Dr. Sunnam Srinivas Reddy
II ADDITIONAL CHIEF JUDGE
HYD, City Civil Court Complex · Hyderabad · Telangana
DR. SUNNAM SRINIVAS REDDY, II ADDITIONAL CHIEF JUDGE, is posted at HYD, City Civil Court Complex, Hyderabad, Telangana, India. 1,831 court orders on record since 2015. 38 judgments with full text available. Primarily handles OS, EP, OP cases.
Featured Judgments
IN THE COURT OF THE XVII ADDL. SENIOR CIVIL JUDGE:
CITY CIVIL COURT: HYDERABAD
Present : Dr. S. Srinivasa Reddy
I Senior Civil Judge
FAC XVII Addl. Senior Civil Judge
Dated this the 11 th day of February, 2019
O.S.Nos. 2152 of 2006 and 1854 of 2007
O.S.No.2152/2006:
BETWEEN:
B. Chandrasekhar Rep. by GPA Holder Smt. B. Vijayabharathi
...Plaintiff
A n d
1. B. Siddartha
2. B.Nagarajamani
3. Raja vinay Chandra
4. Miss Srividya
5. Anand Sai
6. Smt. K. Jayashree
7. Miss. B. Dhathri Shree (Defendant Nos. 3 to 5 added as per Orders in I.A.No.1004/2007, dated 18.02.2008.
Defendant No.6 is added as per Orders in I.A.No.736/2008, dated 10.09.2008.
Defendant No.7 is added as per Orders in I.A.No.189/2014, dated 14.08.2014).
...Defendants
O.S.No.1854/2007
BETWEEN:
K. Jayashree
...Plaintiff
A n d
1. B. Siddartha
2. B. Chandrasekhar
3. B. Nagarajamani 2 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
4. Miss. Dhatrishree
5. Rajavinay Chandra
6. Miss Srividya
7. Anand Sai
8. Govinda Das
9. Himmath Hussain
10. Prabhakar
11. Bennabhaktula Nagamani
12. Laxmandas
13. M. Nagaraju
14. B. Laxman Rao
...Defendants
These suits coming before me for final disposal, in presence of
Sri Laxmi Narayana, Advocate for the plaintiff and of Sri N. Ravi Kumar,
Advocate for Defendant No.1 in O.SNo.2152/2006 and Advocate for
Defendant Nos. 1, 11 to 14 in O.S.No. 1854/2007, and of Sri Madhava
Rao, Advocate for Defendant Nos. 2 to 5 in O.S.No.2152/2006 and
Advocate for Defendant Nos. 3, 5 to 7 in O.S.No.1854/2007 and of
Sri Balchand, Advocate for Defendant No.6 in O.S.No.2152/2006 and
Advocate for Plaintiff in O.S.No.1854/2007 and of Sri M.V. Prasad Sanaka,
Advocate for Defendant No.7 in O.S.No.2152/2006 and Advocate for
Defendant No.4 in O.S.No.1854/2007 and Defendant Nos. 8 to 10 in
O.S.No.1854/2007 are set exparte, and the matter having stood over for
consideration till this day, this Court delivered the following:
C O M M O N J U D G M E N T
These two suits are clubbed as per orders dated 06.10.2009 in
I.A.No. 711/2009 for joint trial and it is ordered that the evidence recorded in O.S.No.2152/2006 shall be treated as evidence in O.S.No.1854/2007.
Hence, these two suits are being disposed of by this common judgment.
2.O.S.No. 2152/2006 is filed by the plaintiff seeking relief of partition and separate possession of the suit schedule property.
3.O.S.No.1854/2007 is filed by the plaintiff seeking partition and 3 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 separate possession of the suit schedule properties, for depositing of rent amount and also for mandatory injunction.
4.For adjudicating the issues involved in these two suits in proper perspective, the pleadings of respective parties in both these suits are enumerated as under:
Plaint Pleadings in O.S.No. 2152/2006:
This suit is filed by the sole plaintiff seeking passing of a preliminary decree for partition and separate possession of the suit schedule property which is open land admeasuring 44.2 Sq.Yds (amended as per orders in
I.A.No. 880/2013, dated 22.11.2013) consisting of open space and out house situated at House bearing No. 11213, Viveknagar, Chikkadpalli,
Hyderabad and allot one such 1/3rd share to the plaintiff and put him in separate possession.
