1 O.S.no.33 of 2012
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF OFFENCES
UNDER THE SCHEDULED CASTES AND SCHEDULED TRIBES (POA)
ACT, 1989 -CUM-III ADDL. DISTRICT & SESSIONS JUDGE:
SANGAREDDY
PRESENT: Sri P. Raju Spl. Judge for SC/STs (POA) Act -Cum- III Additional District & Sessions Judge
Sangareddy
MONDAY, THE 17TH DAY OF OCTOBER, 2022
O.S NO. 33 OF 2012
BETWEEN:
Vadla Nagamani W/o Vadla Anjaiah Aged about 52 years, Occ: Housewife R/o MIH-1959, Nalagandla village of Seri Lingampally Mandal, R.R. District.
... Plaintiff.
AND
1.Vadla Shobha W/o Anjaiah Aged about 40 years, Occ: House wife
2.Vadla Anjaiah S/o late Vadla Brahmaiah Aged about 50 years, Occ: Agriculture Both are R/o nandigama village of Patancheru Mandal.
3.Association of Lady Enterpreneurs of A.P. ( ALEAP) Rep. By its President and Chairmen Smt. K. Ramadevi W/oMuralidhar Rao Aged about 54 years, Occ: Business R/o H.No.8-3-677/6 Srikrishna Devaraya Nagar, Yellareddyguda Hyderabad.
… Defendants This suit came up before the court in the presence of Sri Joshi Narayan Rao, K. Vijendra Kumar, Advocates for the plaintiff and of Sri K. Krishna Rao, Advocate for the defendant nos., 1 and 2 and of Sri G.Raghavender, Advocate for defendant no.,3 and upon perusal material papers on record and upon hearing both the learned counsel and having stood over for consideration till this day, this Court delivered the following:- 2 O.S.no.33 of 2012
J U D G M E N T
1. This suit is filed by the plaintiff against defendant nos., 1 to 3, for grant of a decree for partition of the schedule 'A' to 'D' properties into two equal shares, allotment of one share to the plaintiff and to put her to respective possession with metes and bounds, to declare the gift settlement deed, document no.,6686 of 2002,dated 17-10-2002 as null and void to the extent of half share of the plaintiff, to declare the registered sale deed vide document no., 2267 of 2012, dated 22-02- 2012 as null and void to an extent of half share of the plaintiff, to declare the registered Gift Settlement deed nos., 1429 of 1991, dated 18-04-1991 and 1515 of 1991, dated 25-04-1991 as null and void to an extent of half share of the plaintiff, to declare the Will deed document no., 23 of 1995, dated 28-12-1995 as null and void and not binding on the plaintiff, and to direct mutation of the name of the plaintiff as owner and possessor of the property, in respect of her shares by correcting the respective revenue records, by awarding costs of the suit and consequential reliefs.
2.The suit schedule properties, are as follows:
SCHEDULE – A PROPERTY
Item nos., 1 and 2 of schedule -A properties:
Land in Sy.no., 123/UU admeasuring 0-04 guntas, Sy.no.,125/AA/2 admeasuring 0-10 guntas, situated at Nandigama village of Patnacheru Mandal, Medak District, bounded by:
3 O.S.no.33 of 2012
North : Land of A. Kista Reddy,
South: Land of Vittalaiah,
East: Land of Brahmaiah,
West : Land of Adivaiah.
Item nos., 3 and 4 of schedule “A” properties:
Land in Sy.no., 416/E.2 admeasuring Ac.0-20 guntas, Sy.No.416/UU admeasuring Ac0-07 guntas, situated at Nandigama village of patancheru Mandal, Medak District, bounded by:
North : Road,
South: Land of Vittalaiah,
East: Land of Sri Ramulu,
West :School.
SCHEDULE 'B' PROPERTY
Land in Sy.no.,450/E/2, admeasuring Ac.2-16 guntas, situated at Nandigama village of Patancheru Mandal, Medak District, bounded by
North : Land of Kyasaram Ramulu,
South: Land of Mogulaiah,
East: Land of Akula Vishwanatham,
West : Land of Mogulaiah.
SCHEDULE 'C' PROPERTY
Land in Sy.no.,468/A/2 admeasuring Ac.1-24 ½ guntas, situated at Nandigama village of Patancheru Mandal, Medak District, bounded by:
North : Land of Laxminarayana, 4 O.S.no.33 of 2012
South: Road,
East:Land of Laxminarayana,
West : Land of Kummari Vittalaiah.
Land in Sy.no., 468/A/2, acres 0-21 guntas, situated at Nandigama village of Patancheru Mandal, Medak District, bounded by:
North : Land of Laxminarayana,
South: Road,
East: Land of Kuvuri Sattaiah,
West : land of Adivaiah.
SCHEDULE 'D' PROPERTY
Residential house bearing no., 1-5, admeasuring 100-0 Sq. yards situated at Nandigama village of Patancheru Mandal, Medak District, bounded by:
North : Road, south : Portion of Ramaswamy,
East: Portion of Bramha chary, Goverdhan, Sudhakar,Ramaswamy,
West : 8' 00” Seri and house of Kammari Narsimulu .
3. The brief averments of the plaint filed by the plaintiff, against the defendants, are that:
(i) Originally, one Vadla Venkanna was the pattedar and possessor of the properties in Sy. Nos., 123, 125/AA, 416/E2, 450, 468 and Kistamma was pattedar of the land in Sy.no., 416/AA of Nandigama village, Patancheru Mandal. V. Venkanna died leaving behind him, his two sons, namely, Adivaiah and the father of the plaintiff and 5 O.S.no.33 of 2012 defendant no.,1, namely V. Brahmaiah. After death of the said Vadla
Venkanna, the land devolved in the name of his elder son Vadla Advaiah as Kartha of the family and got mutated his name as pattedar of the said lands.
(ii) Vadla Kistanna died leaving behind his wife, who sold the said land to Adivaiah and the father of the plaintiff- Brahmaiah and they got mutated their names as pattedars in the revenue records.
