plaint schedule property.
The defendants 4 & 5 gave original gift deed dt.19.9.1966 to the plaintiff on 3.5.2006 when he purchased the suit land. The 1st defendant handed over the original gift deed to the 5th defendant in token of relinquishing her rights in respect of the properties contained in the gift deed to enable defendants 4 & 5 to construct the dilapidated house. While so, the defendants 1 to 3 are making hectic efforts to dispossess the plaintiff from plaint schedule properties they are trying to enter into the suit land forcibly on the pretext that they have sought for temporary injunction orders in I.A.No.19/2008 in O.S.No.5/2008 8 on the file of this Court. Purposely, the plaintiff was not added as a party in that suit. O.S.No.5/2008 is a collusive, false, frivolous and vexatious one filed with ulterior motives, with a view to make wrongful gain and causing irreparable loss and injury to the plaintiff. Hence, the plaintiff is constrained to file a suit for declaration of his right over the plaint schedule property and consequential permanent injunction restraining the defendants, their men from entering into the plaint schedule land.
6. Written statement filed by the defendants 1 to 3 specifically denying the plaint allegations, further contending that Noone
Venkatanna and 1st defendant are husband and wife who had four issues, Ramanamma (2nd defendant), Noone Venkata Subbaiah, Saha
Devi (3rd defendant), Rathnamma. Noone Venkata Subbaiah’s wife is
Ramalaxmamma @ Ramulamma (4th defendant). They had two issues
Sumathi and Noone Anjaneyulu (5th defendant). Balija Papaiah is paramour of 4th defendant. Noone Venkatanna gifted the plaint schedule property and other properties under registered Gift deed dt.19.9.1966 to 1st defendant with limited rights and vested rights in favour of Noone Venkata Subbaiah and to the male issues to be born to the 1st defendant and delivered possession to 1st defendant. So, she entered into possession of the properties and has been in possession and enjoyment of the same. She has no other male issues except
Noone Venkata Subbaiah. She has pre-existing rights of maintenance over the plaint schedule property and other properties. The registered gift deed dt.19.9.1966 executed by Noone Venkatanna in favour of 1st defendant, though prescribed a restricted estate by limited rights in the plaint schedule properties and other properties to her. The said rights are enlarged as absolute one by virtue of Hindu Succession Act.
So, the 1st defendant is the absolute owner of the plaint schedule properties and other properties. The 1st defendant demolished the old house got to her under gift deed and constructed a new house in the same place. She let out the same. She personally cultivated the plaint schedule property and leased it out since three years. The revenue department also issued pattadar passbook and title deed after due enquiry in respect of plaint schedule property to 1st defendant. Thus she has been enjoying the plaint schedule property as of absolute 9 owner. The 1st defendant’s husband Noone Venkatanna died about 20 years ago, their son Noone Venkata Subbaiah died, his wife
Ramalakshmama @ Ramulamma (4th defendant) developed illicit relation with Papaiah and has been living with him. She secured employment as attender in Veterinary department as compassionate employment since her husband died during course of service. The second defendant’s marriage was performed with Chilakala Nadipi
Hussainaiah. The daughter of Chilakala Nadipi Hussainaiah and
Ramanamma by name Renuka @ Laxmi Devi was given in marriage to the son of Noone Venkata Subbaiah and Ramalaxmamma @
Ramulamma (4th defendant) by name Anjaneyulu (5th defendant). She died in the house of Ramalaxmamma @ Ramulamma and Anjaneyulu.
A criminal case in Cr.No.33/2005 U/sec.304B r/w 34 of Indian Penal
Code was registered by SHO of Mahanandi police station against
Noone Anjaneyulu, Noone Rama Laxmamma and Papaiah and numbered as Sessions Case No.227/2006. The 1st defendant gifted the plaint schedule property and other property to her daughters Chilakala
Ramanamma and Dongupalle Saha Devi i.e., defendants 2 and 3 under registered gift deed dt.16.12.2006, they accepted the gift, they entered into possession of the property, so the defendants 2 & 3 are the absolute owners of plaint schedule property and other properties.
They are cultivating by letting out the house. The second defendant is obtained mutation of title in the municipal office, Nandyal for the house property and it was effected. She paid tax. Thus they are in possession of plaint schedule property and house property. The 5th defendant caused R.N.No.240/2007 dt.4.3.2007 with false allegations.
The defendants 1 to 3 caused reply notice in R.N.No.25/07 dt.18.3.2007 with facts. The 5th defendant is not in possession of house property and is not residing in it. Except defendants 2 and 3 nobody will have any right in the said properties. The 5th defendant filed C.O.P.No.8/2007, 25/2007, 43/2007 and 57/2007 on the file of
Principal Senior Civil Judge’s Court, Nandyal and COP.No.16/2007,
69/2007 and 92/2007 on the file of Principal Junior Civil Judge’s Court,
Nandyal with all false allegations. The defendants 1 to 3 filed
COP.No.18/2007 on the file of Principal Junior Civil Judge’s Court,
Nandyal, COP.No.11/2007 on the file of Principal Senior Civil Judge’s 10
Court, Nandyal and COP.No.9/2007 on the file of III-Addl.District
Judge, Kurnool at Nandyal. The defendants 4 and 5 and another
trespassed into house property and necked out 1st defendant on 18.6.2007 at about 8 A.M. The 2nd defendant who went to get grass to her she-buffaloes returned back at about 10 AM and came to know about the highhanded acts of the defendants 4 & 5 and another, went to them and questioned their highhanded acts, they threatened second defendant to kill if she purchases them for possession of the house.