2.The averments of the amended plaint in this suit which is filed on 27.08.2014 are traced out as under:
The plaintiff’s mother late Dr. B. Saraswathi W/o. late
B. Dharmalingachary was the absolute owner and possessor of the property admeasuring 600 Sq.Yds in house bearing No.11213, Viveknagar,
Chikkadpally, Hyderabad consisting seven (7) shops and eight (8) house rooms and an open space. Late B.Saraswathi and late B. Dharmalingachary blessed with three sons and one daughter. The plaintiff is the second son and defendant No.1 is first son and defendant No.2 is daughterinlaw and wife of late B. Ramachandra Chary who died in February, 2006, who was the third son of Smt. B. Saraswathi. B. Dharmalingachary died 23 years 4 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 back. Dr. B. Saraswathi during her life period executed a registered will bearing Doc. No. 29/1981 by dividing the constructed property to her three sons and daughter but left some open space admeasuring 80 Sq.Yds undividing it, which is kept as common property to all three sons which is the suit schedule property. (Para No.B1 added as per orders in I.A.No.
880/2013, dated 22.11.2013). The GHMC of Hyderabad has taken up road widening from Narayanaguda Junction to Musheerabad Junction for Metro
Rail project, in this regard an area measuring 38.17 Sq.Yds of the suit property was acquired by the Special Deputy Collector, Land Acquisition,
GHMC, Hyderabad and a compensation amount of Rs. 14,38,876/ was deposited to the credit of the account of Chief Judge, City Civil Court,
Hyderabad. Since there is a dispute in relation to the distribution of the compensation amount, the above said amount is lying to the account of
Chief Judge, City Civil Court, Hyderabad. Plaintiff is taking necessary steps to file his claim statement before the Hon’ble III Addl. Chief Judge Court, and seek his share of the compensation amount in O.P.No.976/2012. At the time of the suit, the suit property was tentatively measured at 80
Sq.Yds but in fact the suit property measured 82.41 Sq.Yds. In view of the acquisition of an area of 38.17 Sq.Yds out of the suit property, the property now available for partition measures 44.24 Sq.Yds. The plaintiff is having 1/3rd share in the suit property now measuring 44.24 Sq.Yds and defendants 1 and 2 to 5 are having 1/3rd share each and Smt. K. Jayasri who is defendant No.6 got impleaded as defendant and claiming 1/4th share in suit schedule property. The seven (7) shops and (8) rooms are divided between three sons and a daughter as shop No. 1 (10 x 12), shop
No. 2 (10 x 12) and room No. 1 (10 x 12), room No. 2 (10 x 10) and room 5 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 no. 7 (10x10) was given to third son Ramachandra Chary and the second son who is the plaintiff was given shop No. 384 (10 x 12) and room No.
3(10 x 12) room No.8 (10 x 14) and shop 5 and 6 (10 x 4) and room No.4 (10 x 4) room No. 5 (10 x 10) and room No. 6 (10 x 8), was given to first son B. Siddartha, Shop No.7 was given to daughter Smt. K. Jayasree. The stair case and bath room given to B. Ramachandra Chari. The present suit schedule property is out house and open space consisting of 80 Sq.Yds which comes back on Shop No. 8, 9 and 10 as per Will of Smt. Late Dr. B.
Saraswathi the suit schedule property is under the custody of late B.
Dharmalingachary till his death, after his demise the said property was common property of the plaintiff and defendants. Defendants 1 and 2 are commonly using the said suit schedule property to common usage. The said suit schedule property was common and joint family property which was not divided between the plaintiff and defendants. The plaintiff approached the defendant No.1 in the month of January, 2006 and requested to partition the suit schedule property but the defendant No.1 under guise of possession is trying to alienate the suit schedule property to third parties. Plaintiff at last conducted a panchayath in the month of
September, 2006 by calling family elders and demanded to partition the suit schedule property, but the defendant denied partition of the suit schedule property and trying to alienate the suit schedule property to third parties. There is no option left to the plaintiff except by this suit. The plaintiff is entitled for 1/3rd share and the defendants 1 and 2 are entitled for 1/3rd share each. Hence the suit.
3.The 1st defendant has filed a written statement on 12.04.2007 6 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 opposing the relief claimed in the suit with the following averments:
The property which is shown as admeasuring 600 Sq.Yds but the actual measuring is 672 Sq.Yds as per the Will Doc. No.29/1981, dated 10.10.1981 executed at the SRO Chikkdpally, Hyderabad – 500020 and the 2nd defendant is not a wife of late B. Ramachandra Chari who died in the month of February, 2006 who was the third son of Dr. B. Saraswathi and
B. Dharmalinga Chari who died 23 years back and the second defendant B.
Nagarajmani is not legally wedded wife, and she has no right to represent on behalf B. Ramachandra Chari who died recently. The first wife was died on the 06.02.1989 and her only daughter age about 23 years, major and handicapped and not yet married whose name is Miss Datrisri, at present staying at Visakhapatnam. The present suit schedule property is outhouse and open space consisting of 80 sq.Yds which comes back of shop
No.9 and 10 as per the Will of late Dr.Saraswathi, the suit schedule property was under the custody of late Dharmalinga Chari, was transferred and declared to be enjoyed by his eldest son Mr. B. Siddhartha who is the 1st defendant in the present case. Since then suit schedule property including the shop Nos.9 and 10 are under the custody and possession of the defendant No.1. Mr. B. Dharmalingachari during his life time with love and affection and consideration declared the suit schedule property in favour of the defendant No.1 before the plaintiff and the defendant No.1 and her daughter Smt. Jaishree and the D1 is as an absolute owner and possessor of the suit schedule property without any objection or hindrance, so the defendant No.1 has paid the old debts worth about Rs. 6,00,000/ which belongs to late Sri B. Dharmalinga Chary and also paid another Rs.