(iii) The marriage of the plaintiff was performed about 44 years back. The marriages of defendant nos., 1 and 2 was performed in the year 1979 at Kyasaram village. Defendant nos., 1 and 2 stayed at
Kyasaram village. The welfare of the plaintiff and defendant no.,1 was taken care by their father. The plaintiff and defendant no.,1 are the legal heirs and successors of the estate and defendant no.,1 residing in the house bearing no., 1-5, belonging to their father.
(iv) The plaintiff and defendant no.,1 are the coparceners and defendant no.,1 is providing share in the crop from the schedule lands till Khareef 2011 and, thereafter, stopped giving usufructs derived from the schedule property. The plaintiff went and demanded defendant no.,1, on 05-03-2011, for her share, for which defendant no.,1 stated that their father Vadla Brahmaiah transferred the properties in her name. As such, the plaintiff made an application to the Tahsildar,
Patancheru for issuance of revenue records. On 30-04-2011, she found 6 O.S.no.33 of 2012 that the name of defendant no.,1 was recorded as pattedar over the schedule property. Therefore, the plaintiff got issued public notice in
Eenadu daily Medak edition, on 13-03-2012, to the general public not to deal with the suit schedule lands.
(v) The plaintiff has got equal right over the schedule property and, defendant no.,1, in order to deprive the rights of the plaintiff, defendant no.,1, sold item nos., 3 and 4 of 'A' schedule properties to defendant no.,3, through sale deed document nos., 2267 of 2012,dated 22-02-2012, on 15-03-2012, basing on the gift deed document nos., 6686 of 2002, dated 17-02-2002 got from her father, keeping the plaintiff in dark. The said gift deed was obtained from the father of the plaintiff and defendant no.,1, looking to the mental condition of the father of the plaintiff and defendant no.,1.
(vi) The plaintiff questioned the same and demanded her half share, which was refused by defendant nos.,1 and 2. The plaintiff also went to defendant no.,3, on 16-03-2012. Therefore, it is prayed for grant of the relief, by the plaintiff.
(vii) The plaintiff paid Court fees for item nos., 3 and 4 of 'A' schedule property, under Section 34(2) of Andhra Pradesh Court fee and
Suits Valuation Act and for remaining properties she also paid separate
Court fee, for other reliefs claimed by her.
7 O.S.no.33 of 2012
4.(A)(a) Defendant nos., 1 and 2 filed their written statement and
additional written statement, denying the averments of the plaint filed
by the plaintiff, putting of the plaintiff to strict proof of the said allegations and praying for dismissal of the suit filed by the plaintiff.
(b) The brief averments of the written statement filed by defendant nos., 1 and 2, admitting the original ownership of the schedule property by Vadla Venkanna as pattedar and possessor, are that :
(i) The marriage of the plaintiff was performed about 44 years back, prior to commencement of Hindu Succession ( Amendment )Act of 1956 (Act 39 of 2005). Therefore, the only Act prevailing is Hindu
Succession Act, 1956. During the lifetime of father, the daughter has no right to claim any share and if the properties are left by the father, the daughter can claim share. By the date of death of their father there are no properties standing in his name. When they were already transferred by an instrument, then the daughter has no right over the property. Therefore, the plaintiff cannot take claim any right over the property. During the lifetime of late Brahmaiah, the entire properties were transferred in the name of defendant no.,1, by way of Registered
Gift Settlement deeds.
(ii) Since there were no male children to Brahmaiah, himself and his wife, kept defendant no.,1, in their house. There was custom 8 O.S.no.33 of 2012 prevailing in the Vadla Community bringing illatom son-in-law in the absence of sons. Therefore, Vadla Brahmaiah approached the parents of defendant no.,2 at Kyasaram village and requested to give him as illatom son -in-law and the marriage of defendant no.,1 was took place with defendant no.,2 and they started staying at Nandigama village and looking after the entire family affairs and assisted Vadla Brahmaiah in the family profession. This fact is within the knowledge of the plaintiff and she suppressed the said fact.
(iii) Since defendant no.,2 assisted Vadla Brahmaiah, he was treated as illatom son-in-law. The father name of defendant no.,2 was shown as Vadla Brahmaiah in all records, including Voter list, ration card and other records. Thus, it shows that defendant no.,2 was brought as illatom son -in-law and he rendered services to the family and looked after the welfare of Vadla Branhmaiah and his wife, as parents, the said fact is also suppressed by the plaintiff.
(c) Since defendant no.,1 is owner and possessor of the schedule properties, she is entitled to sell the same and the plaintiff has no right, title or interest in respect of it. Though the properties were not available for partition, as on the date of death of Vadla Brahmaiah and prior to it, the properties were already transferred in the name of defendant no.,1 by the registered documents, the plaintif,f by suppressing the said facts, filed the suit with vested interest.
9 O.S.no.33 of 2012
(d) There is no cause of action for the plaintiff and it is create one.
The Court fee paid by the plaintiff is not correct and it is not paid as per valuation of the property.
(e) The plaintiff cannot challenge the gift settlement deed, dated 17-10-2002, to an extent of acres 0-05 guntas in Sy.no.,125/AA, acres 0- 04 guntas in Sy.no.,123/U, acres 0-01 ½ guntas in Sy.no.,125/E, acres 0- 20 guntas in Sy.no., 416/U, acres 0-07 guntas in Sy.no.,416/AA, total extent of acres 0-37 ½ guntas, situated at Nandigama village, as she is not the person, who executed the said document. Pursuant to the gift settlement deed, dated 17-10-2002, mutation was effected in the name of defendant no.,1, as owner and possessor, as it was accepted and acted upon by the parties. Therefore, the plaintiff has no right to seek cancellation of the said gift settlement deed and subsequent sale deed document dated 22-02-2012.
(f) (i) Vadla Brahmaiah, during his lifetime, as owner and possessor of the land also executed registered gift settlement deed document no.,1429 of 1991,dated 18-04-1991, in an extent of acres 1- 10 guntas, situated at Nandigama village and the same was acted upon.
Since it was executed in the presence of P. Balaram Reddy and
U.Nagaiah, basing on it, the name of defendant no.,1 was mutated in the revenue records and pattedar pass book and title deeds were issued in her name and it is known to the plaintiff.