She went to II-Town police station, Nandyal and made a report, but the police did not take any action. So, the 2nd defendant filed a complaint before Judicial First Class Magistrate, Nandyal which was forwarded to the SHO, for registration, investigation and report. They registered the complaint as Cr.No.164/2007 U/sec.448 and 506 IPC.
After due investigation they arrested the defendants 4 & 5 and another and remanded them to judicial custody. The defendants 4 & 5 and another threatened to trespass into the plaint schedule property. They made attempt to trespass into the property on 16.1.2008. They are anti-social supported by such person. So they may trespass into plaint schedule property at any time. As such defendants 1 to 3 filed
O.S.No.5/2008 and I.A.No.19/2008 for grant of temporary injunction
restraining the defendants 4 & 5 and another, their men, agents, assignees, legal heirs etc., from trespassing into the plaint schedule property and interfering with peaceful possession and enjoyment of the same by defendants 1 to 3. The registered sale deed dt.3.5.2006 is void and it is nonest in law, it does not convey any title in favour of plaintiff, the plaintiff is claiming rights through defendants 4 & 5. The
Court has granted injunction order against defendants 4 & 5, as such plaintiff cannot seek any injunction against defendants 1 to 3 in favour of whom injunction was granted against defendants 4 & 5 and plaintiff.
The plaintiff suppressed several facts got fabricated records behind the back of defendants 1 to 3. The plaintiff came to Court with unclean hands, hence they are not entitled for equitable relief of injunction against these defendants. There is no cause of action to the suit.
Hence, the suit is liable to be dismissed with costs.
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7. Defendants 4 & 5 filed written statement specifically denying the plaint allegations admitting the contentions raised in para No.3 & 4 of plaint with regard to the ownership and genealogy. Further contending that these defendants being owners of plaint schedule property sold it to plaintiff on 3.5.2006 for valuable consideration of Rs.3,14,000/- to discharge the debts borrowed for construction of the old dilapidated house and gave immediate possession of the plaint schedule land to the plaintiff. The plaintiff is in unhindered possession and enjoyment of the same with effect from 3.5.2006 to till date. The construction of the dilapidated house was done by these defendants at the instance of 1st defendant who gave up her limited rights in the registered Settlement deed dt.19.9.1966 executed by Noone Venkatanna in favour of 1st defendant and her predeceased son Venkata Subbaiah who is no other than the father of 5th defendant. The 1st defendant relinquished her limited rights under an agreement dt.16.11.2004 since the 1st defendant has no income fetching properties covered in the registered
Settlement deed executed by her husband. The defendants 4 & 5 borrowed and reconstructed the old house at the instance of 1st defendant. The 1st defendant and defendants 2 & 3 are fully aware of all these facts and with the consent of 1st defendant only defendants 4 & 5 sold the plaint schedule property to the plaintiff to discharge the debts and the plaintiff is the absolute owner having right, title, interest and possession over the suit schedule property. The 4th defendant helped 5th defendant by selling her stridhana jewellery. Ultimately the 5th defendant had to sell the plaint schedule property and plaintiff request the 4th defendant also joined in execution of the registered sale deed in favour of plaintiff on 3.5.2006. The 1st defendant gave her consent to the sale and she handed over the original registered settlement deed in token of her relinquishment over the gifted properties. These defendants out of love and affection in view of gracious act of 1st defendant in allowing construction of dilapidated house and sale of plaint schedule property have deposited Rs.70,000/- on 3.5.2006 i.e., on the date of execution of the sale deed in favour of the plaintiff out of sale proceeds in the joint account of 4th defendant and the plaintiff, since the 1st defendant failed to receive the said amount at the instigation of her daughter (D2 & D3). The 1st defendant 12 has not joined in the execution of the sale deed in favour of the plaintiff at the instigation of defendants 2 & 3. The defendants 4 & 5 had deposited the aforesaid amount and executed the registered sale deed in favour of the plaintiff with the knowledge of the defendants 1 to 3. The 1st defendant with malafide intention got executed registered gift deed in favour of defendants 2 & 3 on 16.12.2006 with regard to the suit land and a house which she got the same under registered gift deed dt.19.9.1966 with limited rights enlarged into full and absolute estate and that immediate possession was given to the defendants 2 & 3 are all false, contrary to truth and untenable in the eye of law. Since the plaint schedule property was already conveyed to the plaintiff long prior to the alleged registered gift deed in favour of defendants 2 & 3 and gave possession of the same that too with the knowledge of defendants 1 to 3. The alleged donees (defendants 2 & 3) cannot get any semblem of right under a null and void document. In fact, the 1st defendant had instituted a suit in O.S.No.5/2008 on the file of this
Court wherein the plaintiff was not added as a party to the suit. The plaintiff is a bonafide purchaser for valuable consideration that too with the knowledge of the defendants 1 to 3. The defendants 1 to 3 cannot claim against the plaintiff on the ground that the 1st defendant had already relinquished her rights in the year 2004 by virtue of an agreement dt.16.11.2004. As far as the possession and enjoyment of the plaintiff eversince the date of execution of registered sale deed dt.3.5.2006 these are not denying. But the plaintiff has unnecessarily instituted the suit against these defendants. Hence, the suit is liable to be dismissed against these defendants and these defendants are not at all liable for costs and consequences thereon. There is no cause of action against these defendants. Hence, prayed to dismiss the suit against these defendants and to grant a decree against defendants 1 to 3.
8. Heard both the counsels. Perused the record. Basing on the rival pleadings and documents, the following issues are settled for trial:-
Issues:-
1. Whether the plaintiff is entitled to declaration as prayed for?
2. Whether the plaintiff is entitled for permanent injunction as prayed for?
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3. To what relief?
