Page 1 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
IN THE COURT OF THE SENIOR CIVIL JUDGE :: CHODAVARAM
PRESENT: Sri P. R. RAJEEV,
SENIOR CIVIL JUDGE,
CHODAVARAM.
FRIDAY, THIS THE 23 rd DAY OF JULY, 2021
O.S.No.46/2013
Between:
1. Donda Govardhan, S/o Suryanarayana, Age 55 years, Hindu, Cultivation, Resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District.
2. Donda Narayana Dora, S/o Suryanarayana, Age 40 years, Hindu, Cultivation, Resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District( Died).
3. Donda Venkata Ramanamma, W/o late Suryanarayana, Age 80 years, Hindu, Hindu wife, Resident of Vaddadi Village, Butchiyyapeta Mandal, Visakhapatnam District.
4. Donda Sandhya, W/o late Narayana Dora, Age 30 years, Hindu, Housewife, resident of Veeravelli Agraharam Village, Madugula Mandal, Visakhapatnam District.
5. Donda Sai Naga Satvick, S/o late Narayana Dora, Age 9 years, Hindu, resident of rest do.
6. Donda Sai Sankeertana, D/o late Narayana Dora, Age 7 years, Hindu, resident of rest do. (Died) ( The plaintiffs 5 and 6 being minors represented by their mother and natural guardian Donda Sandhya i.e., 4th plaintiff) (The plaintiffs 3 to 6 are added as L.Rs of deceased 2nd plaintiff, as per orders
dated 29-12-2017 in I.A.No.576/2017).
… Plaintiffs
And:
1. Donda Narayana Murthy, S/o Appanna Dora, Age 70 years, Hindu, Cultivation, Resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District.(Died).
2. Donda Ravi Kumar, S/o Varahaludora, Age 35 years, Hindu, Cultivation, Permanent Resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District.
Page 2 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
3. Donda Satyanarayana, S/o Varahaludora, Age 30 years, Hindu, Cultivation, Permanent Resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District.
4. Kota Suneetha, D/o Varahaludora, Age 35 years, Hindu, Cultivation, Permanent Resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District, presently residing in Visakhapatnam.
5. Donda Sattamma, W/o late Narayana Murthy, Age 60 years, Housewife, Hindu, resident of Vaddadi Village and Butchiyyapeta Mandal, Visakhapatnam District.
6. Donda Appannadora @ Ravi, S/o late Narayana Murthy, Age 35 years, Cultivation, Rest -do- (Died).
7. Donda Narayana Murthy, S/o late Narayana Murthy, Age 26 years, Rest – Do - .
8. Adatravu Vijaya, W/o Nookaraju, Age 40 years, Hindu, Housewife, Rest -Do-.
9. Pallela Surya Varalaxmi, W/o Jaggarao, Age 38 years, Housewife, resident of Gowripatnam Village, Chodavaram Mandal, Visakhapatnam District.
10. Donda Nagamani, W/o Late Appanna Dora @ Ravi, Aged 32 years, Resident of Donda Street, Vaddi Village and post, Butchayyapeta Mandal, Visakhapatnam District.
11. Donda Kowsik Narayana, S/o Late Appanna Dora @ Ravi, Aged 4 years, Rest – do - .
(The 11th defendant being minor represented by his mother and natural guardian i.e., the 10th defendant.) (The names of the defendants 2 and 3 in the cause title are corrected as per orders
dated 14-03-2014 in I.A.No.259/2013).
(The defendants 5 to 9 are added as L.Rs of the deceased 1st defendant as per orders
dated 14-03-2014 in I.A.No.258/2013).
( The 5th defendant is the wife of the 1st defendant died. A memo stating that L.Rs of deceased 5th defendant are already on record as defendants 6 to 9 filed and the same is recorded by the Hon'ble court on 01-09-2014).
(The defendants 10 and 11 are added as Lrs of deceased 6th defendant as per orders in IA 385/2018 dated 14-08-2018.) … Defendants
Page 3 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
This suit is coming before me for final hearing on 16.07.2021 in the
presence of Sri K. David, Advocate for the Plaintiffs and Sri G.V.Ganeswara
Rao, for the D-2 to D-4, Sri K. S. Ramaiah and Sri M. S. Naidu, Advocates for the
D-6 to D-11. D-1 and D-5 Died. Upon perusing the material available on record,
upon hearing arguments and having stood over for consideration till this day,
this Court delivered the following:-
JUDGMENT
1.The Plaintiffs are seeking to declare the right and title of plaintiffs and defendants 2 to 4 over the plaint schedule property and consequential relief of recovery of possession of plaint schedule property after ejecting defendants 6 to 11 etc.,
2.The brief averments in the plaint are that:
One Donda Bulli Dora, Godavarayya Dora and Narayana Dora are brother and sons of
Donda Sanyasi Dora. Bulli Dora had a son namely Venkayya Dora and Donda
Mahalakshmamma is his wife. Donda Venkayya Dora died issue-less while he was minor in the year 1944. Donda Godavarayya also died leaving behind his son Donda
Suryanarayana Dora as his legal heir in the year 1944. The plaint schedule property is the absolute property of Narayana Dora and Suryanarayana Dora. As
Mahalakshamamma was in need of food and raiment out of compassion gratis and on humanitarian grounds Donda Suryanarayana Dora and Narayana Dora executed registered instrument dated 06-05-1944 in respect of plaint schedule property in favour of Donda Mahalakshamamma and delivered possession to her as a limited owner with a condition that the plaint schedule property shell revert back to the executants or to their legal heirs or to their representatives after her demise.