10 O.S.no.33 of 2012
(ii) Vadla Brahmaiah also executed gift settlement deed document no.,1559/1991, dated 25-04-1991 in an extent of acres 1-08 guntas, situated at Nandigama village, that is, item no.,B of the schedule property, in the presence of Bhooma Reddy and another, gift settlement deed document no., 5913 of 1995,dated 29-12-1995 in an extent of acres 1-03 guntas in Sy.no., 468/A, that is, item no.,1 of the schedule “C” property, in the presence of P. Balaram Reddy and R. Narasimha
Reddy and the same were acted upon him. Basing on the same, the name of defendant no.,1 was mutated in the revenue records and pattedar pass book and title deed were issued in her name and it is known to the plaintiff.
(iii ) Vadla Brahmaiah also executed Will-deed dated 29-12-1995 in an extent of acres 0-04 guntas in Sy.no., 123/AA, to an extent of acres 0- 20 guntas in Sy.no., 416/U, to an extent of acres 1-35 guntas in Sy.no., 209/2, an extent of acres 0-05 guntas in Sy.no.,125/A, situated at
Nandigama village, apart from residential house bearing no., 1-5 situated at Nandigama village, in the presence of P. Balaram Reddy and
R. Narasimha Reddy. Vadla Brahmaiah signed the said Will deed after knowing the contents of Will deed and the witnesses signed on the Will deed in the presence of Vadla Brahmaiah.
(g) During lifetime of Vadla Brahmaiah, he himself filed an application before Grampanchayath, on 09-12-1999, requesting the 11 O.S.no.33 of 2012 authorities to incorporate the name of defendant no.,1, as defendant no.,1 became absolute owner and possessor of the property including house no.,1-5 of Nandigama village. At the time of death of Vadla
Brahmaiah, he was hale and healthy. As on the date of death of Vadla
Brahmaiah, there was no property in the name of him and the entire properties were gifted and mutation was effected in the name of defendant n o.,1 , which is known to the plaintiff.
(h) Originally, the land in Sy.no., 416, to an extent of acres 8-05 guntas of Nandigama village was chowtha inam land. Inamdars Vadla
Venkanna and Vadla Kistanna and his brother Vadla Pedda Venkanna have partitioned their property into two equal shares and Vadla Padda
Venkanna got acres 0-21 guntas out of acres 1-01 guntas. It was succeeded by his only son Vadla Brahmaiah.Similarly, an extent of acres 0-06 guntas in Sy.no.416 belongs to Vadla Adivaiah, as he was issue less, it was devolved upon Vadla Bramaiah. Thus, Vadla Brahmaiah became owner of acres 0-27 guntas and he conveyed the same in favour of defendant no.,1, through gift settlement deed,dated 17-10- 2002.
(I) Thus, defendant nos., 1 and 2 became absolute owners of land to an extent of acres 0-27 guntas pursuant to the gift settlement deed document no., 6686 of 2002, dated 17-10-2002.The father of defendant no., 1 was also granted Occupancy Rights Certificate (ORC) by the Inams 12 O.S.no.33 of 2012
Tribunal cum Revenue Divisional office, Sangareddy in File no.,
B3/Inams/23/1998 in respect of acres 0-27 guntas in Sy.no., 416/U, basing on the ORC., the father of defendant no.,1 became the owner and possessor and the Mandal Revenue Officer has mutated the name of the father of defendant no.,1 stating that the said property is self acquired property of the father of defendant no.,1, who executed the gift settlement deed, dated 17-10-2002 and, therefore, defendant nos., 1 and 2 became absolute owners and possessors of the schedule property and sold the same in favour of defendant no.,3 for which the plaintiff has no right to challenge the sale deed executed by defendant no.,1, in favour of defendant no.,3.
(B) (a) Defendant nos., 1 and 2 also filed their additional written statement submitting that defendant no.,1 has rightly sold the property in favour of defendant no.,3 and delivered vacant possession of it. After lapse of 12 years, the plaintiff is seeking for cancellation of gift settlement deed,executed by Vadla Brahmaiah. The period for cancellation of such document to any person is within three years from the date of execution of the document. The suit filed by the plaintiff after 12 years is barred by limitation.
(b) During life time of Vadla Brahmaiah, the properties were transferred in the name of defendant no.,1. Therefore, the plaintiff cannot claim right over it, existing as on the date of death of Vadla 13 O.S.no.33 of 2012
Brahmaiah.
© (i) Defendant no.,3 filed written statement, separately, with the same avermnets as pleaded by defendant nos., 1 and 2 in their written statement.
(i) It is further submitted by defendant no.,3 that defendant no.,3 verified the document, executed by Vadla Brahmaiah, that is,the registered gift settlement deed,dated 17-10-2022, in favour of defendant no.,1, in respect of land in survey no., 416. Therefore, defendant no.,3 purchased the property through registered sale deed,
dated 02-02-2012, from defendant nos., 1 and 2. The intention of the
plaintiff is to stop the development activities in the land purchased by defendant no.,3. Therefore, it is prayed for dismissal of the suit filed by the plaintiff.
5.(a) In view of the rival pleadings of the parties, the following issues have been framed for trial, on 24-09-2012:
(i) Whether the plaintiff is entitled for partition and separate possession of the suit schedule properties?
(ii) Whether the plaintiff is entitled to declare the
Registered Gift Settlement Deed document no., 6686 of 2002,
dated 17-10-2002 as null and void to the extent of her half
share?
14 O.S.no.33 of 2012
(iii) Whether the plaintiff is entitled to declare the
Registered sale deed no.,2267 of 2012,dated 22-02-2012 as null
and void to the extent of her half share?
(iv) Whether the plaintiff is entitled for the relief to
mutate her name as owner and possessor of the suit schedule
properties in respect of her share by correcting the revenue
records?
(v) To what relief?
(b) the following additional issues have been framed, on 12-07- 2013:
(i) Whether the plaintiff is entitled to seek for cancellation
of registered gift settlement deed no., 1429 of 1991,dated 18-
04-1991, registered gift deed no.,1515 of 1991,dated 25-04-
1991 and registered gift settlement deed no., 5913 of 1995,
dated 29-12-1995 as null and void to the extent of her half
share?
