Dt. 13-4-2017 O.S.No.24 of 1999. 1
IN THE COURT OF THE II ADDL.SENOR CIVIL JUDGE
(FTC) MAHABUBNAGAR
Thursday, the 13th day of April, 2017.
Present: Ms. R.Sreelatha, Prl. Senior Civil Judge, (FAC) II Addl. Senior Civil Judge, Mahabubnagar.
O.S.No.24 of 1999
Between:
1. Smt. Cheerla Pateshwari Devi W/o C. Chandrasekhar, aged: 45 years,occu: House-hold, R/o 102-A, Nirman Towers ( B.O.I Towers) Pump House, Andheri East Bombay.
2. Kum. Alivelu Rajeshwari D/o late A. Sambaiah, aged: 42 years, occu:Private Employee, unmarried, R/o T.R.T Quarters 157, Vidyanagar, Hyderabad.
… Plaintiffs. And.
1. Sri Guruvallabha Dev alias A. Ampaiah S/o late A. Sambaiah, aged: 35 years,occu: Legal Practitioner, R/o 2-2-2/2/D-1, Behind Head Post office, Mahabubnagar.
2. Smt. A.Jagadeswari W/o Srinivasulu, aged: 40 years, occu: Junior Lecturer in Govt. Girls Junior College, Wanaparthy.
3. Ms. A.Umamaheshwari D/o A. Sambaiah, aged: 37 years, occu: Govt.Teacher, R/o C/o Smt. Kalpana Little Angles High School, New Town, Mahabubnagar.
4. Smt. P. Malleshwari W/o P. Nageshwar, aged: 36 years, occu: Govt. Servant, R/o 9-8-1/B, Road, 7-A, Dwarakapuram, Dilsukhnagar, Hyderabad.
5. Smt. P. Tejaswini W/o P. Goutam, aged: 30 years, C/o Instructors Quarters village Development Officer Training Centre, Rajendranagar, Hyderabad
6. Kum. Syamala D/o A. Sambaiah, aged: 26 years, occu: Medical Practitioner, R/o 9-8-1/B, Road No.7th Dwarakapuram, Dilsukhnagar, Hyderabad.
7. Mr. A.Devendranath S/o A. Sambaiah, aged:24 years, occu: Student, R/o 2-2-2/D-1 Behind Post office, Mahabubnagar.
8. Smt. A. Ramalingamma W/o late A. Sambaiah, aged: 60 years, occu: House-hold, R/o 2-2-2/D-1,Behind Post office, Mahabubnagar (Died on 3-7-2006 and L.Rs already on record as seen from Memo, dated 4-7-2006 )
9. Kum.Alivelu Sree Vidya @ Alivelu Sweety, minor under the guardianship of Natural father Guruvallabha Dev, defendant No.1 here.
(The defendant No.9 is added as per orders in I.A. No. 88 of 2008 dated; 05-06-2008).
… Defendants.
Dt. 13-4-2017 O.S.No.24 of 1999. 2
***
This suit coming up for hearing before me on 14-2-2017 in the presence of Sri V.S.N Sastry, Advocate for Plaintiffs and Sri N.Bal Reddy,
Advocate for the defendants 1 and 9, Sri M.Gopal Reddy, Advocate for the defendant No.7, and the defendants 2 to 6 having remained exparte and the matter having stood over for consideration, the court delivered the following:
J U D G M E N T
This is the suit filed for the partition and separate possession of the suit schedule ‘A’ and ‘B’ properties into 10 equal shares and for allotment of 2 such shares to the plaintiffs by metes and bounds.
2. The case of the plaintiffs is that the plaintiffs, the defendants
Nos. 2 to 6 are the daughters and the defendants 1 and 7 are the sons of one late Sri Sambaiah and the defendant No.8. Sri Sambaiah who was an Advocate during his life time, with the assistance of the family members some of whom were earning members, has acquired the suit schedule ‘A & B’ properties which are the joint family properties of the parties to this suit. When the defendant No.1 who is managing the ‘B’ schedule property on behalf of all the family members without any family needs proposed to sell ‘B’ schedule property along with the well to others, the same was refused and opposed by the plaintiffs. The defendant No.1 also never cared to render any accounts and did not take any care of the maintenance of the unmarried members of the family, also was frequently quarrelling and ill-treating the sisters. Since the ‘B’ schedule
Dt. 13-4-2017 O.S.No.24 of 1999. 3
property was absolutely owned by late Sri Sambaiah, the defendants 1 and 7 cannot make any alienations and they are not binding on the rest of the family members. It is contended that after recording the evidence of the plaintiffs, the counsel for the defendant No.1 has concocted a registered will pertaining to the defendant No.8. It is averred that there is registered gift deed for 121.5 Sq.yards in favour of the defendant No.2 executed for the purpose of education loan and after the death of Sri
Sambaiah, it was again transferred in favour of the defendant No.7 at the instance of the defendant No.1. Hence, this suit is filed for partition and separate possession as the defendant No.1 has bluntly refused for partition and also threatened with dire consequences. Further, due to fear of the defendant No.1, the defendants 2 to 8 did not join as the plaintiffs in this suit.
3. In the written statement filed on behalf of the defendants 1 and 8, there is admission regarding the relationship between the parties as shown in the plaint and that they are the legal heirs of Sri Sambaiah. It is putforth that that the earnings of Sri Sambaiah were not even sufficient to meet the bare necessities of the family since he had 10 children and his practice was purely on civil side. He could not earn any properties and it is averred that the suit schedule properties are not the joint family properties. According to these defendants, only the defendant No.8 has got right in the entire suit schedule properties and the defendant No.1 is lookingafter the suit schedule properties on behalf of the defendant No.8.
The question of asking for the accounts does not arise and it is purtforth that the 2nd plaintiff, the defendants 2 and 3 have selected their own ways of life against the wishes of the parents and they have damaged the
Dt. 13-4-2017 O.S.No.24 of 1999. 4
social image of Sri Sambaiah. It is specifically averred that the defendant
No.8 has inherited the properties from her maternal home as she is the sole successor to her parents and that the ‘A’ schedule suit site was purchased from out of the exclusive money of the defendant No.8 and the sale deed was obtained benami in the name of Sri Sambaiah as the defendant No.8 was only a house wife. Hence, the ownership of the suit ‘A’ schedule property does not vest with Sri Sambaiah. After the death of her father in the year 1977, the defendant No.8 has inherited all the properties of her father and from 1990 onwards, as Sri Sambaiah suffered paralytic stroke. So, the defendant No.1 is managing the entire properties and there is no contribution of even a single rupee by any of the family members. It is also the contention of the defendants 1 and 8 that the defendant No.8 has constructed the house in ‘A’ schedule site in the year 1995 with the sale consideration amount of the plot No.17 at
Nagarkurnool and the lands sold at Chagapuram village and the loans were raised by defendant No.1. It is putforth that since the date of construction, the defendant No.8 along with the defendant No.1 and his family members are residing in that house as absolute owners. Also, the ‘B’ schedule properties were sold to 9 different persons of Shekrapur
Thanda under registered sale deeds by the defendant Nos. 1 and 7 and the amount was given to the husband of the first-plaintiff for taking the defendant No.7 to Hongkong for sake of employment. It is contended that the suit is not maintainable in respect of ‘B’ schedule properties for not impleading the purchasers and since the first-plaintiff was married in the year 1976, she cannot set up for any claim for partition. Also, the built up area pertaining to ‘A’ schedule is wrongly shown and it is averred that the marriage of the defendant No.4 was performed by raising loans
Dt. 13-4-2017 O.S.No.24 of 1999. 5
in the year 1993 by the defendant No.1 on the instructions of the defendant No.8. It is contended in the additional written statement filed on 15-7-2009 that Sri Sambaiah has executed the registered gift settlement deed in favour of the defendant No.2 for an extent of 121.5
Sq.yards for obtaining the education loan and in turn, the defendant No.2 has executed the gift settlement deed on 13-7-1997 for this extent in ‘A’ schedule house plot in favour of the defendant No.7 and there is no delivery of possession under these gift deeds and that the defendant No.8 is in possession of ‘A’ schedule property. After the death of the defendant No.8, the defendants 1 and 9 ( the defendant No.9 is the daughter of the defendant No.1) became the absolute owners to half extent each by virtue of will dated 29-8-2002 and the defendant No.8 has died on 3-7-2006.