7 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 4,00,000/ towards maintenance and development of the suit schedule property. As an elder son of B. Dharmalinga Chary (late), the responsibility to his eldest son to pay the old debts for his mental peace and B.P. Control, so the late father considered all these moral responsibility and sacrifices and respect on the elders considered as a good son and gifted the schedule property before the other legal heirs who are No.1 B. Chandrasekhar, 2). B.
Ramachandra Chary and 3). Smt. K. Jaishree in favour of B. Siddhartha who is the eldest son of B. Dharmalinga Chary/defendant No.1 in the matter to enjoy the property without any objections from any other legal heirs. Mr. B. Siddhartha is a Govt. Employee and has decided to transfer the suit schedule property in the name of his wife Smt. B. Nagamani on 19th Day of October, 2002. From that date the wife of defendant No.1 is looking the said schedule property by all means as an absolute owner and possessor. The said schedule property transferred in the municipal record w.e.f 05.07.2000 under Section 208 of the HMC Act of 1955 on the strength of the document produced by her. The change of name is registered as B.B. Nagamani bearing H.No.11213, at Chikkadpally,
Hyderabad–500020 under certificate No. 728/1187/TC3/MCH/2000 dated 06.07.2000. Since then and now she is paying MCH taxes regularly without delay and default as on today. The plaintiff Mr. B. Chandra sekhar as per the Will transferred his entire property in the name of his wife Smt.
Bharathi Devi before the elders as he is suffering with mental agony, therefore this plaintiff has no right to file partition suit against the defendant No.1 and this suit is liable to be dismissed with costs.
4.The 1st defendant has filed his amended written statement on 8 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 29.12.2008 reiterating the averments of his written statement filed on 12.04.2007 and contended that the 3rd defendant has no claim against the 2nd defendant as she was partitioned by the joint Hindu Family about 40 years back.
5.The 2nd defendant has filed her written statement originally on 08.02.2007 seeking for passing of a preliminary decree by allotting 1/3rd share to the 2nd defendant also.
a)The 2nd defendant has filed additional written statement on 18.12.2008 to allot any share to the 3rd defendant, with the following averments.
The suit property of 80 Sq.Yds was originally bequeathed to the father of the plaintiff by the mother of the plaintiff through a Registered
Will, dated 10.10.1981. The father and mother of the plaintiff expired.
The father of the plaintiff died intestate. The suit property equally goes to three sons i.e., plaintiff, D1 and D2, the daughter D3 K. Jayashree has no right in the suit property. The D3 only to harass and grab the property impleaded herself in the proceedings. D1 wrongly executed gift deed in favour of his wife without valid rights. The document executed without ownership has no value in the eye of law. The alleged gift deed is a self made document and not valid and not binding on the plaintiff and D2.
The suit property has to be divided into 3 equal shares between the plaintiff, D1 and D2. The daughter D3 has no right of any nature in the suit property, the defendant already filed O.S.No.1854/2007 on the file of
V Senior Civil Judge for partition of the suit property which is pending 9 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
before this Court. The second defendant therefore, prayed not to allot any
share to the defendant No.3 in the suit property as D3 is not entitled for a share in the property.
6.The 3rd defendant has filed a separate written statement contending that the plaintiff is entitled to 1/4th share and the other 3/4th share is to be divided amongst this defendant, defendants 1 and 2 with her children, with the following averments:
The plaintiff and defendant No.1 are natural brothers. Apart from plaintiff and defendant No.1, this defendant has another brother by name
B. Ramachandra Chari who died on 07.02.2006. B. Ramachandra Chari through his first wife Smt. Jyothi had one daughter by name Datrisri. After the death of Smt. Jyothi, late B. Ramachandra Chari married defendant
No.2 and through her Raja vinaya Chandra, Sri Vidya, Anand Sai were born. Two sons and two daughter’s of late B. Ramachandra Chari are not made parties to the suit having succeeded to the property left by their father. This defendant is elder daughter of B. Dharmalingachari and B.