(ii) Whether the registered will deed document no., 23 of
1995, dated 29-12-1995 is null and void and not binding on the
plaintiff?
(iii) Whether the suit is barred by limitation?
(iv)To what relief?
15 O.S.no.33 of 2012
6.(a) The plaintiff, in support of her case, examined herself as P.W.1 ( Vadla Nagamani) and got marked Exs.A.1 to A.10, documentary evidence. P.W.1 also examined two more witnesses P.W.2 ( Vadla
Janardhan Chary) and P.W.3 ( Naikoti Narshimulu) .
(b) After closure of the evidence of the plaintiff, the defendants examined defendant no.,1 as D.W.1( Vadla Shobha) and six (06) more witnesses, D.W.2 (Patlolla Vishnuvardhan Reddy), D.W.3 ( Uppari
Nagaiah), D.W.4 ( Patlolla Laxmi), D.W.5 (R.Narsimha Reddy), D.W.6 ( Vadla Anjaiah) and D.W.7 ( K. Ramadevi), respectively,and got marked
Exs. B.1 to B.32. D.W.6 is defendant no.,2, who is husband of D.W.1.
Since D.Ws.2 and 3 are not examined, their evidence is of no help to the plaintiff and the defendants.
7.(a) After closure of the evidence of both the parties to the suit and after conclusion of the arguments, on 05-09-2022, the suit is posted to to day for judgment.
(b) Written arguments are filed on behalf of the plaintiff and defendant nos., 1 to 3, separately. Perused the written arguments filed by both the parties.
8.(I) (i) The contention of the learned counsel for the plaintiff/P.W.1, by filing the written arguments, is that the schedule properties are ancestral properties of Vadla Brahmaiah and the plaintiff, as one of his daughters, is entitled for half share in the suit schedule properties and, therefore, the documents, under Exs. B.1 to 16 O.S.no.33 of 2012
B.5,executed by late Brahmaiah are not valid to the extent of share of
P.W.1. Therefore, P.W.1 is entitled for half share in the schedule properties and it is prayed for grant of the relief by passing preliminary decree.
(ii) In support of his contention, the learned counsel for the plaintiff/P.W.1 relief on the judgments in the case of A. Raghavamma
and another Vs. A.Chenchamma and another 1 , Shuam Narayan
Prasad Vs. Krishna Prasad and others 2 , Vineeta Sharma Vs.
Rakesh Sharma 3 , Anil Rishi Vs. Gurbaksh Singh 4 , Thulsi and
others Vs.Chandrika Prasad and others 5 , Bhaskar Waman Joshi
(deceased) and others Vs. Shrinarayan Rambilas Agarwal
( deceased) and others 6 , Nagindas Ramdas Vs. Dalpatram
Iccharam alias Brijram and others 7 , M/s Modi Spinning and
Weaving Mills Co., Ltd., and another Vs. M/s Ladha Ram and Co.,
8 , Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and another 9.
(II) (i) on the other hand, it is the contention of the learned counsel for defendant nos., 1 and 2/ D.Ws. 1 and 6 that during the life time of Vadla Brahmaiah, he executed Exs. B.1 to B.4 Gift Settlement 1AIR 1964 SUPREME COURT 136 2(2018) 9 Supreme Court Cases 646 32020 (9) SCC page 1 4AIR 2006 SUPREME COURT 1971 5AIR 2006 SUPREME COURT 3359 6AIR 1960 SUPREME COURT 301 7AIR 1974 SUPREME COURT 471 8AIR 1977 SUPREME COURT 680 9AIR 1983 SUPREME COURT 462 17 O.S.no.33 of 2012 deeds and Ex.B.5, Will deed in favour of D.W.1, prior to 20-12-2004 and the said documents cannot be questioned by the plaintiff/P.W.1.
Therefore, the plaintiff/P.W.1 is not entitled for grant of the relief, as prayed for, though D.W.1 is younger sister to P.W.1 and Vadla Brahmaiah is their father.
(ii) In support of his contention, the learned counsel for defendant nos., 1 and 2, relied on the judgments, in the case of Yadla Venkata
Subbamma and others Vs. Yadla Punnamma and others 10 , Mst.
Sirtaji Vs. Algu Upadiya 11 , Commissioner of Wealth-tax, Kanpur
etc.,Vs. Chander Sen etc., 12 , Musini Leela Prasad Vs.Musini
Bhavani and others 13 ,Moturu Umadevi and others Vs. Bandaru
Himmath Venkata Kumar and others 14 , Muhammad Hussain Vs.
Babu Kishwanan Sahari 15 , Samrathi Vs. Parasuram 16 ,
Vigneswarapu Jaggaraju (died) and others Vs. Gitta Seetha
Ratnam and others 17 , Pagadala Bharathi and another Vs. J.
Radha Krishna 18 , Gouranga Sahu and others Vs. Maguni Devi
and others 19 , Tirath Vs. Manmohan Singh and others 20 ,
Gogineni Danunjaya Vs. Gogineni Anusha 21 ,Pagadala Bharathi
10 2012 (3) ALD 88 11(1937) 12 Luck, 273. ( Hindu Law Mulla, Page 288). 12AIR 1986 SUPREME COURT 1753 131995 (1) ALD 456 142018 (1)ALD 656 15(1937) ALL 65 (Hindu Law Mulla, 1960 edition page 319) 16AIR 1975 Patna, Page-140 172007 (4) ALT 404 182013 (20 ALD 373 19 AIR 1991 ORISSA 151 20AIR 1981 PUNJAB AND HARYANA 174 21 2020 (6) ALT 198(AP) 18 O.S.no.33 of 2012
and another Vs. J. Radha Krishna 22 , Gorachand Mukherjee Vs.
Smt. Malabika Dutta 23 , Renikuntla Rajamma (d) by L.Rs Vs.