9. As per the orders in I.A.No.360/2008 the suit in O.S.No.21/2008 was clubbed with O.S.No.5/2008 and common evidence was recorded in O.S.No.5/2008 which is a comprehensive suit.
10. To substantiate the case of the plaintiff, the 2nd plaintiff in
O.S.No.5/2008 was examined as PW.1 and chief affidavits of PWs.2 &
3 filed, but they did not turn up for cross-examination, hence their evidence was eschewed and also examined PWs.4 to 6 and got marked
Exs.A1 to A23. The 2nd defendant was examined as DW.1 and also examined DWs.2 to 5 on their side and got marked Exs.B1 to B17.
12. Heard the arguments on both side.
13. Issue No.1 in O.S.No.5/2008 : All the witnesses examined on plaintiff’s side filed their chief affidavits in support of the plea of the plaintiffs and witnesses examined on defendants side filed their chief affidavits in support of the defence plea. PW.1 who is the plaintiff in
O.S.No.5/2008 deposed in her that her father died about 20 years
back, during his life time he sold Ac.0.03 cents and Ac.0.01 cent of vacant site. She denied the suggestion that the property i.e., Ac.0.03 cents and Ac.0.01 cent vacant site are the ancestral property of their father. She also admitted with regard to the gift deed executed by her father giving limited rights in favour of her mother and vested remainder rights to her brother and to be born male issues to her mother. Her brother is the only male issue to her parents. She admitted that her father sold four items i.e., two items of plaint schedule property and toher AC.0.03 cents and Ac.0.01 cent of the gift deed. She further deposed that her father himself sold away Ac.0.03 cents and Ac.0.01 cent during his life time after execution of gift deed and she admitted that the said Ac.0.01 cent is situated on the right side of the house adjacent to item No.1 of the plaint schedule property. She has sold the said Ac.0.01 cent she has not filed the sale deed as the said Ac.0.01 cent is not subject matter of present suit. Her mother has renovated item No.1 of plaint schedule property about three years back. But she did not obtained any municipal plan for the 14 said renovation and that her mother spent about Rs.2,00,000/- for the said renovation. She denied the suggestion that the 1st plaintiff has no money for incurring the expenditure of construction and further deposed that her mother met the expenditure of the constructions.
She further deposed that her mother had been cultivating about three acres on lease hold rights besides cultivating item No.2 of the plaint schedule property. She used to get 50 to 60 bags of paddy and her mother was also getting Rs.8,000/- to Rs.9,000/- per month on milk business. She deposed that for the last two years her mother is not cultivating due to her ill-health. She denied the suggestion that defendants 1 & 2 sold away item No.2 of the plaint schedule property to the plaintiff in O.S.No.21/2008 with the permission of the 1st plaintiff for discharging the debts contacted to renovate item No.1 of the plaint schedule property. She do not know defendants 1 & 2 deposited Rs.70,000/- in the name of her mother (1st plaintiff in
O.S.No.5/2008) on the day of execution of sale deed with regard to
item No.2 of the plaint schedule property in favour of plaintiff in
O.S.No.21/2008. She denied the suggestion that Gift deed/Ex.A4 was
created seven months after the relinquishment by the 1st plaintiff in
O.S.No.5/2008 and executed sale deed in favour of the plaintiff in
O.S.No.21/2008. She further deposed that they have no knowledge
about the sale deed by the date of execution of Ex.A4. She admitted that Ex.B1 is the original of Ex.A1 and also admitted that there is no mentioning in Ex.B1 that the said property was given for maintenance of her mother. She denied the suggestion that her mother agreed to sell item No.2 of plaint schedule property and made the plaintiff in
O.S.No.21/2008 to deposit Rs.70,000/- in her name and the
defendants 1 & 2 executed sale deed with the consent of her mother i.e., the 1st plaintiff in O.S.No.5/2008.
14. PWs.2 & 3 filed their chief affidavits but they did not turn up for cross-examination, hence their evidence was eschewed.
15. According to PW.4 he is alleged to be a watchman to the agricultural lands for the past eight years. In his cross-examination he deposed that he is residing in a rented house at Gudipatigadda,
Nandyal. He is working as watchman for the past eight years, one 15
Kalam is head watchman of agricultural lands at Nandyal and is alive.
He gives directions to them with regard to their work. He used to obtain signatures of some of agriculturists to prove his work as a watchman. He has not obtained the signatures of Noone Lakshmamma (plaintiff in O.S.No.5/2008) in the said book. He do not know the survey number, but the extent is AC.0.18 cents. He cannot say the land owners’ name who leased out the lands to first plaintiff. About four years back first plaintiff in O.S.No.21/2008 demolished her house and constructed a new house. He do not know who are residing in the said house at present.
PW.5 who is the first attestor of Ex.A4. In his cross-examination he deposed that he is resident of Boyarevula village, Velgodu mandal and he is agriculturist. He admitted that he has not received witness summons. The third plaintiff brought her today to the Court. He attested Ex.A4 about three years back at request of third plaintiff. Two items were given as gift under Ex.A4 by the first plaintiff to plaintiffs 2 & 3. The said two items are houses and Ac.0.18 cents of agricultural land. He do not know whether any encumbrances are there in the property covered under Ex.A4 and he do not know whether 1st plaintiff had given property to her son and daughter-in-law about eight months prior to Ex.A4. The plaintiffs 2 & 3 are in possession and enjoyment of the plaint schedule property.