The said Mahalakshamamma having agreed the terms of said instrument and intention of the parties in turn she executed another instrument i.e., Edurugada
Page 4 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
Dastaveju on the same day i.e., 06-05-1944 in favour of Donda Suryanarayana Dora and Narayana Dora. Mahalakshamamma used to spend the income derived out of the plaint schedule property. The 1st defendant is a relative of Mahalakshamamma used to assist her and get cultivated the plaint schedule land.
While so on 02-02-2011 Mahalakshamamma died and the right given to her under instrument came to an end. As per the terms of the two registered instruments
dated 06-05-1944 the plaint schedule property was to revert back plaintiffs and
defendants 2 to 4 as they are the legal heirs of Donda Suryanarayana Dora and
Donda Narayana Dora died by then. The plaintiffs demanded the 1st defendant to deliver possession of the plaint schedule property for which 1st defendant used to postpone on pretext or the other. The plaintiffs got issued legal notice dated 12-08-2011 to 1st defendant demanding him to deliver possession of the plaint schedule property and to pay mean profits. The 1st defendant got issued reply notice
dated 29-08-2011 by claiming title under registered deeds dated 08-08-1985 and
24-02-1997 said to have been executed by Mahalakshamamma in his favour.
The sale deed dated 08-08-1985 and 24-02-1997 are not true, valid documents and not supported by consideration. The said documents are created by the 1st defendant to grab the plaint schedule property. The 1st defendant is aware of the right and title of plaintiffs and defendants 2 to 4 over the plaint schedule property.
Hence, the suit.
After filing of the suit as 1st defendant died, defendants 5 to 9 are added as his
L.Rs. As 2nd plaintiff died on 27-06-2017 leaving behind him plaintiffs 3 to 6 as his legal representatives they were added as parties, as 6th defendant died on 18-05-2018 is his L.R defendants 10 and 11 were added as parties.
3.The defendants resisted the claim of plaintiffs by filing written statement and contents are as follows:
Page 5 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
The 2nd defendant filed the written statement and the same was adopted by defendants 3 and 4 that, the suit is bad for non-joinder of necessary party Donda
Varahalu Dora who is the husband of Donda Varalakshmi and the father of defendants 2 to 4. The names of defendants 2 and 3 and also their father's name are not correct.
The actual name of 2nd defendant is Donda Ravi Kumar and 3rd defendant is Donda
Satyanarayana. The plaintiffs wantonly avoided to mention the husband's name of 4th defendant. The defendants 2 to 4 are not the residents of Vaddadi Village and they are residents of Visakhapatnam. The suit summons were not served on the defendants.
The plaintiffs themselves mentioned in the plaint that defendants 2 to 4 have not joined them for filing the suit and hence they are added as defendants 2 to 4 in the suit. Where as the prayer portion which is not possible under law without seeking for partition.
The 6th defendant filed written statement and the same is adopted by defendants 7 to 9 and the contents are that:
The allegations in the plaint are all false. Donda Narayana Dora used to manage joint family properties of his brothers and he was a powerful, intelligent and a influential person in the village. He also President of Vaddadi Gram Panchayat,
Mahalakshamamma was very young and she has no wordly knowledge by the date of documents dated 06-05-1944. Taking advantage of Mahalakshmamma's innocence and illiteracy, Narayana Dora created the documents dated 06-05-1944 to gain unlawfully, without informing her the contents of documents.
The documents were executed in recognition of Mahalakshmamma's right of maintenance out of jointly family property held by them and put her in possession of the same. Since then the Mahalakshamamma is in exclusive possession and enjoyment of plaint schedule land by getting it cultivated through hired labour. The
Page 6 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram 1st defendant is not related to Mahalakshmamma and he never assisted her in the cultivating the plaint schedule land at any time.
While so Mahalakshmamma in order to discharge sundry debts and for her maintenance mortgaged the plaint schedule land to 1st defendant and put him the possession. Subsequently Mahalakshmamma in order to discharge the loan contacted by her from the Land Mortgage Bank, Chodavaram and to meet her personal expenses sold the undivided half share in the plaint schedule land to 1st defendant under registered sale deed dated 08-08-1985. The 1st defendant became joint owner along with Donda Mahalakshmamma in respect of plaint schedule property.
Some time thereafter Mahalakshmamma in order to discharge mortgage debt due to 1st defendant and for her medical expenses and maintenance sold the remaining half share in the plaint schedule land to 1st defendant under registered sale deed dated 24-02-1997. Thus the 1st defendant became absolute owner of plaint schedule land. The revenue authorities issued title deed and ryot pass book in recognition of 1st defendant's possession over the plaint schedule land.