K.Sarwanamma 24 , Ajjapalli Papaireddy and another Vs. Ajjapalli
Narayanareddy and another 25 , Asokan Vs. Lakshmikutty 26 ,
Surendra Kumar Vs. Nathulal 27 , Nadendla Kotamma and others
Vs. Nadendla Mallaiah ( died) and another 28 , Neeelamsetti
Kataji Rao and others Vs. Regati Ramaraju 29 , K.L.V. Prasada rao
and others Vs.K.Venkateswara Goud and others 30 , K.
Balakrishna Vs. K. Kamalam and others 31 , G. Shravan Kumar Vs.
D. Srinivas (died) 32 , Prem Singh and others Vs. Birbal and
others 33 , Regati Ramaraju Vs. Neelamsetti Kataji Rao and
others 34 , Vineeta Sharma Vs. Rakesh Sharma 35 , Exl Careers and
another Vs.Frankfinn Aviation Services private Limited 36 .
(ii) The judgment relied upon by the learned counsel for the plaintiff Vineeta Sharma Vs. Rakesh Sharma ((3) Supra), and the judgment relied upon by the learned counsel for the defendant nos., 1 and 2 at (35) Supra) are one and the same.
222013 (3) ALT 467 23AIR 2002 CALCUTTA 26 242014 (0) Supreme (SC) 530 252014 (2) ALT 595 262007 0 Supreme (SC) 1638 27AIR 2001 SUPREME COURT 2040 282014(6) ALD 48 292001 (4) ALT 199 302008 (2) ALD 669 312004 (1) Supreme 169 322014 (6) ALD 220 332006 (0) Supreme (SC) 440 342010 (3) ALT 608 ( D.B) 35 2020 (5) ALD 1 (SC) 362020 (5) ALT 63 (SC) 19 O.S.no.33 of 2012 (III) Issue no.,(ii):, framed on 24-09-2012 and the
additional issue no.,1, framed, on 12-07-2013:
Whether the plaintiff is entitled to declare the Registered Gift
Settlement Deed document no., 6686 of 2002, dated 17-10-2002 as null and void to the extent of her half share? and
Whether the plaintiff is entitled to seek for cancellation of registered gift settlement deed no., 1429 of 1991,dated 18-04-1991, registered gift deed no.,1515 of 1991,dated 25-04-1991 and registered gift settlement deed no., 5913 of 1995, dated 29-12-1995 as null and void to the extent of her half share?
(i) Since both the issues deal relating to gift settlement deeds, executed by late Vadla Brahmaiah, these issues are discussed together and dealt with together.
(ii) Exs., A.1 to A.8 and Exs. B.6 to B.10, documentary revenue records as evidence is produced by both the parties- P.W.1/plaintiff and the defendants, since the relationship between the parties to the suit is not in dispute, it is settled principle of law that possession of property, by one co-sharer belonging to several co-sharers, it shall be deemed that he possessed the entire property, on behalf of other co-sharers, unless there has been a declaration ousting the title of other co-sharers and mutation of name in the revenue records by one co-sharer does not amount to ousting unless there is clear declaration that the title of other cosharers is denied. Thus, merely, revenue record is produced before 20 O.S.no.33 of 2012 the Court, it cannot be said that possession of the property by one co- sharer, on behalf of other co-sharers, such person can be deemed that he possessed the property on behalf of other co-sharers, unless there is clear ousting of other co-sharers by denying the title of other co-sharers.
(iii) Admittedly, the relationship between the parties to the suit is not in dispute. P.W.1 is elder sister of D.W.1. Though it is the case of defendant no.1 that defendant no.,2 is brought as illatom son-in-law to late V. Brahmaiah and in some revenue records. The name of defendant no.,2 has been recorded as son, there is no documentary evidence that defendant no.,2/D.W.6 is adopted son of late Vadla Brahmaiah.
Therefore, the dispute in the suit is in between P.W.1 and D.W.1, who are own sisters and daughters of late Vadla Brahmaiah
(iv) For proper appreciation of the facts of the case, it is just and necessary to reproduce Section 6 of the Hindu Succession Act, as amended by Amendment Act, 39 of 2005 ( for short' the Act'), which reads as follows:
“ 6. Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a)by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son; 21 O.S.no.33 of 2012
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 .
(2) Any property to which a female Hindu becomes entitled by virtue of sub- section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 , his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;...........”
(v) In view of Section 6 of the Act, by birth a daughter became a coparcener on her own right in the same manner as the son. Late Vadla
Brahmaiah died prior to amendment of Section 6 of the Act, as amended by Amendment Act, 39 of 2005. Vadla Brahmaiah died in the year 2002.
Performance of marriage or not to the daughters has no effect under
Section 6 of the Act as amended by Act 39 of 2005, as by birth, she will became a co-parcener.
(vi) It is settled principle of law that a coparcener has no definite share in the co-parcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. So long as on partition an 22 O.S.no.33 of 2012 ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the co-parcenary property treating it to be his separate property, but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a co-parcenary property and the son would acquire interest in that and become a coparcener. After amendment of the Act by Act 39 of 2005, a daughter is as of a son.
(vii) It is pertinent to mention that the first proviso to Section 6 of the Act provides that nothing contained in the sub Section (1) of Section 6 of the Act, shall effect or invalidate any dispossession or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(viii) Admittedly, Exs.B.1 to B.4 and Ex.,B.5 gift deeds are dated 18-04-1991, 25-04-1991, 29-12-1995,17-10-2002 and 29-12-1995,, respectively, which are prior to 20-12-2004, as provided under first proviso to Section 6 of the Act.
(ix) (a) Now, the point that has to be considered, is whether the gift deeds under Exs. B.1 to B.4 and Ex.,B.5 Will-deed attract the first proviso to Section 6 of the Act?
(b) It is settled law that a coparcener can make a gift of his 23 O.S.no.33 of 2012 undivided share in the interest in the coparcener property to any coparcener or to a stranger with prior consent of all the coparceners.