PW.6 is the scribe of Ex.A4 deposed in his cross-examination that the 1st plaintiff gave instructions to him to scribe Ex.A4 as she gifted house property and agricultural land to an extent of Ac.0.18 cents under Ex.A4. He scribed Ex.A4 on 16.12.2006 at 9.00 AM upto 11.00 AM and read over Ex.A4 to the parties. The 1st plaintiff affixed her left hand thumb impression on all pages in his presence and in the presence of donees and attestors. One M.Kristopher and Abdull attested Ex.A4 and the 1st plaintiff submitted Ex.A4 for registration in his presence to the Sub-Registrar who enquired at the time of registration. The registration process was completed between 11.00 and 12.00 Noon on 16.12.2006. The stamp paper of Ex.A4 was purchased on 15.12.2006 and the document was scribed on 16.12.2006. In his cross-examination he deposed that he do not have 16 any licence to scribe documents and there is no need to obtain any licence for scribing documents such as Ex.A4. He admitted that the 1st plaintiff is an illiterate and the donees are also not signatories they are illiterates. He did not verify any encumbrance certificate in respect of properties prior to scribing Ex.A4. Further deposed that they showed link document. He has no legal knowledge and he used to scribe documents upon the instructions of the parties. He do not know whether the daughter-in-law and grandson of the first plaintiff has already alienated the item No.2 by the date of Ex.A4. He has no personal knowledge about the property covered under Ex.A4 the executants informed him that she has demolished the old house and reconstructed the new house about two years back. He do not know whether the executants has no right to execute Ex.A4. He further deposed that as she showed the link document which was executed by her husband in her favour and expressed her intention to gift away the property to her daughters by presenting the link document. The first plaintiff informed that she got the said property from her husband through the link document towards her maintenance and she wanted to gift the said property to her daughters. But he did not go through the recitals of the link documents. He further deposed that he do not know whether AC.0.18 cents of agricultural lands in Ex.A4 was already sold to one Ramesh Babu by the time of execution of Ex.A4. He do not know whether one Ramesh Babu has been in possession of the above said property from the date of purchase.
The second defendant in O.S.No.5/2008 and 4th defendant in
O.S.No.21/2008 was examined as DW.1, she deposed in her cross-
examination admitted the relationship of the plaintiffs and the deceased Noone Venkatanna. She deposed that her husband Noone
Venkata Subbaiah died about 25 years ago and admitted that Noone
Venkatanna who is her father-in-law husband of 1st plaintiff purchased item No.1 of plaint schedule property under Ex.B2. She also admitted that her father-in-law executed registered Gift deed dt.19.9.1996 in favour of her mother-in-law and her husband who was minor by then.
He gifted the plaint schedule properties and Ac.0.03 cents of rick-yard.
She admitted that her father-in-law executed said gift deed with limited rights in favour of her mother-in-law to enjoy the plaint 17 schedule property till her demise and vested interest to her husband and the male children born to her mother-in-law. She admitted that her husband Venkata Subbaiah died during life time of her mother-in- law and they are claiming the rights over the plaint schedule property on the foot of the original gift deed (Ex.A1/B1). Her mother-in-law died during pendency of the suit. DW.1 contended that her mother-in- law relinquished her limited rights over the plaint schedule property under relinquishment deed, she has not filed the said relinquishment into court. Her father-in-law died 18 years prior to the death of her mother-in-law. She admitted that her mother-in-law got maintenance rights over the properties of her father-in-law and she is leading life on the income of the plaint schedule properties. She denied the suggestion that the limited rights under Ex.A1 to her mother-in-law over the plaint schedule properties were enlarged as absolute rights since she got maintenance rights over the said properties. She admitted that neither her husband nor herself are having any manner of right in plaint schedule properties during the life time of their mother-in-law. She admitted that Rs.75,000/- was deposited in her name and in the name of G.Ramesh Babu in conection with the sale deed dt.3.5.2006. She identified her photo in Ex.A2, A3 and also admitted that revenue department issued Ex.A2, A3 in respect of item
No.2 of plaint schedule property in favour of her mother-in-law. She has not filed any appeal against issuing Exs.A2, A3 in favour of her mother-in-law. She deposed that even to that day the property taxes are being paid in the name of her father-in-law by name Noone
Venkatana in respect of item No.1 of plaint schedule property. She cause legal notice to the Nandyal Municipality not to mutate in the name of plaintiffs 2 & 3 in respect of item No.1 of schedule property.
She do not know whether Ex.A22 proceedings were issued by Nandyal
Municipality mutating the names of the plaintiffs 2 & 3 in respect of item No.1 of schedule property. She admitted that she filed number of caveat original petitions in Court. She further deposed that about 7 to 8 years back her mother-in-law had given the said property to them.
But she do not know whether Ex.A23 endorsement of Municipality in respect of water tax of water tap of item No.1 of schedule property was issued. She further deposed that she is paying the water tax. She 18 admitted that her claim over the plaint schedule properties is based on
Ex.A1, the same was pleaded in all her caveat petitions and notices.