3(a). The defendant No.9 i.e. the daughter of the defendant No.1 who was subsequently impleaded in this suit has adopted the written statement of the defendant No.1.
3(b). The defendant No.7 has submitted the written statement admitting the relationship between the parties and admitting that ‘A & B’ properties have been acquired by the deceased Sambaiah. But, it is denied that the members of the family have contributed for acquiring the ‘A and B’ schedule properties. It is admitted that all the children and wife of Sri Sambaiah have got equal shares and it is put forth that the defendant No.1 has mismanaged the joint family properties and proposed to alienate the suit schedule properties without any legal necessities against the interest of the joint family members. It is averred that during the life time of Sri Sambaiah, Sri Sambaiah has executed the registered gift deed for an extent of 121.5 Sq.yards in favour of the defendant No.2
Dt. 13-4-2017 O.S.No.24 of 1999. 6
under registered gift deed and later, the defendant No.2 has again executed the registered gift deed in favour of the defendant No.7 in the year 1997 and that the defendant No.7 is in exclusive possession of the same and for this reason, from the ‘A’ schedule property, this extent has to be deducted. It is prayed that the rest of the suit claim may be decreed.
4. Basing on the above pleadings, the following issues were framed for trial by the then Officer.
1. Whether the plaintiffs are entitled for partition as prayed for?
2. To what relief?
Addl. Issue framed on 2-8-2004 is as follows:-
Addl.Issue: Whether D-7 is in exclusive possession of an extent of 121.5 Sq.yards in pursuance of Registered gift deed in his favour executed by the defendant No.2 who acquired the same by way of gift deed from late Sambaiah?
Addl.Issues framed on 16-11-2016:-
Addl.Issue No.1: Whether the suit schedule properties are the joint family properties of the plaintiffs and the defendants 1 to 8?
Addl.Issue No.2: Whether the suit is bad for the jon-joinder of the necessary parties i.e. the purchasers of ‘B’ schedule property under registered sale deeds documents Nos.57/1996 to 61/1996 and 537/1996 to 540/1996?
Addl.Issue No.3: Whether the registered gift deed bearing No.2131/1990 dt. 27-8-1990 is true, valid and binding on the parties?
Addl.Issue No.4: Whether the will deed dt. 29-8-2002 executed by the defendant No.8 in favour of the defendants 1 and 9 pertaining to ‘A’ schedule
Dt. 13-4-2017 O.S.No.24 of 1999. 7
property is true and valid?
5. On behalf of the plaintiffs, PWs 1 and 2 are examined and they got marked Exs.A1 to A3.
On behalf of the defendants, DWs 1 to 8 are examined and they got marked Ex.B1 to B39.
6. There are no arguments submitted on behalf of the plaintiffs and hence, treated as Nil.
The written arguments are filed for the defendant No.7 to the effect that the plaintiffs have answered the issues by examining PWs. 1 and 2 and that the sale deeds pertaining to ‘B’ schedule are created by
DW-2 with the help of the vendees. Further, the execution of Ex.A3 by late Sri Sambaiah is not being denied by any one and it is also putforth that the version of purchase of A and B schedule properties by the defendant No.8 in the name of Sri Sambaiah is hit by the provisions of the Benami Transaction Act. The defendant No.8 not entering into the witness box is fatal and it is prayed to decree the suit by excluding the property covered under Ex.B1 in favour of the defendant No.7 and that the defendant No.7 in order to substantiate his case also got himself examined as DW-1.
The written arguments are submitted on behalf of the defendants 1 and 9 apart from the oral arguments, reiterating the pleadings and the evidence on record. According to the defendants 1 and 9, the alleged gift in favour of the defendant No.2 is only for the purpose
Dt. 13-4-2017 O.S.No.24 of 1999. 8
of education loan and the same is nominal in nature and the ‘A’ schedule house site was purchased by the exclusive money of the defendant No.8.
It is reiterated that the defendant No.1 has raised the loans and shared the financial responsibilities i.e. education of his siblings and the management of the properties and that he has sent the defendant No.7 to Hongkong from the sale consideration amounts of ‘B’ schedule property. It is averred that the non-joinder of the purchasers of ‘B’ schedule property makes the suit bad as they are the necessary parties to the suit. After the death of the defendant No.8, the defendants 1 and 9 are the absolute owners and the possessors of ‘A’ schedule property. The admitted facts are reiterated and it is put forth that the father of the defendant No.8 was having 100 acres of land and that the defendant
No.7 is using his salary for his sake but not spending for the defendant
No.8 nor for the defendant No.1’s family. By relying upon various citations, it is contended that the burden to prove that the schedule A and B properties are the joint family properties lies on the plaintiffs and that Ex.B2 will is proved beyond any suspicion. It is also contended that the gift in favour of the defendant No.2 and later on in favour of the defendant No.7 by the defendant No.2 is not believable and that there is no acceptance of gift at all as required U/Sec. 122 of the T.P. Act. It is prayed to dismiss the suit as the correct description of the immovable property is not given.
The relevant citations are discussed at the appropriate contexts.
7. Addl.Issue No.1 dated 16-11-1996:
“Whether the suit schedule properties are the joint family properties of the plaintiffs and the defendants 1 to 8?”
Dt. 13-4-2017 O.S.No.24 of 1999. 9
This issue is the crux of the suit and hence, taken up for the discussion first. The very suit for the partition is filed by the two female family members who are the daughters of late Sri Sambaiah claiming that the schedule ’A’ house and the schedule ‘B’ landed property in Sy.No.104 are the self-acquired properties of Sri Sambaiah, who has died on 22-7- 1994. The admitted facts are that late Sri Sambaiah and the defendant
No.8 have got two sons i.e. the defendants 1 and 7 and the plaintiffs 1 and 2, the defendants 2 to 6 are their daughters. If it is established that
Sri Sambaiah was the absolute owner of ‘A & B’ schedule properties, definitely, all the children and the defendant No.8 who is the wife of Sri
Sambaiah becomes entitled for equal shares over the suit schedule properties U/Sec. 8 of the Hindu Succession Act, 1956 as they are class I heirs of the male Hindu dying intestate.