As per Hindu Succession Act Donda Mahalakshmamma acquired right and title over the plaint schedule land covered by registered document dated 06-05-1944 which was given in recognition of her maintenance. The plaintiffs and defendants 2 to 4 will not get right and title over the plaint schedule property. The plaintiffs having aware of the same filed the suit for unlawful gain and to harass the 1st defendant and his family members. The plaintiffs had another brother namely Prasad who died and his wife and children are necessary parties to the suit and as such suit is bad for non-joinder of necessary parties.
The defendants 10 and 11 adopted written statement filed by 2nd defendant.
4.Basing on the respective pleadings of both parties to the suit, my learned predecessor framed the following issues for trial:
Page 7 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
1. Whether the suit is bad for non-joinder of necessary parties?
2. Whether the Defendant No.1 is absolute owner of plaint schedule land
purchased it under two registered sale deeds dated 08-08-1985 and 24-02-1997
from Donda Mahalakshmamma?
3. Whether the plaintiffs, Defendant Nos.2 to 4 are entitled for declaration of their right, title in respect of suit schedule property against Defendant Nos.5 to 9 as prayed for?
4. Whether the plaintiffs and Defendant Nos.2 to 4 are entitled for possession of suit schedule property after ejecting Defendant Nos.6 to 9 in respect of suit schedule property as prayed for?
5. Whether the plaintiffs are entitled for mesne profits against the defendants as prayed for?
6. To what relief?
5.During the course of trial on behalf of the plaintiffs, 1st plaintiff is examined as
Pw-1 and got marked Ex.A.1 to Ex.A.4. On behalf of defendants 6 to 11 the 7th defendant examined as Dw-1 and got marked Ex.B.1 to B.5. They have also examined one of the attesting witness to the sale deeds Battula Apparao, S/o late
Thatayya Dora as Dw-2 and Garikipati Venkata Ramana S/o Bennayya Dora as Dw-3, 3rd party witness namely Donda China Thatayya, S/o late Ramanna Dora as Dw-4.
The 2nd defendant as Dw-5.
6. The learned counsel for plaintiffs and defendants filed written arguments in support of their contention. In view of the plaint and written statement averments, oral and documentary evidence placed on behalf of both parties and the written arguments submitted by both counsel on record, now the issues are taken up for the discussion for to find out whether plaintiffs established the suit claim or not?
7. The plaintiffs 1 and 2 originally filed suit against defendants 1 to 4. As 1st defendant died his legal representatives defendants 5 to 9 were added as parties in the suit as per orders in I.A.No.258/2013 dated 14-03-2014. The 5th defendant died who being the wife of 1st defendant and a memo filed on 01.09.2014 stating that her
Page 8 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
L.Rs who are defendants 6 to 9 already on record and the same is recorded. As 6th defendant died his legal representatives defendants 10 and 11 were brought on record as per orders in I.A.No.385/2018 dated 14-08-2018.
As the 2nd plaintiff died his legal representatives plaintiffs 3 to 6 were brought on record as per orders in I.A.No.576/2017 dated 29-12-2017. Subsequent to filing of the written statement by defendants 2 to 4 the names of defendants 2 and 3 are corrected in the cause title of plaint as per orders in I.A.No.259/2013 dated 14-03-2014.
ISSUE No. 1 :
8.The plaintiffs are seeking declaration of their and defendants 2 to 4 right, title over the plaint schedule property and also consequential relief of recovery of possession of plaint schedule property after ejecting defendants 5 to 11. The defendants contested the suit by filing written statement on their behalf. It is the specific contention of defendants 2 to 4 as per the written statement that, Donda
Varahalu Dora who is the husband of Donda Varalakshmi and their father is also having joint rights over the plaint schedule property along with plaintiffs and defendants 2 to 4 is not joined as party in the suit. Likewise the 6th defendant filed written statement contending that, plaintiffs had brother namely Donda Prasad and he died leaving behind his wife and children and they are not joined as parties. The defendants thereby contended that Donda Prasad and Varahalu Dora are also having joint rights along with defendants 2 to 4 and plaintiffs over the plaint schedule property and they are also necessary parties to the suit and as plaintiffs failed to join them in the suit on that ground the suit is bad for non-joinder of necessary parties.
9.On the other hand, the plaintiffs did not dispute the relationship of Donda Prasad as well as Donda Varahalu Dora. The plaintiffs contended that though the said Prasad and Varahalu Dora are not joined as parties to the suit the suit is maintainable as other sharers who are co-owners in respect of plaint schedule property initiate the suit. The
Page 9 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram plaintiffs in support of their contention placed reliance upon decision reported in:
Sriram Pasricha
Vs.,
Jagannath and other
AIR 1976 SC 2335
The plaintiffs filed suit for eviction against the defendants on
the ground of non payment of rent and reasonable
requirement of the premises for the landlord. When it is
contended by the tenants that the other co-sharers of
tenanted premises were not added as parties to the suit. Then
his lordship held that, a co-owner is as much an owner of the
entire property as any sole owner of a property is and as such
suit filed by plaintiffs is maintainable.