She also admitted that they are admitting Ex.A1 document and they have pleaded in the written statement and chief affidavit that Ex.A1 is not a valid document. As per their case after the demise of her mother-in-law i.e., the 1st plaintiff, her husband gets rights and only after the demise of her husband she and her son Anjaneyulu got rights over the plaint schedule properties. She admitted that her husband died prior to the death of her mother-in-law and without getting rights over the plaint schedule property. Her mother-in-law conveyed the said property in favour of her son about 7 or 8 years ago and there was a mutation in favour of herself and her son, immediate after conveying the said property to them about 7 or 8 years ago. Her mother-in-law conveyed the property in their favour without any consideration and admitted that since her husband died without getting any right over the plaint schedule properties her mother-in-law got absolute rights over the plaint schedule properties which she got conveyed in their favour. She deposed that she had filed the document of title under which her mother-in-law conveyed the plaint schedule properties in their favour. She did not obtain permission from Nandyal
Municipality to construct house i.e., item No.1 and further deposed that the old house was totally demolished and from foundation they constructed the new house. She availed house loan from the State
Bank of India main branch Nandyal and also borrowed amounts from outside. She discharged the entire housing loan to the bank and she admitted that she has not filed any proof that she availed housing loan from the bank and discharged the same. Three or four years after getting conveyed the plaint schedule property from her mother-in-law in their favour she sold item No.2 of plaint schedule property to one
Gokaraju Ramesh Babu. At first she executed agreement of sale in favour of Gokaraju Sivasankar Reddy. She admitted that the sale agreement contains the recital that her mothr-in-law N.Lakshmamma and her son and herself would execute registered sale deed either in favour of G.Sivasankar Reddy or in favour of persons on his order. As
G.Sivasankar Reddy insisted to have the sale deed even from her mother-in-law they agreed in the sale agreement that the sale deed 19 would be executed by her mother-in-law also, though her mother-in- law conveyed the plaint schedule property in their favour about 7 or 8 years ago. She admitted that she along with her son had taken amounts under five part payment endorsements towards the consideration of the said agreement and that they executed sale deed dt.3.5.2006 in favour of G.Ramesh Babu in respect of item No.2 of plaint schedule property. She admitted that there is no mention of their source of title from her mother-in-law in the sale agreement and also in the sale deed dt.3.5.2006. She do not know whether her father-in-law sold away AC.0.03 cents and Ac.0.01 cent properties shown in Ex.A1. She filed four promissory notes i.e., Ex.B4, but she do not remember the creditors names and the dates of the promissory notes and the date of discharge under the said promissory notes. She paid Rs.2,30,000/- to second plaintiff and others for getting compromise a criminal case against herself and her son. The writings in Ex.B7 are of his brother Yellaiah. She admitted that in Ex.B7 her particulars were not mentioned and further deposed that she got
Ex.B7 written from various persons and about five or six persons wrote continuously at one stretch at her instance. She admitted that in Ex.B8 there is no name mentioned but it belongs to her. She has not filed electricity bills except payment receipts. Herself and Gokaraju Ramesh
Babu deposited Rs.75,000/- in the name of her mother-in-law when they sold item No.2 to Gokaraju Ramesh Babu and the said amount was deposited in the name of 1st plaintiff out of generosity, but her mother-in-law did not receive it, it is still in bank. She admitted that there is a criminal case pending against her and her son that they have trespassed into item No.1 of schedule property vide
Cr.No.164/2007 of II-Town P.S. Nandyal. The criminal case was filed by the second plaintiff and admitted that subsequent to the above crimi9nal case the present suit is filed. She denied the suggestion that she forcibly trespassed into item No.1 of plaint schedule property which was in possession of the plaintiffs. She admitted that with regard to item No.2 of plaint schedule property injunction order was passed in favour of plaintiffs and further deposed that item No.1 is in her possession, item No.2 is in possession of Gokaraju Ramesh Babu.
20
DW.2 who is a third party to the suit the Court while recording the evidence of DW.2 made it observations that the witness could not answer the question whether he can name the plaintiffs he replied that they are sisters of husband of Ramulamma. In his cross-examination he deposed that suit is filed for the property i.e., house and Ac.0.25 cents of land. He do not know the survey number of the land covered under item No.2 and the old number of the schedule property is 104.
The boundaries of item No.1 are rastha on east, north and south towards west Kanala Chinnakka’s house. He do not know the boundaries of item No.2. DW.1 is related to him as sister. He worked as Senior Assistant in Veterinary Department. Himself and DW.1 together worked in one office at Frozen Cement Bank at Nandyal for about two years. He was elected as Municipal Councilor for the year 2005-2011 of Nandyal Municipality. But he was not working as a
Municipal Councilor during the construction of item No.1 of schedule property by DW.1. He also constructed houses and shops at Tekke,
Nandyal. He did not advice DW.1 for obtaining municipal permission for construction of her building. DW.1 has not taken loan from any bank, but she availed loan from private persons apart from GPF,
APGLI. He was also present when DW.1 availed loans from private persons. He did not attest as a witness in those documents i.e., promissory notes. He got drafted agreement in between DW.1 and mason in respect of construction of item No.1 of schedule property. He also attested as a witness in the said agreement, wages are being distributed through him through labour i.e., Mason, Carpenters and used to obtain receipts from them. He used to pay even to the persons who brought bricks, sand and used to obtain receipts from them during construction of item No.1 of schedule property. He himself prepared account in small note book (Ex.B7) maintained by DW.1. He was not present at the time of execution of sale deed in respect of item No.2 of schedule property. He did not witness any of the documents pertaining to the plaint schedule properties. He admitted that as he has not seen the documents of schedule properties. He do not know who is having title over the said property. He know the fact that a criminal case was lodged against the defendants that they forcibly trespassed into the item No.1 of schedule property. He know 21 that injunction was passed by the Court against the defendants with regard to the item No.2 of schedule property and also admitted that item No.2 is in possession of persons who filed the suit and further added that the persons related to DW.1 are in possession of item No.2 of schedule property.
16. From the evidence of DW.2 he has no personal identity with regard to the plaintiffs in O.S.No.5/2008 except stating that they are the sisters of husband of Ramulamma. Further the evidence reveals that he prepared Ex.B7. According to DW.1 Ex.B7 was prepared at one instance. Ex.B7 was filed in proof of showing the material for construction of the house i.e., item No.1 and payments etc., facts. To substantiate the said fact the defendants got examined DW.2.