8.There is no denial that the site pertaining to ‘A’ schedule house is standing in the name of Sri Sambaiah and the relevant sale deed is Ex.A2 ( the original of Ex.A2 is Ex.B3). The extent of 304.33 Sq.yards was purchased by Sri Sambaiah under this document on 30-11-1971 vide document No.1460/1971 from one K.Rachappa. The claim of the defendants 1 and 8 as seen from the common written statement is that the property under Ex.A2 was actually purchased by the defendant No.8 but not by late Sambaiah and that she purchased it in the name of her husband who is an Advocate as the defendant No.8 was only a house wife and that Sri Sambaiah has never asserted any rights over this ‘A’ schedule property during his life time. It is also putforth by the defendants 1 and 8 that the house was constructed after the death of Sri Sambaiah in the year 1995.
Dt. 13-4-2017 O.S.No.24 of 1999. 10
8(a). It is significant to mention here that the defendant No.1 by claiming that he has got the G.P.A to represent the defendant No.8 has filed the written statement on her behalf also and the defendant No.1 himself is an Advocate. Significantly, the defendant No.1 (DW-2) states that he does not remember whether his mother gave an affidavit in continuation of her earlier G.P.A to represent her. He admits that after filing this suit, his mother did not give him any power of attorney to prosecute this suit on her behalf. In the light of the very stand of all the other children of Sri Sambaiah and the defendant No.8 being that it is the defendant No.1 who has taken the control over the defendant No.8 and mismanaged the property against the interest of the remaining co-owners, this aspect of power of attorney to represent defendant No.8 in this suit obtained by the defendant No.1 not being in the order is fatal and Rule 32 of Civil Rules of Practice is not followed.
Ex.B11, the GPA in favour of defendant No.1 was executed on 8-4- 1993 and Ex.B.11 pertains to the properties at Chagapur with specific
Survey Numbers and So, it cannot be construed that this G.P.A under
Ex.B11 permits the defendant No.1 to represent the defendant No.8 in this suit without any other authorization. The learned counsel for the defendant No.1 contends that even though the G.P.A holder was not having power to represent when the suit was instituted, but subsequently if such powers are given, the institutional defects will be removed and if this suit is being represented by defendant no.1 on behalf of defendant
No.8 without any authority, it is only a curable irregularity. In this case on hand, the defect is not cured and the alleged G.P.A issued earlier under
Ex.B-11 was pertaining to some other properties and it is does not authorize defendant No.1 to represent defendant No.8 in this suit. The
Dt. 13-4-2017 O.S.No.24 of 1999. 11
alleged will does not cure the defect and it has seen the light belatedly on the ground of misplacement and it came into force only on the death of defendant No.8. In support of his contention, the learned counsel for the defendant No.1 has relied on the citation in 2004(5) ALT 542 between
M/s Gold Medal, rep. by its sole Proprietor, Mohd.Ali Arifi (dead)
per L.Rs Vs. Smt. Ameena Begum through her GPA. In the light of the admissions of DW-2, there is no valid authorization for defendant No.1 to represent the defendant No.8 in this suit.
9. Now, adverting to the version of the defendant No.1 that
Ex.A2 sale deed (Ex.B3) was obtained in the name of Sri Sambaiah by the defendant No.8 and that it is a benami transaction, as the transaction took place in the year 1971 and since the Benami Transaction ( Prohibition) Act pertains to the year 1988, the prohibition U/Sec. 4 of the said Act from taking the defence of the benami transaction by the defendant No.1 herein is definitely not applicable. So, the defendant No.1 is not prohibited from taking this defence of benami transaction in this suit.
9(a). As rightly observed by the Hon’ble Apex Court in AIR 1974
SC 171 between Jaydayal Poddar Vs. Mst. Bibi Hazra, the burden of
proving that a particular sale is a benami and that the apparent purchaser is not the real owner, it always rests on the person asserting it to be the same. This burden has to be strictly discharged by adducing the legal evi- dence of a definite character which would either directly prove the fact of
Benamior establish the circumstances unerringly raising an inference of that fact. The essence of a benami is the intention of the party or parties
Dt. 13-4-2017 O.S.No.24 of 1999. 12
concerned. The mere conjectures and surmises as substitute for proof cannot be accepted. So, in the present case on hand, the burden rests on the defendant No.1 who is asserting that Ex.A2 is a benani transaction in the name of Sri Sambaiah to prove the same. The defendant No.1 alone out of all the children of Sri Sambaiah is claiming that Ex.A2 is a benami transaction. The other son i.e. the defendant No.7 who is also benefited from selling a part of ‘B’ schedule property under Exs.B-32 to B36 con- tends that Ex.A2 transaction is not a benami transaction in the name of
Sri Sambaiah. Even according to him, the suit ‘A and B’ schedule proper- ties are the self-acquired properties of Sri Sambaiah. Sri Sambaiah was an advocate practicing exclusively on civil and Revenue side as seen from the evidence on record.
10. The following aspects are significant for deciding whether Ex.A2 is a benami transaction or not.
(a). In the light of the defendant No.1 contending in the written statement that Sri Sambaiah has never asserted his ownership pertaining to ‘A’ schedule property, it is significant to mention here that Sri Samba- iah has executed Ex.A3 i.e. the registered gift deed on 27-8-1990 in favour of his unmarried daughter i.e. the defendant No.2 who was working as Lecturer at Wanaparthy at that time and later, on this, the defendant
No.2 has executed Ex.B1 registered gift deed for this 121.5 Sq.yards of ‘A’ schedule site in favour of the defendant No.7 on 13-6-1997 and delivered the possession. There are definite boundaries and the sketch map is also appended to Ex.A3 and also for Ex.B1 gift deeds. The defendant No.7 who has deposed as DW-1 before this court has accepted the gift from the defendant No.2 and the defendant No.2 has actually got the gift of this
Dt. 13-4-2017 O.S.No.24 of 1999. 13
extent from her father. So, Sri Sambaiah (who himself was a civil practi- tioner ) has exercised his absolute rights over the property standing in his name under Ex.A2. If at all the contention that it was only a nominal transaction executed by late Sambaiah for sake of education loan of the defendant No.7 has to be accepted, there is no material placed regarding any such education loan. The defendant No.7 as DW-1 has asserted about the acceptance of gift of this open extent of land and possession be- ing delivered to him. This gift in favour of the defendant No.7 was never questioned by the plaintiffs or the defendant No.1 or by the defendant
No.8 and no legal action is initiated in this regard.
(b) Another circumstance to water down the contention of the benami transaction is that the defendant No.1 claims that the defendant
No.8 has purchased the property in the name of her husband as she was only a house-wife. It was elicited by the defendant No.1 from PW-1 that the defendant No.8 is an educated lady and after the marriage, Sri Sam- baiah and the defendant No.8 were sent to Allahabad for sake of their ed- ucation by the father of the defendant No.8 and that the defendant No.8 has studied upto P.U.C. In fact, it is seen that even after the death of Sri
Sambaiah, the defendant No.8 has individually approached the Hon’ble
High Court challenging the proceedings of the Government regarding the refusal of the Freedom Fighter’s Pension of late Sambaiah and in fact, Sri
Sambaiah himself did not choose to challenge the order. But, the said
Writ petition was dismissed under Ex.B-38 and the Writ appeal under
Ex.B-39 was also dismissed. This was decided on 16-6-2003 i.e. during the pendency of this suit. When the defendant No.8 was in a position to approach the High Court questioning some monitory benefits to be derived pertaining to her late husband, it remains unexplained as to what pre-
Dt. 13-4-2017 O.S.No.24 of 1999. 14
vented her to make her appearance in person before this court and the discussion pertaining to the representation of the defendant No.8 by the defendant No.1 made supra is significant in this context.