Such gift is legal and valid. During the life time of Vadla Brahmaiah, he executed gift deeds, Exs. B.1 to B.4 and Ex.B.5 Will deed in favour of defendant no.,1. To establish that Exs.B.1, B.2 and B.4 are executed in her favour, not only she produced Exs. B.1,B.2 and B.4, documentary evidence, but also examined wife of one of the attestors under Ex.B.1 and B.3, that is, Balram reddy and daughter-in-law under Ex.B.2 of
Bhama Reddy attestor as D.W.4, who identified the signature of Balram reddy under Exs. B11 and B.13 and Ex.B.12 of Bhama Reddy and also examined D.W.5, who is second attestor of Ex.B.3 and B.5 and the husband of D.W.4 is first attestor under Ex.B.13 and B.15 of them.
(c) D.W.6, who is the second defendant herein and husband of defendant no.,1 admitted that he is not the son of Brahmaiah. D.W.6 testified that Adivaiah and Brahmaiah have partitioned their properties and after partition, the revenue authorities have issues patta certificates in respect of the lands in survey no., 125 and 416 in the name of late
Brahmaiah, who is also called as Vadla peda Brahmaiah. The lands in survey nos., 125 and 416 are Inam lands, which were acquired by the ancestors of late Vadla Brahmaiah, but not purchased by him.
(d) As already discussed, late Venkanna is father of Vadla
Brahmaiah and Adivaiah. Vadla Adivaiah is elder brother to Vadla 24 O.S.no.33 of 2012
Brahmaiah. Since Adivaiah is issue less, and, therefore, the entire property was mutated in the name of Vadla Brahmaiah, who is father of
P.W.1 and D.W.1. Therefore, the proeprty got by late Vadla Brahmaiah is ancestral property till the birth of P.W.1 and D.W.1. But, the movement,
P.W.1 and D.W.1 were born, they got interest in the property of late
Vadla Brahmaiah and became a coparceners. But, in view of settled legal position, the property in the hands of late Vadla Brahmaiah, on partition, as ancestral property and the remaining properties, remained in the hands of late Vadla Brahmaiah. Therefore, it is treated as separate property and such person is entitled to dispossess all coparcenary properties treating it to be separate property. But, late Vadla Brahmaiah after birth of P.W1 and D.W.1, he disposed the properties under Exs. B.1 to B.4, gift deeds, as Kartha of the family and it is in the knowledge of
P.W.1, as she did not deny the execution of Exs. B.1 to B.4 in respect of “A” to “C” schedule properties. Moreover, as the said disposition is prior to 20-12-2004, and, therefore, the plaintiff/P.W.1 cannot question the same.
(e) The categorical version of D.W.1 is that the gift deeds executed, under Exs. B.1 to B.4, were accepted and acted upon and, therefore, P.W.1 cannot question the same. Taking prior consent of P.W.1 by late Vadla Brahmaiah for execution of Exs.B.1 to B.4 is concerned, in the cross examination, P.W.1 did not deny, specifically, about execution of Exs.B.1 to B.4 in favour of D.W.1 by late Vadla Brahmaiah and her 25 O.S.no.33 of 2012 evidence is that she did not know whether her father late Vadla
Brahmaiah executed registered gift deeds in favour of D.W.1, which bears photographs of her father, who is father of D.W.1 with regard to schedule 'A' to 'C' properties. Thus, it clearly goes to show that P.W.1 did not deny, specifically, about Exs. B.1 to B.4 and , therefore, it cannot be said that she did not give prior consent for Exs. B.1 to B.4. Therefore, since Exs. B.1 to B.4 are covered under first proviso to Section 6 (1) of the Act, they cannot be questioned by P.W.1. Moreover, as per Section 14 of the Act the property under Exs. B.1 to B.4 is absolute property of
D.W.1, as there is exception.
(x) Thus, the alienations under Exs. B.1 to B.4, prior to 20-12- 2004, are perfectly valid documents, including the half share of the plaintiff. Late Vadla Brahmaiah, executed Exs.B.1 to B.4 about ten years back prior to his death and the same has been accepted and acted upon by D.W.1, during the life time of Vadla Brahmaiah, and the said Vadla
Brahmaiah never questioned Exs.B.1 to B.4 and that, therefore, P.W.1 has no right to question the same. Therefore, the gift settlement deeds
Exs. B.1 to B.4 cannot be said as null and void documents, to the extent of half share of P.W.1.
(xi) Issue no.,(ii) framed, on 24-09-2012, and additional issue no.,1, framed on, 12-07-2013, are accordingly, answered against the plaintiff/P.W.1 and in favour of the defendants.
26 O.S.no.33 of 2012 (IV) Additional issue no.,(ii), framed, on 12-07-2013:
Whether the registered Will deed document no., 23 of
1995, dated 29-12-1995 is null and void and not binding on the
plaintiff?
(i) For providing Ex.B.5, as per the provisions of Section 68 of the Indian
Evidence Act and Section 63 of the Indian Succession Act, D.W.1 examined D.W.5, who is one of the attestors to Ex.B.5, who identified the signature of Vadla Brahmaiah. Nothing is brought in the cross examination of D.W.5 by the plaintiff/P.W.1 to discredit Ex.B.5 and to create suspicious circumstance over it. Thus, Ex.B.5 is proved that late
Vadla Brahmaiah has already transferred “D” schedule property and item nos., 1 to 3 of “A” schedule property and other properties in favour of D.W.1. Even Ex.B.5 is prior to 20-12-2004, and that, therefore, since first proviso to Section 6 (1) of the Act provides testamentary disposition of the property, in view of Ex.B.5, P.W.1 cannot question Ex.B.5, particularly, as per Section 14 of the Act, D.W.1 is full owner of the property under Ex.,B.5, as there is no exception.
(ii) In this regard, the learned counsel for defendant nos., 1 and 2 , relied on the judgments, in the case of Renikuntla Rajamma (d)
by L.Rs Vs. K.Sarvanamma, Ajjapalli Papaireddy and another Vs.
Ajjapalli Narayanareddy and another, Asokan Vs. Lakshmikutty,
Nadendla Kotamma and others Vs. Nadendla Mallaiah ( died)
27 O.S.no.33 of 2012
and another, K.L.V. Prasada rao and others Vs.K.Venkateswara
Goud and others, K. Balakrishna Vs. K. Kamalam and others, G.