On the other hand, the learned counsel for defendants disputing the arguments of the plaintiffs in this regard placed reliance upon decision reported in:
K. Bhaskar Rao
Vs.,
K. A. Rama Rao
2010 ALT (6) 109
The plaintiff filed suit for partition of plaint schedule property.
The defendants contended that suit is bad for non-joinder of
necessary parties who are sisters of plaintiff. His lordship
held that, defect of non-joinder of necessary parties being
fatal, the same cannot be cured by impleading them in appeal.
It is clear from the rival contention of parties to the suit, the plaintiffs are seeking declaration of their and defendants 2 to 4 right and title over the plaint schedule property. The plaintiffs are claiming that the plaint schedule property is the absolute property of themselves and defendants 2 to 4. The defendants through their written statement raised objection for maintainability of suit on the ground that the necessary
Page 10 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram parties who are having joint rights along with plaintiffs and defendants 2 to 4 over the plaint schedule property not joined as parties. On this aspect on perusal of evidence of the 1st plaintiff as Pw-1 and the 2nd defendant as Dw-5 goes to show that, the plaintiffs had brother namely Donda Prasad and he died intestate leaving behind his wife and children. Likewise, the father of defendants 2 to 4 Donda Varahalu Dora is very much alive and plaintiffs except joined his children who are defendants 2 to 4 as parties but not joined him as party to the suit. It is also not in dispute that, Donda Prasad and
Varahalu Dora are also having joint rights along with plaintiffs and defendants 2 to 4 over the plaint schedule property. The plaintiffs having aware of the relief they sought for in the suit as well as rights of the legal heirs of deceased Donda Prasad and Donda
Varahalu Dora but not shown them as parties in the suit and they have also not taken any steps to join them as parties to the suit in spite of objection raised by defendants as per their written statement. Considering the nature of suit and relief claimed by the plaintiffs over the plaint schedule property for proper and effective adjudication all the parties who are having interest over the disputed property are necessary parties to the suit and in their absence the suit is bad on that ground alone. The learned counsel for plaintiffs in the written arguments stated that, the legal heirs of Donda Prasad filed application before this court to implead them as parties to the suit. On perusal of the record, no such application is pending before the court.
The reasons put forth by the plaintiffs and also the decision relied upon is not applicable to the case on hand. Though the stand taken by the defendants that the suit is bad for non-joinder of necessary parties is convincing but the decision relied upon by the defendants in this regard is also not applicable to the case on hand.
The entire pleadings as well as the evidence put forth by the plaintiffs convincingly established that the legal heirs of deceased Prasad and father of defendants namely Varahalu Dora are proper parties to the suit. The non-joinder of
Page 11 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram proper parties as discussed in the suit is fatal to the case of plaintiffs. This issue is accordingly decided in favour of defendants as against plaintiffs.
ISSUE Nos 2 to 4:
10.The plaintiffs 1 and 2 are brothers and children of Late Donda Suryanarayana.
The plaintiffs 3 to 6 are the legal heirs of deceased 2nd plaintiff. The plaintiffs 5 and 6 being minor by the date of their joined as parties being represented by their mother who is 4th plaintiff. The defendants 2 to 4 are the children of Varahalu Dora. Donda
Bulli Dora, Godavarayya Dora and Narayana Dora are brothers and they are the sons of Donda Sanyasi Dora. Donda Bulli Dora had a son namely Venkayya Dora. Bulli
Dora died leaving behind his son Venkayya Dora and Godavarayya Dora also died leaving behind his son Donda Suryanarayana Dora. Donda Venkayya Dora who is the son of Donda Bulli Dora married to Donda Mahalakshamamma and he died while he was minor by the year 1944 leaving behind Donda Mahalakshamamma as his heir.
11. After the death of Donda Venkayya Dora his wife Donda Mahalakshamamma was in need of maintain herself, then Donda Suryanarayana Dora and Narayana Dora out of compassion and humanitarian grounds executed registered instrument dated 06-05-1944 in favour of Donda Mahalakshamamma in respect of plaint schedule property towards her maintenance with life interest rights and after the death of Donda
Mahalakshamamma it shall revert back to the executants or their legal heirs. Donda
Mahalakshamamma accepted the plaint schedule property in terms of registered deed
dated 06-05-1944 and in turn executed registered deed (Edurugada Dastaveju) dated
06-05-1944 in favour of Donda Suryanarayana Dora and Donda Narayana Dora.
12.While Donda Mahalakshamamma was in possession and enjoyment of the plaint schedule property in terms of registered deed dated 06-05-1944 during her life time she sold the plaint schedule property to 1st defendant through two registered sale deeds dated 08-08-1985 and 24-02-1997 in order to discharge mortgage over the
Page 12 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram plaint schedule property and for her medical expenses. After the death of Donda
Mahalakshamamma the plaintiffs demanded and got issued legal notice dated 12-08-2011 to 1st defendant to deliver the possession of plaint schedule property and the plaintiffs came to know through reply notice dated 29-08-2011 got issued by 1st defendant that Donda Mahalakshamamma sold the plaint schedule property in favour of 1st defendant by way of two registered sale deeds.