According to him he has prepared accounts in small note book i.e.,
Ex.B7 and he used to maintain the book. According to DW.1 who used to pay the amounts through DW.2 deposed that the writings in Ex.B7 are of his brother Yellaiah i.e., DW.2 and admitted that there are different writings. She further deposed that about five or six persons wrote continuously at a stretch at one instance. The possibility of drafting Ex.B7 at one instance reveals that the document was not account for in discharge of day to day transactions. But is a document got prepared at one instance with the help of five or six persons. No doubt it is a self-served document wherein it cannot substantiate in proof of the contention raised by the defendants that she constructed the house. Hence, no weight can be given to the document or to the evidence of DW.2 as it reveals he is interested witness and related to
DW.1. Even in his cross-examination with regard to item No.2 he admitted that item No.2 is in possession of the person who filed the suit, hence he is not confirm or having knowledge with regard to the person who is in possession of the property. Hence, no weight can be given to evidence of DW.2.
17. DW.3 who is a third party to the suit. As per his cross- examination he is one of the member of Mason Association, Nandyal.
He has no identity card showing that he is member of the said association. He do not know the house number of item No.1 of schedule property. He do not know the owners of the property situated 22 towards east and west. There is rasthas on north and south of item
No.1 of schedule property. One Mastry by name Maddilety died about three years back and he assisted him. DW.2 constructed house and shops and he assisted him. He was brought by DWs.1&2. Except the above evidence nothing could be elicited through the evidence of DW.3 in support of the case of defendants.
DW.4 admitted that in O.S.No.5/2008 was filed by defendants 1 to 3 who are erred as defendants in O.S.No.21/2008. He admitted that item No.1 is house property shown in O.S.No.5/2008. Item No.2 is the agricultural land. The agricultural land is the only subject matter in
O.S.No.21/2008. He admitted that as far as item No.1 is concerned he
is not claiming any right title or relief in O.S.No.21/2008. He admitted that they are claiming right, title basing on the document dt.19.9.1996 i.e., gift deed (Ex.A1). He admitted that the executant is Noone
Venkatanna who executed in favour of 1st defendant and his son. He admitted that limited rights were given to the 1st defendant and further deposed that vested rights were given to the male children of 1st defendant and the male children of Venkata Subbaiah. He admitted that in Ex.A1 there is no such recital that the male children of Venkata
Subbaiah will also be given vested interest along with the unborn male children of 1st defendant. He further deposed that there is recital that neither the donar nor any other legal heir will have any right. He admitted that in Ex.A1 there is a recital that property covered under
Ex.A1 was delivered to the 1st defendant and according to Ex.A1 1st defendant has to enjoy the properties, later it will be given to Venkata
Subbaiah and further deposed that the 1st defendant’s enjoyment is limited interest and admitted as she is enjoying the properties Exs.A2 & A3 were issued in her favour. He admitted that till the death of 1st defendant Venkata Subbaiah will not get any right over the property under Ex.A1 and that their claim is defendants 4 & 5 executed a registered sale deed in his favour with regard to the land shown in
O.S.No.21/2008 and admitted that by the date of execution of Ex.B12
1st defendant is alive. He admitted that the 1st defendant is not a party to Ex.B12 and that the 1st defendant is executed a gift deed in favour of defendants 2 & 3 with regard to the properties covered in 23
O.S.No.5/2008. He has not gone through Ex.A4 and admitted that
there is a recital in Ex.A4 that limited rights were enlarged as absolute rights and that first defendant along with her daughters filed
O.S.No.5/2008 against defendants 4 & 5 and one Papaiah and also
obtained temporary injunction, later it was made absolute. He denied the suggestion that during the pendency of the suit 1st defendant and her daughter filed criminal case contending that they have trespassed into the land highhandedly. Further deposed that the said contentions are wrong and the criminal case filed ended an acquittal could not recollect whether section 144 proceedings were initiated and admitted on perusing the document which was confronted by the counsel for the plaintiff in O.S.No.5/2008. He also admitted a criminal case was filed against defendants 1 to 3 and others by Ramulamma and her son wherein he was cited as a witness and was examined as PW.6 and the same ended an acquittal. He admitted that by virtue of orders in
I.A.No.19/2008 himself and defendants 4 & 5 were restrained from entering into the schedule property i.e., agricultural lands. At the time of execution of Ex.B12 1st defendant was not present, they got executed Ex.B12 at the time of giving advance an agreement was scribed. The defendants 1, 4 & 5 jointly executed an agreement of sale in their favour. The said agreement of sale was executed in the name of his father and it does not bear the signature or thumb impression of 1st defendant. He deposed that he do not know whether the defendants 4 & 5 have pleaded that the 1st defendant relinquished her limited rights by the time of receiving the token advance by him.
There is no documentary proof to show that the 1st defendant has given consent to sell the property along with defendants 4 & 5 and received some amounts i.e., her share and further deposed that no pattadar passbook and title deeds were issued in his name.
DW.5 the third party to the suit who attested Ex.B12. In his cross-examination he admitted that he also called as Balija Papaiah and admitted that he is the third defendant in O.S.No.5/2008 the daughter of 2nd plaintiff was given in marriage with 1st defendant and she is no more. He admitted that case under section 304B IPC was registered against himself, defendants 1 & 2 in O.S.No.5/2008. Further deposed that he do not know whether in the said criminal case it was 24 alleged that himself and 2nd defendant are living under one roof illegally. He admitted that the husband of 2nd defendant is no more and deposed that he is no where related to the properties shown in
O.S.No.5/2008. Hence he is not deposing any evidence relating to the
property. As third defendant Rs.70,000/- was deposited out of love and affection on 1st plaintiff as she is having right and also for her well being. He deposed that he do not know the reason for not depositing the said amount in the name of 1st plaintiff and admitted that prior to execution of the sale deed dt.3.5.2006, an agreement was executed by 2nd defendant in favour of Sivasankar Reddy, the father of plaintiff in O.S.No.21/2008 wherein he attested. He admitted the said agreement there are some part payments made oftenly and endorsed on the reverse side of agreement. He has not gone through the title of the vendors of Ex.B12. He do not know whether the first plaintiff executed gift deed in favour of plaintiffs 2 & 3 with regard to the plaint schedule property as she is the absolute owner of the property.