So, the defendant No.8 cannot be considered as an ordinary uned- ucated house-wife. She was well educated having the knowledge of the legal proceedings. Her husband and her eldest son are the advocates and at an advanced age, in the year 2003 also, she was prosecuting the writ appeal pertaining to the sanction of the Freedom Fighter’s Pension to her late husband and curiously, she was not represented by any G.P.A before the Hon’ble High Court as could be seen from Ex.B38 and Ex.B-39. Fur- thermore, it is apparently evident from the stand of the defendant No.1 himself that the defendant No.8 has sold her property i.e. the plot at Na- garkurnool on 7-4-1990 on her own through registered document
No.998/1990 ( Ex.B.10). So, she was dealing with the property of her own till the year 1990 and it is seen that Sri Sambaiah is one of the witnesses to Ex.B10. So, what prevented her from purchasing the property on her name itself if she really purchased it from the amounts after selling the properties acquired through her father remains unexplained. In fact, what are the properties sold by the defendant No.8 prior to 1971 for purchasing this site pertaining to ‘A’ schedule house is not put forth by the defendant
No.1 and not pleaded in the written statement at all. Even though DW-2 for the first time during his evidence states that in the year 1970, his grand-father sold Ac.20-28 guntas of land at Chagapur village for consid- eration of Rs.25,000/-, this significant aspect is not pleaded in the written statement. Therefore, it can be culled out that the defendant No.8 had no necessity to keep the property in the name of her husband if she really purchased it on her own. It is not the version of the defendant No.1 that
Dt. 13-4-2017 O.S.No.24 of 1999. 15
Sri Shivanna was living with his daughter i.e., defendant no.8 and son in law and in fact, he was residing at Gadwal and died in the year 1977.
© It is also contended that subsequent to the death of Sri Sam- baiah, the house was constructed by the defendants 8 and 1. Absolutely, no permission pertaining to the house construction is exhibited. Since the defendant No.1 is admittedly residing in the ‘A’ schedule house and in the light of the contention of the other children of Sri Sambaiah that he him- self is managing the entire affairs pertaining to the properties, the non-ex- hibition of the house construction permission and the relevant proceedings pertaining to the construction of the house in a particular year is fatal. As the tap connection was obtained subsequent to the death of Sri Sambaiah on 22-7-1994 ( Ex.B4 is the death certificate), obviously, the defendant
No.8 made an application for the water tap connection ( Ex.B5 is the wa- ter tap issuance proceedings dated 21-11-1993 and also the defendant
No.1 has remitted some of the property taxes as is evident from Exs.B6 to
B9 and these documents are not helpful to the defendant No.1 in estab- lishing that Ex.A2 transaction dated 30-11-1971 is a benami transaction.
All the above facts goes to show that Ex.A2 sale transaction is not a benami transaction and that Sri Sambaiah has exercised his exclusive rights over the property purchased under Ex.A2 by executing the regis- tered gift deed for part of the house plot in favour of the defendant No.2 during his life time i.e. in the year 1990 itself. So, the version of the be- nami transaction has to be disbelieved and this ‘A’ schedule property ex- clusively belonged to Sri Sambaiah.
Dt. 13-4-2017 O.S.No.24 of 1999. 16
11. Adverting to the schedule ‘B’ schedule property, there is only mention in the plaint that the ‘A and B’ properties are the self-acquired properties of Sri Sambaiah and of course, Ex.A1 i.e. pahani for the years 1991-92 and 1992-93 is filed which discloses that Sri Sambaiah is the pat- tedar of this ‘B’ schedule property in an extent of Ac.14-14 guntas in
Sy.No. 104 of Shekrapur village. There are no details as to when this property was purchased and there is no mention of these details in the written statement also except that the suit schedule ‘B’ property along with well belonged to the defendant No.8. But, in the light of the specific mention in the chief-examination-affidavit of DW-2 (defendant No.1) that the defendant No.8 has purchased the ‘B’ schedule property from out of the sale consideration of lands in Sy.Nos.82 and 86 in the name of Sri
Sambaiah as benami, it can be safely accepted that the ‘B’ schedule prop- erty also stands in the name of Sri Sambaiah and of course, Ex.A1 fortifies this fact. It is specifically averred in the chief-examination affidavit of DW- 2 as follows:- “Even though the suit schedule ‘A and B’ schedule properties are purchased in the name of my father Sri Sambaiah, the defendant No.8 is the absolute owner and possessor of the same”.
11(a). If at all, the contention of the defendant No.1 is that the defen- dant No.8 has actually purchased the ‘A’ & ‘B’ schedule properties in the name of Sri Sambaiah, naturally after the death of Sri Sambaiah, if that version is correct, the defendant No.8 should have executed the registered sale deeds pertaining to ‘B’ schedule properties. Very suspiciously, Sri
Sambaiah has died in the year 1994 and the alleged sale deeds pertaining
Dt. 13-4-2017 O.S.No.24 of 1999. 17
to ‘B’ schedule for the entire extent were executed by the defendants 1 and 7 i.e. the sons of the defendant No.8 and it is claimed by the defen- dant No.1 that this was done on the instructions of the defendant No.8. By then, she has executed the G.P.A in the year 1993 pertaining to the prop- erties acquired by her from her father in favour of the defendant No.1 vide document No.27/93, dated 8-4-93. The defendant No.1 has executed the registered sale deeds in the capacity of the G.P.A holder on 15-5-1993 i.e.
on a single day under Exs. B12 to B-21. As the G.P.A is executed on 8-4- 1993, nothing prevented her from including the ‘B’ schedule property in that GPA if at all she is the actual owner of ‘B’ schedule property and if she intended to sell ‘B’ schedule property for some purpose. In fact, the defendant No.8 could have executed the registered sale deeds pertaining to ‘B’ schedule property on her own or by giving the G.P.As in favour of the defendant No.1 or the defendant No.7. But, without any authority, af- ter the death of Sri Sambaiah, the defendant No.1 and the defendant No.7 on their own executed the registered sale deeds in favour of various pur- chasers under documents Nos. 537 to 540 of 1996 (by the defendant No.1 under Exs.B27 to 30 ) and under documents No. 57 to 61 of 1996 (under
Exs.B32 to B36 by the defendant No.7). In the chief-examination-affidavit of DW-2, it is stated that after the death of Sri Sambaiah, as per the in- structions of his mother, he along with the defendant No.7 has sold away the ‘B’ schedule property. As already observed, when she could approach the Hon’ble High Court even during the year 2003 pertaining to the Free- dom Fighter’s Pension of her late husband, nothing prevented her if at all the ‘B’ schedule property is her exclusive property to execute the sale deeds for this ‘B’ schedule property on her own or by giving written autho- rization through G.P.A.