13. The plaintiffs are seeking declaration of their and defendants 2 to 4 right and title over the plaint schedule property in view of the defendants 5 to 11 claiming right and title over the plaint schedule property as per the registered sale deeds stands in the name of 1st defendant. The plaintiffs as per their pleadings claimed that defendants 2 to 4 have not co-operated and not come forward to file suit along with them against defendants 1, 5 to 11 as such they are shown as defendants 2 to 4 in the suit.
Whereas the contention of defendants 2 to 4 as per their written statement and evidence of 2nd defendant as Dw-5 that, plaintiffs never contacted them in connection with the case as well the suit summons got issued by the plaintiffs were not served on them as they are not residing at the place where the suit summons were taken out.
The 1st plaintiff examined as Pw-1 also admitted the claim of defendants 2 to 4 in this regard which is contra to the pleadings of the plaintiff and their claim regarding defendants 2 to 4 not co-operated with them to file the suit have no legs to stand.
Though defendants 2 to 4 disputed the contention of plaintiffs that the plaintiffs never contacted them for filing the suit but they have not disputed their right and title along with plaintiffs over the plaint schedule property.
14. The plaintiffs basing upon registered deed dated 06-05-1944 executed by
Donda Suryanarayana Dora and Narayana Dora in favour of Donda
Mahalakshamamma and registered deed dated 06-05-1944 executed by Donda
Mahalakshamamma in favour of Donda Suryanarayana Dora and Donda Narayana
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Dora, the certified copy of the said deeds are marked as Ex.A.1 and Ex.A.2, claimed that plaint schedule property is their absolute property and that in terms of the original of Ex.A.1 deed the plaint schedule property was given to Donda Mahalakshamamma towards her maintenance in view of death of her husband Donda Venkayya Dora while she was minor with a limited interest and the same shall revert back to the executants or their successors and in terms of the original of Ex.A.2 Donda
Mahalakshamamma agreed her limited interest over the plaint schedule property. The sale deeds said to have been executed by Donda Mahalakshamamma during her life time in favour of 1st defendant which are marked as Ex.B.1 and B.2 in respect of plaint schedule property is not binding and no right conveyed to 1st defendant or defendants 5 to 11 as Donda Mahalakshamamma is having only limited interest.
15. The contention of defendants 5 to 11 are that, the plaint schedule property conveyed to Donda Mahalakshamamma in terms of original of Ex.A.1 is towards her maintenance and the said property is the absolute property of Donda Suryanarayana
Dora, Donda Narayana Dora and Donda Venkayya Dora which acquired by them from their ancestors, as such it will become absolute property of Donda
Mahalakshamamma and the restriction imposed in terms of the original of Exs. A1 and
A.2 deeds will not stand. The plaint schedule property is the absolute property of
Donda Mahalakshamamma and in order to discharge the mortgage debt and to meet her medical expenses she sold the said property by way of Ex.B.1 and B.2 registered sale deeds in favour of the 1st defendant. The plaintiffs aware of the sale of transaction infavour of 1st defendant and the Revenue authorities also recognized the possession and enjoyment of 1st defendant over the plaint schedule property by way of Ex.B.3 to
B.5 revenue record.
16. The 1st plaintiff examined as Pw-1 and got marked Ex.A.1 dated 06-05-1944 certified copy of deed of settlement for permanent alimony executed by Donda
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Suryanarayana Dora and Donda Narayana Dora in favour of Donda
Mahalakshamamma, Ex.A.2 dated 06-05-1944 certified copy of Edurugada Dastaveju executed by Donda Mahalakshamamma in favour of Donda Suryanarayana Dora and
Donda Narayana Dora, Ex.A.3 Legal notice dated 12-08-2011 got issued by plaintiffs to 1st defendant and Ex.A.4 dated 29-08-2011 reply notice got issued by 1st defendant to plaintiffs. Though plaintiffs claimed as per their pleadings that plaint schedule property is the absolute property of Donda Suryanarayana Dora and Donda Narayana
Dora but the evidence of 1st plaintiff as Pw-1 goes to show that,the father of plaintiffs and their brothers got the plaint schedule property from their ancestors and the paternal grand-father of plaintiffs and his brothers did not partition their properties by the date of death of Bulli Dora. It is clear from the evidence of Pw-1 as well as the recitals of Ex.A.1 and Ex.A.2 the plaint schedule property is the ancestral property of plaintiffs 1 and 2 and no partition in respect of the same took place till the death of plaintiffs 1 and 2 paternal grand-father and his brothers. Donda Suryanarayana Dora ,
Donda Narayana Dora and Donda Venkayya Dora who is the husband of
Donda Mahalakshamamma have got joint right and possession over the plaint schedule property. It is also clear that, Donda Venkayya Dora died while he was minor leaving behind his wife Donda Mahalakshamamma and in order to provide maintenance to her Donda Suryanarayana Dora and Donda Narayana Dora conveyed the plaint schedule property through original of Ex.A.1 deed with a limited interest over the same. Donda Mahalakshmamma in turn executed original of Ex.A2 deed in favour of Donda Suryanarayana and Donda Narayana Dora by agreeing the limited interest. No doubt the recitals of Ex.A.1 and Ex.A.2 deeds shows that limited interest over the plaint schedule property was conveyed to Donda Mahalakshamamma.