18. Ex.A1 is the registered extract of gift settlement deed dt.19.9.1966 the original is marked as Ex.B1. It was executed by
Noone Venkatanna in favour of his wife Lakshmamma giving her life interest without right of alienation or conveying by way of gift deed etc., and vested right in favour of the minor son Venkata Subbaiah and unborn son if born in future. With regard to the properties covered under Sy.No.2232/1 pyki to an extent of Ac.0.18 cents and 737/3 pyki to an extent of Ac.0.09 cents thrashing floor house No.29/101 (old) 104 (new). Exs.A2 & A3 are pattadar passbook and title deed dt.2.9.2004. Ex.A4 is the gift deed dt.16.12.2006 with regard to items 1 & 2 of plaint schedule properties. Ex.A5 is the challan issued in the name of Ramanamma i.e., PW.1 and Ex.A6 is receipt issued by
Nandyal Municipality with regard to the water tax. Ex.A7 is the property tax payment receipt issued by Commissioner Nandyal
Municipality for house D.No.29/104, Ex.A8 is the legal notice dt.4.3.2007 issued by 1st defendant in O.S.No.5/2008 through his counsel alleging that Venkatana died 20 years ago. The said
Venkatana who is his grandfather executed gift settlement deed with limited rights and vested remainder rights in favour of male issues to be born and to his son Venkata Subbaiah. Therefore, his client i.e., 25
Anjaneyulu, 1st defendant in O.S.No.5/2008 is the male issue born to his son Venkatanna and entitled to the property as mentioned in the notice schedule. His clients mother Ramalakshmamma along with his client i.e., Anjaneyulu spent Rs.4,00,000/- and reconstructed the building in entirety and made fit for living in the said house. No.1 of the party referred in the notice i.e., the plaintiff in O.S.No.5/2008 is having limited rights in the notice schedule property lived with his clients i.e., Anjaneyulu and his mother for about two years. Further his clients are alienated the properties item No.2 comprised of
Sy.No.2232/4 and paid Rs.75,000/- to Lakshmamma (No.1 of the notice) towards relinquishment of limited rights and he already spent
Rs.4,00,000/- remodeling the property i.e., item No.1. In addition to the oral assurance given by Lakshmamma No.1 of the notice she has also executed an unregistered agreement dt.16.11.2004 in favour of his client conferring absolute rights in all the three items of notice schedule property. Hence, they are stopped in law to act in contra to the said agreement.
19. As seen from the notice the contention and the evidence let in by the defendants in O.S.No.5/2008 is not reflecting intoto. There is no averment with regard to the existence of unregistered relinquishment deed said to have been executed by Lakshmamma as per the notice averments.
20. Ex.A9 is the office copy of reply notice dt.18.3.2007. It appears from the exchange of notices Exs.A8 & A9 already the property was transferred from the 1st plaintiff and 3rd plaintiff by way registered gift deed, so also defendants 1 & 2 have executed sale deed in favour of plaintiff in O.S.No.21/2008. Exs.A10 to A19 are caveat petitions.
Ex.A20 is the certified copy of FIR complaint given by PW.1/2nd plaintiff in O.S.No.5/2008 and Ex.A21 is remand report. Ex.A22 is the proceedings transferring the title based on registered document bearing No.8696/2006 dt.16.12.2006 relating to house No.29/104,
Ex.A23 is the endorsement for assessment of water tax.
21. Ex.B2 is the registered sale deed dt.1.5.1955, Ex.B3 is the property tax receipts (18 in number), Ex.B4 is the discharged 26 promissory notes (4 in number), Ex.B5 is the stamp receipt dt.nil,
Ex.B6 is the original bill dt.12.1.2005, Ex.B7 is the note book maintained by defendant, Ex.B8 is the electricity receipts (14 in number), Ex.B9 is the positive photos of corresponding CD and bill,
Ex.B10 is the office copy of legal notice dt.3.8.2007, Ex.B11 is the family members list, Ex.B12 is the original registered sale deed dt.3.5.2006 executed by the defendants in favour of the plaintiff in
O.S.No.21/2008, Ex.B13 is the certified copy of registration copy of
the registered gift deed dt.16.12.2006 executed by the 1st defendant in favour of the defendants 2 and 3, Ex.B14 is the original fixed deposit receipt for Rs.70,000/- kept in the joint names of the plaintiffs in O.S.No.21/2008 and the 4th defendant, Exs.B15 and B16 two tax receipts in favour of the plaintiff, Ex.B17 is the certified copy of No.3 adangal issued in favour of the plaintiff in O.S.No.21/2008 for the year 2006-07.
22. Gift inter vivos is gratuitous transfer of ownership between two living persons and is transfer of property within the meaning of Section 5 of Transfer of Property Act, 1882. Section 122 of Transfer of
Property Act, 1882 defines „Gift‟ as under”- “122. “Gift” defined. – “Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made. – Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.”
f) The transferee must accept the gift – The gift must be accepted by the donee himself. Acceptance must be made during lifetime of the donor and while he is capable of giving.
23. Section 123 of Transfer of Property Act, 1882 dealing with making of a Gift reads as under:- “123. Transfer how effected. – For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by 27 registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.”
24. Section 126 of Transfer of Property Act, 1882 dealing with suspension/revocation of a Gift reads as under:- “126. When gift may be suspended or revoked – The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.”