Dt. 13-4-2017 O.S.No.24 of 1999. 18
11(b). It is interesting to note from 4th page of Chief-examination-affi- davit of DW-1 that prior to the execution of the sale deeds pertaining to ‘B’ schedule property on 20-1-1996 and on 18-3-1996, the application was made before the M.R.O, Addakal for mutation of half extent each in the name of the defendants 1 and 7 for conveniently selling the property and then the mutation proceedings are issued by the M.R.O of Addakal
Mandal. The defendants 2 to 8 and the defendant No.1 himself made statement giving consent to mutate the ‘B’ schedule lands in the name of the defendant No.1 and the defendant No.7. Then, the mutation took place and later, the defendant No.1 and the defendant No.7 have sold away Ac.14.14 guntas to 9 different persons. The defendant No.7 is how- ever disputing the execution of the sale deeds by him pertaining to ‘B’ schedule property for an extent Ac.7-07 guntas and claims that his signa- tures are forged and he is requesting the court to allow the equal shares to all the legal heirs of Sri Sambaiah including himself.
So, only basing on the mutation proceedings issued basing on the consent given by all the legal heirs of Sri Sambaiah, the properties were sold pertaining to the ‘B’ schedule as being putforth by defendant no.1 himself. These important proceedings are suppressed by DW-2 who himself is an advocate having thorough legal knowledge. In fact during the cross-examination, he states that all the other defendants and the first-plaintiff have given consent before the M.R.O and they gave state- ments giving consent for the mutation of the property in his name and in the name of the defendant No.7. There is no certificate obtained from the
M.R.O office regarding the non-availability of any such documents in the
MRO office. In the light of the denial by the defendant No.7 himself re- garding this version and the defendant No.1 failing to establish the same
Dt. 13-4-2017 O.S.No.24 of 1999. 19
by examining any other legal heir of Sri Sambaiah, this version has to be disbelieved. If this version of mutation/consent by the other legal heirs of late Sambaiah is disbelieved, the defendant No.1 or the defendant No.7 have got no exclusive rights to execute the sale deeds and at the best, they could execute the sale deeds to the extents of their undivided shares being the co-owners along with the daughters and the wife of late Sri
Sambaiah.
11(c). Ex.B11 is the G.P.A executed by the defendant No.8 in favour of the defendant No.1 on 8-4-1993 and the defendant No.8 was aged 56 years then and the defendant No.1 was a student at that time and this power of attorney was issued pertaining to Sy.Nos.102, 110, 111, 112, 113, 181/B, 182 and 706 only for an extent of Ac.68-27 guntas of
Chagapuram village standing in the name of the defendant No.8 and there is mention that till that date, she was lookingafter these properties in these survey numbers. It is relevant to mention here that this G.P.A is not executed for ‘B’ schedule property i.e. Sy.No. 104 of Shekarapur village as already observed. Under Exs.B12 to 21, defendant No.1 sold away these lands to several purchasers in pursuance of Ex.B11.
Also, the perusal of Exs.B.22, B-23 and B-37 goes to show there was compromise petition filed before the Subordinate Judge, Gadwal and lands in Sy.Nos.181/13, 182, 706, 102 fell to the share of the defendant
No.8 during the said compromise.
Even though the G.P.A is specific to the effect that the defendant No.1 shall deposit the sale considerations pertaining to the sale deeds executed by him on behalf of the defendant No.8 in the bank account of the defendant No.8 or to handover the amounts to the
Dt. 13-4-2017 O.S.No.24 of 1999. 20
defendant No.8 personally, there is no record regarding the sale consideration amounts being deposited in the bank account of the defendant No.8 and due to non-examination of the defendant No.8, there is no oral evidence in this regard. DW-2 claims that sometimes he has deposited the amount, in her account and sometimes, he paid in cash.
Admittedly, he did not file the bank account extract of the defendant No.8 to this effect. The contention of the plaintiffs is that the defendant No.1 as
G.P.A holder pertaining to the properties of the parents of the defendant
No.8 has misused the sale considerations also.
Much discussion pertaining to the compromise decree and the execution of the sale deeds by the defendant No.1 in pursuance of the
G.P.A is not required in the present case. Ofcourse, all this adds weight to the version that the ‘B’ schedule property is exclusively purchased by Sri
Sambaiah only and so, defendant no.8 did not meddle with it in any manner during the life time of Sri Sambaiah.
Even though the defendant No.1 claims that he has incurred expenses for the medical expenses on his father and mother and also for the marriage of the defendant No.4, no such material is placed before this court. It is necessary to reiterate here that not even a single sister of the defendant No.1 or the defendant No.7 who has also benefited to some extent during the sale of part of ‘B’ schedule property has not come to the rescue of the defendant No.1 nor supported his version.
Regarding the joint family nucleus at the time of purchase of the properties, the learned counsel for the defendants 1 and 9 submitted the citation in AIR 2004 Madras 529 between R. Deivanai Ammal ( deceased by LR) and another, Vs. G. Meenakshi Ammal. Here, in this case on hand, even if the contribution by the children of late Sri
Dt. 13-4-2017 O.S.No.24 of 1999. 21
Sambaiah who were employees by the time of purchase of A and B schedule properties is disbelieved, since Sri Sambaiah has died intestate, all his children and wife becomes co-sharers U/Sec. 8 of Hindu Succession
Act as properties are his absolute properties. The other citations reported in AIR 1969 S.C.1076 between Mudigowda Gowdappa Sankh and
others Vs. Ramchandra Revgowda Sankh ( dead ) by his legal
representatives and another, A.I.R (34) 1947 Privy Council 189
between Appalaswami Vs. Suryanarayanamurti and others and
A.I.R 1960 S.C. 335 between Mst. Rukhmabai Vs. lala
Laxminarayan and others are not helpful to the defendants 1 and 9 and undoubtedly, there can be no presumption that a Hindu family merely because it is joint, possesses any joint property.
11(d).Since it has come on record that Sri Sambaiah was exclusively practicing on civil and revenue side and in the light of the evidence of PW- 2 which is very significant regarding the details of his practice and the fact that he was having very prominent advocates as his juniors at that time, it cannot be held that he was not in a position to even maintain his family.
Further more, his two daughters i.e. the plaintiffs were being brought up by their maternal grand-father who had only sole issue i.e. the defendant
No.8 and they were educated by the father of the defendant No.8 at
Gadwal as seen from the material elicited during the cross-examination of
PW-1.
Therefore, the properties under ‘A and B schedules are to be con- sidered and accepted as self-acquired properties of late Sambaiah for the discussion made supra and So, all the legal heirs of late Sri Sambaiah be- comes the co-sharers of the joint family properties. Hence, I decide this
Addl. Issue No.1 in favour of the plaintiffs.
Dt. 13-4-2017 O.S.No.24 of 1999. 22
12.Addl.Issue No.2:- “ Whether the suit is bad for the jon-joinder of the necessary parties i.e. the purchasers of ‘B’ schedule property under registered sale deeds documents Nos.57/1996 to 61/1996 and 537/1996 to 540/1996?”
It is the contention of the defendant No.1 that he along with the defendant has sold away the ‘B’ schedule property in Sy.No.104 to various persons detailed as below:-
Ex.B27 vide doc.No.537/1996 dt. 18-3-1996 by the defendant
No.1 in favour of Sri P. Nagya Naik for an extent of Ac.2-15 guntas.
Ex.B-28 vide doc.No.538/1996 dt.18-3-1996 in favour of
P.Thirupathi Naik by the defendant No.1 for an extent of Ac.1-37 guntas.