17. The 7th defendant who is examined as Dw-1 got marked Ex.B.1 registered sale deed dated 08-08-1985, Ex.B.2 registered sale deed dated 24-02-1997 stands in the
Page 15 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram name of 1st defendant, Ex.B.3 pattadar pass book to stands in the name of 1st defendant, Ex.B.4 dated 19-04-2016 1-B namuna obtained through Meeseva and
B.5 dated 19-04-2016 1-B naumana obtained from Meeseva. The defendants 5 to 11 also examined one of the attestors of registered sale deeds Ex.B.1 and B.2 as Dws 2 and 3, Dw-4 is the neighbouring land owner of the plaint schedule property on their behalf in support of their claim.
18.It is clear from the evidence of Dws 1 to 4 coupled with Ex.B.1 to B.5 documents, during the life time of Donda Mahalakshamamma in terms of Ex.B.1 and
B.2 registered sale deeds she sold the plaint schedule property in favour of 1st defendant. The 1st defendant was in possession and enjoyment over the plaint schedule property and the same was recognized by the revenue authorities in terms of Ex.B.3 to B.5 Revenue record. The defendants 5 to 11 right from the inception of their written statement and through their evidence contended that the plaint schedule property which was conveyed to Donda Mahalakshamamma in terms of original of
Ex.A.1 deed towards her maintenance becomes absolute right but not limited right and the restriction imposed in Ex.A1 and Ex.A.2 deeds have no effect over the same.
Donda Mahalakshamamma who being the absolute owner of plaint schedule property in terms of the original of Ex.A.1 deed have got every right to deal with the said property and in terms of Ex.B.1 and B.2 sale deeds she sold the plaint schedule property to 1st defendant and the 1st defendant is having absolute right over the plaint schedule property and after his death they being their legal heirs got right and title over the plaint schedule property.
19. Thus plaintiffs claimed Donda Mahalakshamamma has got limited interest over the plaint schedule property in terms of the original of Ex.A.1 and A.2 deeds and limited interest conferred on her will not become absolute right. On the other hand, it is the contention of defendants 5 to 11 that Donda Mahalakshamamma has got
Page 16 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram pre-existing right over the plaint schedule property as her husband Donda Varahalu
Dora along with Donda Suryanarayana Dora and Donda Narayana Dora having joint rights over the plaint schedule property and in terms of the original of Ex.A.1 deed the limited interest conveyed to Donda Mahalakshamamma in respect of plaint schedule property towards her maintenance will become absolute right inspite of original of
Ex.A.2 deed.
20.In order to find out the whether property conveyed to Donda
Mahalakshamamma under the original of Ex.A.1 deed become absolute property of
Donda Mahalakshamamma inspite of the restriction imposed and also as per original of Ex.A.2 deed, for better appreciation the relevant provision under the Hindu
Succession Act, 1956 and the decisions rendered by Hon'ble Apex Court on this aspect are looked into:
Section 14 - property of female Hindu to be her absolute property:
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner there of and not as a limited owner.
(2) Nothing contained in Sub-Section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property. (Emphasis added).
Page 17 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
V. Tulasamma & Ors
Vs.,
V. Sesha Reddi (Dead) By L. Rs
(1977) 3 SCC 99
Their lordship while interpreting sections 14(1) and (2) of
Hindu Succession Act held that, sub-section (2) of Section 14
is in the nature of a proviso or explanation to Section 14(1). It
must be construed strictly and must be confined to the cases
where property is acquired by a Hindu Female for the first
time as a grant without any pre-existing right under a gift, will,
instrument, decree, order or award, the terms of which
prescribed a restricted estate in the property.
Where property is acquired by Hindu female at a partition
or in lieu of her maintenance by virtue of pre-existing right
and such acquisition would not be within the scope of sub-
section (2), but within scope of subsection (1).
In fact, even if the instrument were silent as to the
nature of the interest given to the widow, in the property
given to her in virtue of a pre-existing right, she would have
no more than a limited interest in the property under
customary Hindu Law and hence a proviso in the instrument
prescribing that she would have only a limited interest merely
records the true legal position, and would not attract sub-
section (2) but would be governed by sub-section (1).