25. A gift may be revoked for coercion, fraud, misrepresentation, undue influence in the same way as a contract may be rescinded.
26. Section 17 of the Contract Act defines „Fraud‟ as an inducement by a party to the contract by making a suggestion as a fact which is not true or by active concealment of a fact or by making a promise without any intention of performing it or by any other act intended to deceive, to the other party.
27. Under Section 16 of the Contract Act to be said to be induced by undue influence, the relations subsisting between the parties are to be such that one of the parties was in a position to dominate the will of the other and uses that position to obtain an unfair advantage of the other.
28. As per section 14(1) of Hindu Succession Act even if there is a condition restricting the right of life interest over the property when there is a pre-existing right of maintenance the right of Hindu female widow will be enlarged into absolute right. Here in the case on hand though the gift deed Ex.B1 confers right of life interest before her death the son Venkata Subbaiah predeceased his mother. Hence, the life interest of the 1st plaintiff will be enlarged as sbolute rights over the property as per section 14(1) of Hindu Succession Act, 1956.
When once her rights were made absolute over the property execution 28 of the settlement deeds in favour of plaintiffs 2 & 3 in O.S.No.5/2008 are entitled for declaration of their title, hence the plaintiffs in
O.S.No.5/2008 are entiled for declarationof the tile with regard to the
items 1 & 2 of plaint schedule property. Hence, the 1st issue is settled in favour of the plaintiffs in O.S.No.5/2008.
29. Issues No.2 & 3 in O.S.No.5/2008 : As issue No.1 is settled in favour of the plaintiffs they are entiled for delivery of possession and consequential permanent injunction as prayed. Hence, the issues No.2 & 3 are settled in favour of the plaintiffs.
30. Issue No.1 in O.S.No.21/2008 : As the plaintiffs failed to prove his title. Hence, the 1st issue is settled against the plaintiffs.
31. Issue No.2 in O.S.No.21/2008 : As the 1st issue is settled against the plaintiffs, the plaintiffs are not entitled for permanent injunction as prayed for. Hence, the 2nd issue is settled against the plaintiffs.
32. Issue No.4 :
In the result, the suit is decreed in favour of the plaintiffs and against the defendants with costs by declaring the plaintiffs 2 & 3 are absolute owners of the plaint schedule properties and delivery of possession of item No.1 of plaint schedule property within two months from the date of judgment failing which the plaintiffs are at liberty to proceed as per law. The defendants and their men are restrained from interfering and trespassing into the item No.2 of the plaint schedule property.
33. Issue No.3 in O.S.No.21/2008 :
In the result, the suit is dismissed without costs.
Dictated to Stenographer, translated by him, corrected, signed and
pronounced by me in open Court this the 6th day of October, 2016.
II-Additional Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
29
Appendix of Evidence.
Witnesses examined.
For Plaintiffs For Defendants P.W.1. Chilakala Ramanamma DW.1: N.Ramulamma P.W.2. B.Surya Naik (eschewed) DW.2: C.Yellaiah P.W.3. Shaik Mohammad Hussain DW.3: Shaik Kalam (eschewed) P.W.4. P.Narayana DW.4: G.Ramesh Babu P.W.5. M.Kristopher DW.5: P.Papaiah P.W.6. A.Nagaraju
Exhibits marked for the Plaintiffs
Ex.A1 is the registered extract of gift settlement deed dt.19.9.1966 the original is marked as Ex.B1. Exs.A2 & A3 are pattadar passbook and title deed dt.2.9.2004. Ex.A4 is the gift deed dt.16.12.2006 with regard to items 1 & 2 of plaint schedule properties. Ex.A5 is the challan issued in the name of Ramanamma i.e., PW.1. Ex.A6 is receipt issued by Nandyal Municipality with regard to the water tax. Ex.A7 is the property tax payment receipt issued by Commissioner Nandyal Municipality for house D.No.29/104. Ex.A8 is the legal notice dt.4.3.2007. Ex.A9 is the office copy of reply notice dt.18.3.2007. Exs.A10 to A19 are caveat petitions. Ex.A20 is the certified copy of FIR complaint given by PW.1/2nd plaintiff in O.S.No.5/2008. Ex.A21 is remand report. Ex.A22 is the proceedings transferring the title based on registered document bearing No.8696/2006 dt.16.12.2006 relating to house No.29/104. Ex.A23 is the endorsement for assessment of water tax.
Exhibits marked for the defendants
Ex.B2 is the registered sale deed dt.1.5.1955. Ex.B3 is the property tax receipts (18 in number). Ex.B4 is the discharged promissory notes (4 in number). Ex.B5 is the stamp receipt dt.nil. Ex.B6 is the original bill dt.12.1.2005. Ex.B7 is the note book maintained by defendant. Ex.B8 is the electricity receipts (14 in number). Ex.B9 is the positive photos of corresponding CD and bill. Ex.B10 is the office copy of legal notice dt.3.8.2007. Ex.B11 is the family members list. Ex.B12 is the original registered sale deed dt.3.5.2006 executed by the defendants in favour of the plaintiff in O.S.No.21/2008. Ex.B13 is the certified copy of registration copy of the registered gift deed dt.16.12.2006 executed by the 1st defendant in favour of the defendants 2 and 3. Ex.B14 is the original fixed deposit receipt for Rs.70,000/- kept in the joint names of the plaintiffs in O.S.No.21/2008 and the 4th defendant. Exs.B15 and B16 are two tax receipts in favour of the plaintiff.
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Ex.B17 is the certified copy of No.3 adangal issued in favour of the plaintiff in O.S.No.21/2008 for the year 2006-07. II-ASCJ,Ndl. FAC I-ASCJ,Ndl.