Shravan Kumar Vs. D. Srinivas (died), Prem Singh and others
Vs. Birbal and others and Regati Ramaraju Vs. Neelamsetti
Kataji Rao and others (24) to (26), (28) and (30) to (34)(Supra))
Thus, in this regard, the version of P.Ws. 1 and 3 and Exs. P.1 to P.8 and written arguments filed on behalf of the plaintiff are of no help to the plaintiff. Hence, the Will deed, Ex.B.5 cannot be said that it is null and void document and not binding on the plaintiff. Additional issue no.,(ii), framed, on 12-07-2013, is, accordingly, answered against the plaintiff and in favour of the defendants.
(V) Additional issue no., (iii), framed, on 12-07-2013: Whether the suit is barred by limitation?
(i) The contention of the learned counsel for the defendants is that the plaintiff/P.W.1 cannot seek cancellation of Exs. B.1 to B.5, as the suit filed by the plaintiff is barred by limitation, as the same was not sought for by late Vadla Brahmaiah, during his life time, as he never questioned them. There is nothing in the pleading of P.W.1 in her plaint that Exs.B.1 to B.5 are obtained by D.W.1 by playing fraud, for declaring the documents as null and void. The allegation of fraud must be clearly and specifically pleaded and it should be proved by cogent evidence. Any amount of oral evidence is of no consequence when there is written 28 O.S.no.33 of 2012 document, as per the provisions of Section 91 and 92 of the Indian
Evidence Act.
(ii) When there is valid acceptance of Exs. B.1 to B.4 and the same is completed, it is irrevocable under Section 126 of the Transfer of
Property Act. Section 126 of the Transfer of Property Act prohibits revocation of a validly executed gift, except the circumstances mentioned therein. Gift deeds, Exs.B.1 to B.4 ( relating to the item nos., “A” to “C'” schedule property), are in force for a period of 25 years. The donor has not cancelled the same.
(iii) On the other hand, late V. Brahmaiah also executed Ex.B.5 Will deed relating to “D” schedule property and item nos,. 1 to 3 of “A” schedule property. The learned counsel for the defendants, in support of their case, also relied on the judgments, in the case of Yadla
Venkata Subbamma and others Vs. Yadla Punnamma and others ,
Mst. Sirtaji Vs. Algu Upadiya, Commissioner of Wealth-tax,
Kanpur etc.,Vs. Chander Sen etc., Musini Leela Prasad
Vs.Musini Bhavani and others, Moturu Umadevi and others Vs.
Bandaru Himmath Venkata Kumar and others, Muhammad
Hussain Vs. Babu Kishwanan Sahar, Samrathi Vs. Parasuram,
Vigneswarapu Jaggaraju (died) and others Vs. Gitta Seetha
Ratnam and others, Pagadala Bharathi and another Vs. J. Radha
Krishna, Gouranga Sahu and others Vs. Maguni Devi and
29 O.S.no.33 of 2012
others, Tirath Vs. Manmohan Singh and others, Gogineni
Danunjaya Vs. Gogineni Anusha, Pagadala Bharathi and another
Vs. J. Radha Krishna, Gorachand Mukherjee Vs. Smt. Malabika
Dutta, Surendra Kumar Vs. Nathulal, Neeelamsetti Kataji Rao
and others Vs. Regati Ramaraju, Vineeta Sharma Vs. Rakesh
Sharma, Exl Careers and another Vs.Frankfinn Aviation Services
private Limited ((10) to (23) (29) (35) and (36) Supra) ) .
(iv) Thus, looking to the facts and circumstances of the case, the suit filed by the plaintiff/P.W.1 is barred by limitation by Article 59 of the
Limitation Act. Thus, in view of the settled preposition of law and the decisions, laid down by both the parties, basing on the pleadings, relief sought for by the plaintiff, the suit is filed after 20 years of execution of registered gift settlement deeds, under Exs. B.1 to B.4 and they are never challenged during the lifetime of Vadla Brahmaiah and, therefore,
Exs. B.1 to B.5 cannot be questioned by P.W.1. Moreover, the plaintiff did not file any rejoinder to written statement of the defendants. Therefore, the additional issue no.,(iii), is, accordingly answered against the plaintiff/P.W.1 and in favour of the defendants.
(VI) Issue no.,(iii), framed, on 24-09-2012: Whether the
plaintiff is entitled to declare the registered sale deed no., 2267
of 2012, dated 22-02-2012 as null and void to the extent of her
half share?
30 O.S.no.33 of 2012
(i) In view of the discussion on issue no., (ii), framed, on 24-09- 2012, and the additional issue nos., (i) to (iii), framed, on 12-07-2013, holding them in favour of the defendants and against the plaintiff, in view of Exs.B.1 to B.5, the documentary evidence executed in favour of
D.W.1, this Court is of the opinion that defendant no.,3/ D.W.7 is bonafide purchaser of the property, under Ex.B.16/A.10. Since the schedule property was already gifted through gift deeds, under Exs. B.1 to B.4 and Ex.B.5 Will deed, in favour of D.W.1 and that, therefore,
D.W.1, in turn, sold the property under Ex.B.160/Ex.A.10. Therefore, the plaintiff cannot question Ex. B.16/Ex.A.10.
(ii) In this regard, Exs.A.1 to A.8, the version of P.Ws. 1 and 3, as the version of P.W.2 is of no help to P.W.1 and D.W.1, the written arguments filed on behalf of the plaintiff and the judgments relied on by the learned counsel for the plaintiff, in the case of A. Raghavamma and
another Vs. A.Chenchamma and another, Huam Narayan Prasad Vs.
Krishna Prasad and others, Vineeta Sharma Vs. Rakesh Sharma, Anil
Rishi Vs. Gurbaksh Singh, Thulsi and others Vs.Chandrika Prasad and
others, Bhaskar Waman Joshi (deceased) and others Vs. Shrinarayan
Rambilas Agarwal ( deceased) and others ((1) to (6) Supra), as the facts in those cases and the facts of the present case are distinguishable on facts, are of no help to the plaintiff. Hence, issue no.,(iii) is, accordingly answered against the plaintiff and in favour of defendant no.,3/D.W.7, 31 O.S.no.33 of 2012 holding that the plaintiff/P.W.1 is not entitled to declare the sale deed, under
Ex.B.16/Ex.A.10 as null and void to the extent of her half share.