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Sadhu Singh
Vs.,
Gurudwara Saheb Narike
(2006) 8 SCC 75
Their lordship held that, the essential ingredients in
determining whether sub-Section (1) of Section 14 of the Act
would come into play or the antecedents of the property, the
possession of the property as on the date of the Act and the
existence of a right in the female over it, however limited it may
be, any acquisition of possession of property (not right) by a
female Hindu after the coming into force of the Act, cannot
normally attract Section 14(1) of the Act. It would depend on
the nature of the right acquired by her. If she takes it as an heir
under the Act, she takes it absolutely. If while getting
possession of the property after the Act, under a devise, gift or
other transaction, any restriction is placed on her right, the
restriction will have play in view of Section 14(2) of the Act.
Jupudy Pardhasarathy
Vs.,
Pentapati Rama Krishna and Others
(2016) 2 SCC 56
Their lordship held that, Property given to Hindu woman in lieu
of her pre-existing right of maintenance, even if by will creating
only life interest, same would get transformed into absolute
right by operation of S. 14(1). Even in absence of express
words in will that life interest granted to her is in lieu of her
maintenance, if same can be gathered from nature of
arrangements made in will for her enjoyment of the property
and if no one disputed the arrangement pursuant to which she
continued to enjoy the property in lieu of maintenance, then no
pleading and further proof required to substantiate the fact.
Page 19 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
Santhosh
Vs.,
Saraswathi
(2008) 1 SCC 465
Their lordship held, section 14(2) is confined to the cases where
property is acquired by a Hindu Female for the first time as a
grant without any pre-existing right under a gift, will,
instrument, decree, order or award, the terms of which
prescribed a restricted estate in the property.
Where the property is acquired by a Hidnu female towards her
right of maintenance inter-alia it is in virtue of pre-existing right
and such an acquisition would not be within the ambit of
section 14(2). Even in the instrument or decree or order or
under an award allotting the property to her prescribed a
restricted estate of the property.
With this back ground coming to the case on hand, as discussed the evidence of
Pw-1 coupled with the recitals of Ex.A.1 and Ex.A.2 deeds goes to show that the plaint schedule property is the ancestral property of Donda Suryanarayana Dora, Donda
Narayana Dora and Donda Varahalu Dora. After the death of the Donda Varahalu
Dora, Donda Suryanarayana Dora and Donda Narayana Dora conveyed the plaint schedule property under original of Ex.A.1 deed to Donda Mahalakshmamma towards her maintenance by conferring life interest. Thus, Donda Mahalakshmamma has got pre-existing right over the plaint schedule property even prior to execution of the original Ex.A.1 deed. Though the recitals of original Ex.A.1 deed confers limited interest over the plaint schedule property to Donda Mahalakshmamma and in turn she also executed the original of Ex.A.2 deed but it will not defeat her absolute right over the plaint schedule property in view of Section 14(1) of the Hindu Succession Act. The exception as envisaged in section 14(2) of Hindu Succession Act not applicable to the
Page 20 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram case on hand.
21. The learned counsel for plaintiffs in support of their contention placed reliance upon decisions reported in:
Shivdev Kaur (Died ) by L.Rs and others
Vs.,
R.S.Grewal
Civil Appeal No.5063/5065/2005
When question arosed with regard to property conveyed by
father of Hindu female under will towards her maintenance as
she became widow at a very young age. When it is challenged
on the ground that she only got limited interest as per the will.
His lordship held that, if a Hindu female has been given only a
life interest, through will or gift or any other document
referred to in Section 14 of the Act 1956 Act, the said rights
would not stand crystallized into absolute owner-ship as
interpreting the provisions to the effect that she would
acquired absolute owner-ship of the title into the property by
virtue of the provisions Section 14(1) of the Act, 1956, the
provisions of Section 14 (2) and 30 of the Act, 1956 would
become otiose. Section 14(2) carves out an exception to the
rule provided in Sub-section (1) thereof, which clearly
provides that if a property has been acquired by a Hindu
female by a Will or gift, giving her only a life interest, it would
remain the same even after commencement of the 1956 Act,
and such a Hindu female cannot acquire absolute title.
Kothapalli Venkateswara Rao
Vs.,
Myneni Raghavamma and others
second appeal No.1239 of 2017 dated 26-06-2019 Hon'ble court of A.P.
The father and brother of Abhineni Durgamma executed
registered gift deed dated 20-09-1925 in respect of
schedule properties in addition to properties already given
to her by her in laws towards her maintenance with a
limited right of enjoyment during her life time. When the
Page 21 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
same being challenged, when it is contended that the
properties conveyed to Durgamma has become absolute
properties then her lordship held that by conforming
judgment of the lower court's that it will not become
absolute property of Durgamma in view of Section 14(2) of
Hindu Succession Act.
The decisions relied upon by learned counsel for plaintiffs not applicable to the present set of facts as in the case on hand as already discussed that Donda
Mahalakshamamma has got pre-existing right over the plaint schedule property and the same was conveyed to her in lieu of her maintenance after the death of her husband while he was minor. The property conveyed to Donda Mahalakshamamma will become absolute property in terms of Section 14(1) of Hindu Succession Act.
The learned counsel for defendants in support of their contention placed reliance upon decision reported in:
Shyam Narayan Singa and Another
Vs.,
Rama Kant Singa & Others
Civil Appeal No.7486-7487 of 2008 decided on 08-11-2017 SC.