Ex.B-29 doc. Dated 18-3-1996 in favour of P.Bikni Bai by the defendant No.1 for an extent of Ac.1-37 guntas.
Ex.B-36 doc. No. 540/1996 dated 18-3-1996 in favour of
P.Devamma by the defendant No.1 for an extent of Ac.0-38 guntas.
The Purchasers of the ‘B’ schedule property got mutated the purchased property. The defendant No.1 has sold the property under doc.Nos. 537 to 540/1996, whereas the defendant No.7 has sold the property to various purchasers under the document Nos.57 to 61 of 1996
dt. 20-1-1996 under Exs.B32 to B36.
12(a). In the original written statement filed at the first instance, it is averred that the ‘B’ schedule properties were sold out to 9 different persons of Shekrapur village under the registered sale deeds by the
Dt. 13-4-2017 O.S.No.24 of 1999. 23
defendants 1 and 7 and the details are lacking in this written statement.
Sri Sambaiah has died in the year 1994 and no medical record is filed to the effect that he was severely sick much prior to that. Within 2 years of his death i.e. in the year 1996 on one single day i.e. on 20-1-1996, the defendant No.7 has executed the registered sale deeds under the doc.Nos. 57 to 61 of 1996 and the defendant No.1 has executed 4 sale deeds on 18-3-1996 vide doc.No.s 537 to 540 pertaining to his half extent in ‘B’ schedule property. Of course, the defendant No.1 claims that the other legal heirs have consented for the mutation in their favour and gave statement before the Tahsildar and that the sales were not for his personal purpose, but for sending the defendant No.7 to abroad. The defendant No.7 is denying this version also and if the consent by the other legal heirs of Sri Sambaiah for mutation of the property in favour of the sons of Sri Sambaiah is disbelieved, the defendants 1 and 7 had no authority to execute the registered sale deeds pertaining to the property of their late father. The version of the benami transaction cannot be accepted pertaining to ‘B’ schedule property also for the discussion made in the Addl. Issue No.1, dt 16-11-96.
12(b). No doubt, the alleged purchasers are not made as parties by the plaintiffs and nothing prevented the defendant No.1 to bring his purchasers as parties to this suit. It is not as if the purchasers had no knowledge about this litigation. Very significantly, the purchasers of the sons of the defendant No.8 are examined as D.Ws 4 to 7 and it is clear from their cross-examination that they did not make any enquiries in the revenue office regarding the original pattedar of the land. In fact, the purchasers did not make any enquiries before the purchase whether the vendors have got any sisters (as stated by DW-6). The purchasers have
Dt. 13-4-2017 O.S.No.24 of 1999. 24
pleaded ignorance about Sri Sambaiah and no paper publication was issued prior to purchasing the property. All the co-sharers of the properties have not executed the alleged sale deeds and the purchasers gets the rights of their vendors alone to the extent of their undivided shares and these sale deeds doen’t bind, the plaintiffs and other co- sharers. The defendant No.7 has however failed to establish his plea regarding the sale deeds not being executed by him. Therefore, the non- inclusion of the purchasers of “B” schedule property will not make this suit bad for the non-joinder of the necessary parties and all the co-sharers are on record. Hence, this Addl.Issue No.2 is held against the defendant No.1.
The learned counsel for the defendant Nos.1 and 9 has submitted that the non-joinder of the purchasers of ‘B’ schedule property is fatal and relied on the citation of the Hon’ble High Court reported in
Andhra Pradesh Law Journal 1988 (2) ( H.C) between Abdul
Ajeeju Vs. L.Somulu. No doubt, the non-impleading of the co-owners as parties is fatal, but here, all the co-owners are on record.
13. Addl.Issue dt.2-8-2004 and Addl.No.3 dated 16-11-2016:
“Whether D-7 is in exclusive possession of an extent of 121.5 Sq.yards in pursuance of a Registered gift deed in his favour executing by the defendant No.2 who accrued the same by way of gift deed from late Sambaiah?” “Whether the registered gift deed bearing No.2131/1990 dt. 27-8-1990 is true, valid and binding on the parties?”
These two issues are pertaining to the gift deed executed by late Sri Sambaiah during his life time in favour of the defendant No.2 and about the defendant No.2 in turn executing the registered gift deed in favour of the defendant No.7 for an extent 121.5 Sq.yards out of ‘A’
Dt. 13-4-2017 O.S.No.24 of 1999. 25
schedule house site. If really the Gift deed under Ex.A3 in favour of defendant No.2 was a sham and nominal document executed by late
Sambaiah who himself had no authority to execute any such gift deed as the defendant No.8 is the actual owner, no steps being initiated regarding this Ex.A3 during the life of Sri Sambaiah and even during the life time of the defendant No.8 is suspicious. Further more, the defendant No.2 has again gifted this property in favour of the defendant No.7 out of the love and affection under Ex.B1. The gift was accepted by DW-1 as could be understood from his evidence and there are specific boundaries shown for this property gifted under Ex.A3 and later,under Ex.B1. It is an open site and this gift is never questioned by the defendant No.1 or the defendant
No.8 till the date. As Sambaiah is the exclusive owner of ‘A’ schedule site, he had absolute rights to deal with it and neither the plaintiffs nor his other legal heirs has got no authority to question the same. For this reason, it appears none have questioned Ex.A3 and Ex.B1. Of course, the plaint also does not disclose about these two registered documents, but
PW-1 during the cross-examination by the defendant No.7 has admitted about her father gifting 121 Sq.yards of site out of ‘A’ schedule site to the defendant No.2. But, she claims that it was executed for sake of loan.
Whatever is the purpose for which the registered gift deed is executed, by excluding all his other children, late Sri Sambaiah has executed the registered gift deed out of love and affection in favour of the defendant
No.2 and delivered the possession also. If really, the gift in favour of the defendant No.2 is a nominal one and no property was actually delivered to the defendant No.2, there was no necessity for her to again execute the registered gift deed in favour of her brother i.e. the defendant No.7.
Dt. 13-4-2017 O.S.No.24 of 1999. 26
Therefore, in the light of the evidence of DW-1 and the registered documents i.e. under Exs.A2, A3 and Ex.B1, these issues are answered in favour of the defendant No.7.
14. Addl.Issue No.4 dated 16-11-2016:
“Whether the will deed dt. 29-8-2002 executed by the defendant No.8 in favour of the defendants 1 and 9 pertaining to ‘A’ schedule property is true and valid?”
The defendant No.1 by claiming that the suit schedule ‘A and B’ properties are the exclusive properties of the defendant No.8 which are nominally purchased in the name of Sri Sambaiah and by claiming that the defendant No.8 herself has constructed the house ( A schedule) over the land and that he has sold away ‘B’ schedule property on the instructions of the defendant No.8, contends that the defendant
No.8 has executed the registered will in his name and in the name of his daughter the defendant No.9 for ‘A’ schedule house. All these claims of the defendant No.1 are disbelieved by this court.