(VII) Issue nos., (i) and (iv): framed, on 24-09-2012 : Whether the
plaintiff is entitled for partition and separate possession of the suit
schedule properties:
Whether the plaintiff is entitled for the relief to mutate
her name as owner and possessor of the suit schedule
properties in respect of her share by correcting the revenue
records?
(I) Since both the issues are pertaining to the claim of the plaintiff/P.W.1, over the schedule property, the said issues are dealt together.
(ii) In view of the discussion on issue nos., (ii) and (iii),framed, on 24-09-2012 and the additional issue nos., (i) to (iii), framed, on 12-07- 2013, holding that the plaintiff/P.W.1 is not entitled for declaration of
Exs. B.1 to B.5 and Ex.B.16/Ex.A.10, as null and void, and that P.W.1 cannot claim half share in the schedule properties, in view of execution of Exs. B.1 to B.5, prior to 20-12-2004, as provided under first proviso to
Section 6 of the Act that the property under Exs.B.1 to B.5 is the absolute property of P.W.1 and that, therefore, the plaintiff/P.W.1 is not entitled for partition and separate possession of the schedule properties and for mutation of her name in the revenue records. Thus, issue nos.,
(i) and (iv) are, accordingly, answered against the plaintiff and in favour of defendant nos., 1 and 3/D.Ws. 1 and 7.
32 O.S.no.33 of 2012 (VIII) Issue no.,(v), framed, on 24-09-2012 and additional issue no.,(iv), framed, on 12-07-2013: To what relief?
(i) in view of discussion on issue nos., (i) to (iv), framed on 24-09- 2012 and additional issue nos., (i) to (iii),framed, on 12-07-2013, holding them against the plaintiff/P.W.1 and in favour of defendant nos., 1 and 3/D.W.1 and D.W.7, this Court is of the opinion that the suit filed by the plaintiff/P.W.1 is liable for dismissal.
9.In the result, the suit filed by the plaintiff/P.W.1 is dismissed with costs.
( Dictated to the Stenographer and after transcribed by her, corrected and
pronounced by me in the open Court, on this the 17 th day of October,
2022.)
Special Judge for SCs/STs (POA) Act
-cum- III Addl. District Judge Sangareddy.
APPENDIX OF EVIDENCE
Witnesses examined on behalf of
Plaintiff Defendants
P.W.1: V. NagamaniD.W.1: V. Shobha P.W.2 V.Janardhan CharyD.W.2: P. Vishnuvardhan Reddy PW3: N. NarsimuluD.W.3: U.Nagaiah D.W.4: P. Laxmi D.W.5: R.Narsimha Reddy D.W.6: V.Anjaiah D.W.7: K. Ramadevi 33 O.S.no.33 of 2012
Exhibits marked for Plaintiff Plaintiff
Ex.A1 : CC of Pahani for the year – 1975-76 (9 pages) Ex. A2: CC of Pahani for the year – 1980-81 (10 pages) Ex.A3: CC of Pahani for the year – 1985-86 (10 pages) Ex.A4: CC of Pahani for the year – 1990-91 (10 pages) Ex.A5: CC of Pahani for the year – 1995-96 (09 pages) Ex.A6: CC of Pahani for the year – 2000-01 (14 pages) Ex.A7: CC of Pahani for the year – 2005-06 (11 pages) Ex.A8: CC of Pahani for the year – 2008-09 (08 pages) Ex.A9: CC of Registered Gift settlement deed No. 6686/2002. Ex.A10: CC of Registered sale deed. Doc No. 2267/2012.
Exhibits marked for Defendant
Ex.B1 : Orginal Gift settlement deed. Dt: 18-04-1991. Ex. B2: Orginal Gift settlement deed. Dt: 25-04-1991. Ex.B3: Orginal Gift settlement deed. Dt: 29-12-1995. Ex.B4: Orginal Gift settlement deed. Dt: 17-10-2002. Ex.B5: Orginal Will deed. Dt: 29-12-1995. Ex.B6: Orginal Pattadhar Pass book. Ex.B7: Orginal Title deed of Defendant No.1 Ex.B8: Orginal Challan Dt: 04-06-1999. Ex.B9: Final Patta Certificate of Bramaiah Ex.B10: Attested copy of the revesion registered issued by Panchyat Secretary. Naddigama Village. Ex. B11: Signature of Balram Reddy by DW4. Ex. B12: Signature of Bhama Reddy by DW4. Ex. B13: Signature of Balram Reddyby DW4. Ex. B14 & 15: Signature of Balram Reddy by DW4. Ex. B16: CC of Registered Sale deed, Dt: 22-02-2012. vide doc.No. 2267/12. Ex. B17: Lay out plan. Ex. B18: HMDA Approval Plan. Dt: 29-09-2018. Ex. B19: Conversion order passed by the HMDA, Dt: 25-09-2017. Ex. B20: Memorandum of Articles Association along with certificate of incorporation of the firm. Ex. B21: Resolution dated: 03-12-2011. Ex. B22: Audit Report for the year 2011-12. Ex. B23: Statement of account obtained from the Andhra Bank, PragathiNagar.
34 O.S.no.33 of 2012
EX. B24: Minutes of the meeting, Dt: 02-12-2011. Ex. B25: Copy of Ministry of Corporate Affarirs
Ex. B26: Copy of annual General Body Meeting
Ex. B27: Elections took place on 22-09-2012.
Ex. B28: Payment of vochar Dt: 08-02-2012.
Ex. B29: Payment of vochar Dt: 10-03-2012.
Ex. B30: Payments of vochar Dt: 28-03-2012.
Ex. B31: CC of bank statement from 01-02-2012 to 15-02-2012.
Ex. B32: CC of bank statement from 01-03-2012 to 15-03-2012.
III Addl. District & Sessions Judge
Sangareddy