His lordship while interpreting Section 14(1) and (2) of Hindu
Succession Act held that, an instrument merely declares or
recognises a pre-existing right, such as a claim to maintenance
or partition or share to which the female is entitled, it enlarged
into an absolute one by force of Section 14(1) and the
restrictions placed, if any, under the document would have to be
ignored. Thus where a property is alloted or transferred to a
female in lieu of maintenance or a share at partition, the
instrument is taken out of the ambit of Sub-section (2) and would
be governed by Section 14(1) despite any restrictions placed on
the powers of the transferee. It is no longer open to anyone now
to contend that she had only a 'limited' ownership in the said
property and not a 'full' owner-ship, the concept of limited
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owner-ship having been abolished altogether, with effect from
the coming into operation of the Act. There is a finding recorded
by the High Court that the property was recorded in the name of
Jaichha Kuwar, who was in possession as on the date when
Hindu Succession Act came into force. Thus she was in
possession and enjoyment of the property, and there is nothing
on record to show that she was dispossessed at any point of
time. She has a acquired full owner-ship right over the property
in question.
The decision relied upon learned counsel for defendants squarely applicable to the case on hand. As already discussed after coming into force of Hindu Succession
Act 1956 the plaint schedule property was in possession and enjoyment of Donda
Mahalakshamamma in terms of the original of Ex.A.1 deed as it was conveyed to her in lieu of her maintenance. It is also clear that over the said property her husband and his brothers have got joint rights thus Donda Mahalakshamamma got pre existing right over the plaint schedule property even prior to the original of Ex.A.1 transaction and in view of Section 14(1) of Hindu Succession Act Donda Mahalakshamamma became absolute right over the plaint schedule property.
Donda Mahalakshamamma being absolute owner of the plaint schedule property while she was in possession and enjoyment sold the same to 1st defendant under Ex.B.1 and B.2 registered deeds. The evidence of Dws 2 to 4 coupled with
Ex.B1 and B.2 registered sale deeds established the right and title of 1st defendant over the plaint schedule property. The possession and enjoyment of 1st defendant over the plaint schedule property is recognized by revenue authorities in terms of Ex.B.3 to to B.5 revenue record. The plaintiffs relied upon Ex.A1 deed which is the certified copy and except mention in the relevant portion of pleading that, the original of the same is lost but failed to establish the same and thereby failed to comply the statutory
Page 23 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram requirement to rely upon the secondary evidence in the absence of primary evidence.
22.Thus, the contention of plaintiffs and defendants 2 to 4 over the plaint schedule property have no legs to stand. Accordingly these issues are decided in favour of defendants 1, 5 to 11 as against plaintiffs and defendants 2 to 4.
ISSUE No.5:
23.In view of issue Nos 2 to 4 are decided in favour of defendants 1, 5 to 11 as against plaintiffs and defendants 2 to 4 the plaintiffs and defendants 2 to 4 are not entitle for mesne profits and accordingly this issue is also decided in favour of defendants 1, 5 to 11 as against plaintiffs and defendants 2 to 4.
ISSUE No.6:
24. As issues 1 to 5 are decided in favour of defendants 1, 5 to 11 as against plaintiffs and defendants 2 to 4 they are not entitle for any relief.
In the result, the suit dismissed without costs.
Dictated to the Stenographer Gr-I, transcribed by her, corrected and
pronounced by me in the open Court, this the 23 rd day of July, 2021.
Senior Civil Judge
Chodavaram
APPENDIX OF EVIDENCE
NUMBER OF WITNESSES EXAMINED FOR PLAINTIFFS
P.W.1: Donda Govardhan
NUMBER OF WITNESSES EXAMINED FOR DEFENDANTS
Dw-1: Donda Narayana Murthy Dw-2: Battula Appa Rao Dw-3: Garikipati Venkata Ramana Dw-4: Donda China Thatayya Dw-5: Donda Ravi Kumar
Page 24 of 24 of Fair Judgment in O.S.No.46/2013 dated.23.07.2021 on the file of Senior Civil Judge’s Court, Chodavaram
NUMBER OF DOCUMENTS MARKED FOR PLAINTIFFS
Ex.A.1: Certified copy of the document dated 06-05-1944 number 1542/1944 titled as life time maintenance settlement deed.
Ex.A.2: Certified copy of the document dated 06-05-1944 number 1543/1944 titled as counter document.
Ex.A.3: Office copy of registered lawyer's notice dated 12-08-2011.
Ex.A.4: Original reply lawyer's notice dated 29-08-2011.
NUMBER OF DOCUMENTS MARKED FOR DEFENDANTS
Ex.B.1: Sale deed dated 08-08-1985.
Ex.B.2: Sale deed dated 24-02-1997.
Ex.B.3: Pattadar pass book in the name of 1st defendant
Ex.B.4: 1-B namuna dated 19-04-2016 obtained through meeseva.
Ex.B.5: 1-B namuna dated 19-04-2016 obtained through meeseva.
Senior Civil Judge
Chodavaram