14(a).In the light of the observations made supra pertaining to the defendant No.1 himself representing the defendant No.8 as her G.P.A holder in this suit without having valid authority and the defects point out supra regarding the alleged G.P.A and in the light of the discussion pertaining to the writ petitions filed by the defendant No.8 in her individual capacity even during the year 2003 which evidences that she was capable of looking after her affairs even in the year 2003 including the legal proceedings before the Hon’ble High Court, the defendant No.1 representing the defendant No.8 as her G.P.A before this court itself creates serious doubts, that too, when none of the other children of the
Dt. 13-4-2017 O.S.No.24 of 1999. 27
defendant No.8 and Sri Sambaiah are supporting this stand of the defendant No.1.
Even though the defendant No.1 claims that he himself has performed the marriages of some of the sisters and helped in the education of the defendant No.7, not even a single sibling of the defendant No.1 supporting him creates serious doubts and none of them are examined by him as his witness before this court. It is the specific stand of the plaintiffs that on account of the fear of the defendant No.1, the other siblings did not join as the plaintiffs in this suit.
14(b).In this context, very surprisingly during the pendency of this suit, the will deed dt. 29-8-2002 is brought on to the picture alleged to have been executed by the defendant No.8 in favour of the defendant
No.1 and the daughter of the defendant No.1 for ‘A’ schedule property and some other properties i.e. the exclusive land of the defendant No.8 in
Sy.No. 706 in an extent of Ac.6-24 and the compensation amount pertaining to the land acquisition of Sy.No. 706. Significantly, the plaintiffs have restricted their suit claim to the exclusive properties of Sri Sambaiah alone but not claimed anything in the properties of the defendant No.8. Of course, the defendant No.8 was alive at the time of filing of this suit. The defendant No.8 has died on 3-7-2006 during the pendency of this suit and the defendant No.9 i.e the minor daughter of the defendant No.1 was brought on record. By excluding all her other children, the defendant
No.8 executing the registered document to benefit the defendant No.1 alone by approaching the registration office on her own, that too, during the pendency of this suit by not looking after this case on her own creates serious doubts. Now under this will, the defendant No.1 wants to exclude
Dt. 13-4-2017 O.S.No.24 of 1999. 28
all the other legal heirs of the defendant No.8 and wants to claim the ‘A’ schedule property exclusively i.e. for himself and his daughter.
In the light of the findings of this court for the above discussed issues, it is evident that the defendant No.8 is not the owner of the ‘A and
B’ schedule properties and that Sri Sambaiah is not a benami owner.
Absolutely, there are no rights vested with the defendant No.8 to execute any will deed pertaining to ‘A’ schedule property in favour of the defendant Nos. 1 and 9. Without any exclusive rights over the ‘A’ schedule property, the alleged will even if proved to be correct will not create any rights in favour of the defendants 1 and 9 and if this will is believed by this court, to the extent of her undivided share in the ‘A’ schedule property, the defendant No.8 would get rights to execute the will under
Ex.B2.
15). If this Ex.B2 which has come into existence during the pendency of this suit is perused, the witnesses to Ex.B2 are none other than the wife of the advocate for the defendant No.1 on record at that time i.e. the wife of one B. Rama Rao and the other one is the own sister of the wife of the defendant No.1. None of the family members or the relatives being shown as witnesses to this will deed creates serious doubts. DW-3 is one of the witnesses to Ex.B2 will and she is the own sister of the wife of the defendant No.1 as already observed. She claims to have accompanied the defendant No.8 to the document writer and she was unmarried and aged about 23 or 24 years at the time of this will deed. The wife of the defendant No.1 is the Lecturer and the defendant
No.1 is the Advocate and in spite of they being financially well off, the defendant No.8 excluding all the other children and favouring the defendant No.1 itself is suspicious and the suspicious circumstances
Dt. 13-4-2017 O.S.No.24 of 1999. 29
pertaining to Ex.B2 remain unexplained. This will under Ex.B2 is being disputed by the rest of the legal heirs of the defendant No.8 and there is no trustworthy and unimpeached evidence produced regarding the genuineness and authenticity of the will. In fact, the wife of the advocate is not examined and only the close relative of the defendant No.1 is examined to prove the will. No doubt, the examination of one of the attestors of the will in this court is sufficient, but the same should be trustworthy evidence.
It is seen that the defendant No.8 has died on 3-7-2006 and will was executed in the year 2002 itself. This document was filed in the court on 9-4-2007 by stating that it was misplaced. It is not as if the defendant No.1 was not aware of the execution of will since his own sister-in-law and the wife of his advocate on record are the attestors of the will. There is no whisper made in the written statements filed by the defendants Nos. 1 and 8 and the will being produced on 9-4-2007 by claiming that it got misplaced is also a suspicious circumstance.
15(a). The decisions submitted by the learned counsel for the defendant Nos.1 and 9 pertaining to the will which are as follows guides this court in understanding that there should be trustworthy and unimpeached evidence that should be produced by the proponder of will i.e. the defendant No.1 herein and it is the burden on the propounder of the will to establish the genuineness and authenticity of the will. The citations are:-
1. 2014 (5) ALT 232 (D.B.) between Anantharaju Venkata Seshamma Vs. Rajupalem Seshavataram ( died) and others.
2. 2011 SAR (Civil) 35 S.C beween Gopal Swaroop vs. Krishna Murari Mangal and others.
Dt. 13-4-2017 O.S.No.24 of 1999. 30
3. 2014 (5) ALT 8 High Court of Judicature at Hyderabad between Ravi Raja Babaiah ( died) per L.Rs and another Vs. Vemulapalli Rajeswari Devi.
4. 1997 (5) ALT 459 High Court of Judicature at Hyderabad between Masimukkula Narayana and others Vs. Masimukkula Suryakantham.
5. 2014 (5) ALT 270 High Court of Judicature at Hyderabad between Naram Bhoomi Reddy ( died) per L.R Naram Raghunatha Reddy Vs. Naram Venkat Reddy and another.
Therefore, for the above discussion, this court has hesitation to hold that the will deed dt. 29-8-2002 i.e. Ex.B2 is true and valid. Hence, this issue is held against the defendants 1 and 9.
If this will of defendant No.8 is disbelieved, the share of the defendant No.8 also has to be equally distributed among the children of late Sambaiah and the defendant No.8.
16. ISSUE NO.1:- “Whether the plaintiff is entitled for partition as prayed for?”
In the light of the discussion for the above issues, as this court has held that A’ and B’ schedule properties are the self-acquired properties of late Sambaiah, in the light of this court disbelieving the alleged will under Ex.B2 in favour of the defendants 1 and 9 pertaining to ‘A’ schedule house as the defendant No.8 had no exclusive rights to execute any such will pertaining to ‘A’ property, the plaintiffs are entitled for partition and separate shares in ‘A and B’ schedule properties.
As this court has taken into consideration the gift deed executed by late Sambaiah who is the exclusive owner of ‘A’ schedule property under Ex.A3 in favour of the defendant No.2, this extent of site covered under Ex.A3 which is now gifted to the defendant No.7 under
Dt. 13-4-2017 O.S.No.24 of 1999. 31
Ex.B1 has to be deducted from the total site of Ex.A1 (house site purchased under Ex.A2). Ex.A1 discloses that the purchased house site is in an extent of 304.33 Sq.yards and Ex.A3 is executed for an extent of 121 Sq.yards. Though the defendant No.1 contends that the built up area shown in the plaint is incorrect, he has not produced any material regarding the actual built up area. It is not the specific stand of the defendant No.1 that the ‘A’ schedule house is constructed even on the land covered under Ex.A3.
The boundaries of the property shown in ‘A’ schedule are not disputed except the built up extent and the actual extent is not put on record by the defendant No.1.
16(a). The defendant No.1 is admittedly in the possession of the house. Since he is one of the co-sharers, it is deemed that he is in the constructive possession on behalf of the other co-sharers and none of the siblings of the defendant No.1 are residing along with the defendant No.7 at the suit house and they are residing at various places on account of their employments. Therefore, the court fee paid U/Sec. 34(2) of A.P.C.F and S.V Act is correct and it cannot be held that the plaintiffs are excluded from the possession of ‘A and B’ schedule properties. Hence, the citation relied on by the learned counsel for the defendants 1 and 9 reported in An.W.r. 1966 (2) page; 25 between Dwarampudi veeramma Vs. Kennala Dharma Reddy is not applicable. So, the house existing in this left over 183.33 Sq.yards shall be partitioned among the plaintiffs 1 and 2, the defendants 1 to 7 equally i.e. 1/9th share each since the undivided share of the defendant No.8 also has to be partitioned among the legal heirs equally.
Dt. 13-4-2017 O.S.No.24 of 1999. 32
As observed, the alleged sales made by the defendants 1 and 7 i.e. the sons of late Sambaiah pertaining to ‘B’ schedule property are not binding on the plaintiffs and at the best, the defendants 1 and 7 can sell their extents of undivided shares out of ‘B’ schedule property and such transactions does not bind the plaintiffs or the other co-sharers. Hence, the issue No.1 is accordingly answered in favour of the plaintiffs.
17. ISSUE NO.2 :- “To what relief”.
In the result, the suit of the plaintiffs is partly preliminarily decreed with costs allotting 1/9th share each to the plaintiffs 1 and 2 and to the defendants 1 to 7 in ‘A’ schedule property after excluding the land gifted to the defendant No.7 under Ex.B1 in an extent of 121 Sq.yards from out of total area of 304.33 sq.yards and also they are entitled for 1/9th share each in the ‘B’ schedule property. On failure to put the plaintiffs in possession of their shares by metes and bounds, they are at liberty to initiate final decree proceedings.
Dictated to Stenographer, transcribed by him, corrected and pronounced
by me in the open court on this the 13th day of April, 2017.
II Addl.Senior Civil Judge, (FTC) Mahabubnagar.
APPENDIX OF EVIDENCE
For plaintiffs:-
P.W.1 Ms.A. Rajeshwari
P.W.2 Sri M. Papaiah
For defendants:-
Dt. 13-4-2017 O.S.No.24 of 1999. 33
DW-1 Sri A.Devendranath
DW-2 Sri A.Gurvallaba Dev @ Ampaiah
DW-3 Smt. N.Vijaya Kumari
DW-4 Sri Pathlavath Nagya Naik
DW-5 Sri Pathalvath Venkat
DW-6 Smt.Pathlavath Devamma
DW-7 Smt. S.Bikni Bai
DW-8 Sri Hussain Miya
EXHIBITS MARKED.
For Plaintiffs:
Ex.A1C.C of pahani for the year 1991-92 and 92-93. Ex.A2C.C of Regd. sale deed dt. 30-11-1971 Ex.A3C.C of Regd. gift deed vide doc.No.2131/90 dt. 27-8-1990.
For the defendants:
Ex.B1- Original regd. gift deed dt.13-6-1997
Ex.B2- Original Regd.Will deed doc.No.14/III/2002 dt. 29-8-2002
Ex.B3 Original Regd.sale deed doc.No.1460/1971 dt. 30-11-1971
Ex.B4- Original Death certificate of Sri A. Sambaiah dt. 31-3-2006
Ex.B5- Original Proceedings of Commissioner, Mahabubnagar Municipality
dt. 21-11-1995
Ex.B6- Original Special notice of the Commissioner, Mahabubnagar Municipality dt. 11-1-1996 for house tax Ex.B7 -Original Property tax receipt issued by the Commissioner, Mahabubnagar Municipality. Ex.B8- Original property tax receipt issued by the Commissioner, Mahabubnagar Municipality.
Ex.B9- Original property tax receipt issued by the Commissioner, Mahabubnagar Municipality.
Ex.B10 –C.C of Regd. sale deed doc.No.998/1990 dt. 7-4-1990
Ex.B11 –C.C of Regd. G.P.A doc.No.27/1993 dt. 8-4-1993
Ex.B12 –CC of Regd.sale deed doc.No.1136/1993 dt. 15-5-1993
Ex.B13 –CC of Regd. sale deed doc.No.1137/93 dt. 15-5-1993
Ex.B14 –C.C. of Regd.sale deed doc.No.1138/1993 dt.15-5-1993
Ex.B15 - C.C. of Regd.sale deed doc.No.1139/1993 dt.15-5-1993
Ex.B16 - C.C. of Regd.sale deed doc.No.1149/1993 dt.15-5-1993
Ex.B17 - C.C. of Regd.sale deed doc.No.1141/1993 dt.15-5-1993
Ex.B18 - C.C. of Regd.sale deed doc.No.1142/1993 dt.15-5-1993
Ex.B19 - C.C. of Regd.sale deed doc.No.1143/1993 dt.15-5-1993
Dt. 13-4-2017 O.S.No.24 of 1999. 34
Ex.B20- C.C. of Regd.sale deed doc.No.1144/1993 dt.15-5-1993
Ex.B21 - C.C. of Regd.sale deed doc.No.1145/1993 dt.15-5-1993
Ex.B22 – C.C of compromise petition in IA.356/1995 in OS. No.2/1993 on the file of the court of Subordinate Judge, Gadwal. Ex.B23 – CC of Judgment in OS.No.2/1993 on the file of the court of the Subordinate Judge, Gadwal. Ex.B24 C.C. of R.O.R.
Ex.B25 – C.C of R.O.R
Ex.B26 - C.C of Pahani for the year 2006-07.
Ex.B27 –C.C of Regd. sale deed doc.No.537/1996 dt. 18-3-1996
Ex.B28 –C.C of Regd. sale deed doc.No.538/1996 dt. 18-3-1996
Ex.B29 - C.C of Regd. sale deed doc.No.539/1996 dt. 18-3-1996
Ex.B30 - C.C of Regd. sale deed doc.No.540/1996 dt. 18-3-1996
Ex.B31- C.C of R.O.R.
Ex.B32 – C.C of regd. sale deed doc.No.57/96 dt. 20-1-1996
Ex.B33 – C.C of regd. sale deed doc.No.58/96 dt. 20-1-1996
Ex.B34 - C.C of regd. sale deed doc.No.59/96 dt. 20-1-1996
Ex.B35 - C.C of regd. sale deed doc.No.60/96 dt. 20-1-1996
Ex.B36 - C.C of regd. sale deed doc.No.61/96 dt. 20-1-1996
Ex.B37 - C.C of Final decree in OS.No.2/1993 on the file of the court of the Subordinate Judge, Gadwal dt. 21-4-1995. Ex.B38 –C.C of order in W.P.No.17162/1996 dt. 23-7-2001
Ex.B39 - C.C of W.P.No. 647/2003 dt. 16-6-2003.
II Addl.Senior Civil Judge, (FTC) Mahabubnagar.