Saraswathi. The plaintiff, defendant No.1 and late B. Ramachandra Chari are her younger brothers. This defendant’s mother was absolute owner and possessor of property bearing municipal No.11213, measuring 672
Sq.yds situated at Chikkadpally, Hyderabad having purchased the same under the registered sale deed bearing Doc. No.750/1953 dated 15.05.1953 and the said sale deed was registered in the office of the
District Registrar, Hyderabad. There are mulgies facing the south and the eastern side of the above said property and from southwestern side of the said property, there is an open area which leads to the residential portion 10 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 which is located on the northern side of the above said property. During the life time of her mother B.Saraswathi, she has executed a registered will bearing Doc. No.29/1981 dated 10th October, 1981 registered in the office of the SubRegistrar, Chikkadpally, Hyderabad bequeathing her properties in favour of her husband namely Dharmalingachari and her four children i.e., plaintiff, defendant No.1 husband of defendant No.2 and defendant
No.3 along with the said registered will, a sketch plan was also enclosed giving details of the allotments made therein. Allegation of the plaintiff that his mother left 80 Sq.yds of open space undivided which is to be used as a common property by all the three sons is not correct and denied. In fact, the said open space is to be enjoyed by the plaintiff, defendant No.1, defendant No.2 and other heirs of late B. Ramachandra Chari and this defendant. The plaintiff has failed to give the details of the location of the suit schedule property. The measurement of the suit schedule property is also not correct. Apart from B. Nagarajamani (defendant No.2) and B. Raja
Vinaya Chandra, B. Ramachandra Chari left Datrisri, Sri Vidya and Ananda
Sai as his legal heirs. This defendant’s mother has bequeathed room no.1 measuring 10 x 13 to Dharmalinga Chari. It was also stated in the will that after his demise the said room shall go to B. Ramachandra Chari. Likewise, room No.2 measuring 10 x 12 and room No.7 measuring 10 x 10 was given to B. Ramachandra Chari. That room No.3 measuring 10 x 12 and room
No.8 measuring 10 x 16 was bequeathed to the plaintiff. Likewise, room
No.4 measuring 10 x 14 and room No.5 measuring 10 x 10 and room No.6 measuring 10 x 8 was bequeathed to defendant No.1. This defendant’s mother also bequeathed shop Nos.1 and 2 to late Ramachandra Chari,
Shop Nos.3 and 4 to the plaintiff and shop Nos.5 and 6 to defendant No.1 11 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and shop No.7 to this defendant. Likewise, B. Saraswathi bequeathed three small shops bearing Nos.8 to 10 and out house behind those shops along with open space measuring 75.8 Sq.Yds in favour of B. Dharmalinga
Chari. There is a stair case by the side of room No.7 and another stair case by the side of room No.2. B. Saraswathi during her life time has executed a registered gift deed in favour of this defendant in respect of open terrace measuring 175 Sq.Yds covered by portion of premises bearing Municipal
No. 11213, situated at Chikkadpally, Hyderabad. Under the said gift deed, this defendant has been given right and liberty to use the stair case in existence to reach the terrace of the property. B. Saraswathi died on 15.02.1983 and on her death, the bequests made by her in her registered
Will came in force. This defendant’s father B. Dharmalinga Chari was enjoying the property bequeathed to him under the said Will. This defendant’s father was given the right to enjoy the property for the usufruct/income only. This defendant’s father died on 25.09.1987 and since her mother did not make any provision for succession of the property which Dharmalinga Chari was enjoying and since the plaintiff, defendant
No.1 and others have denied share of defendant No.3 in the above said property, defendant No.3 was constrained to file the suit for partition and separate possession in O.S.No.1854/2007 on the file of the V Senior Civil
Judge, City Civil Court, Hyderabad. The allegation of the plaintiff that the
measurement of the property which is coming at the back of shop Nos.8, 9 and 10 i.e., out house and open is 80 Sq.Yds is incorrect. After the death of Dharmalinga Chari the property which he was enjoying during his life time is to be shared and divided which he was enjoying during his life time is to be shared and divided amongst the plaintiff, defendant No.1, 12 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant No.3 and defendant No.2 along with her children. Since the suit schedule property herein is part of the suit schedule property in O.S.No.
1854/2007, this defendant has filed impleading petition I.A.No.736/2008 in O.S.No.2152/2006 on the file of the V Senior Civil Judge City Civil
Court, Hyderabad to implead her in the said suit as the parties therein without making this defendant as party in the said suit wanted to knock away the property among themselves malafidely. The said implead petition was allowed on 10.09.2008 and by virtue of the orders passed in the said petition this defendant is added as party defendant No.3 in the suit. This defendant for want of knowledge deny that a panchayat was conducted in the month of September, 2006 by calling family elders and a demand for partition of the family property was made but defendant No.1 denied to partition the suit property. The plaintiff is not entitled to seek 1/3rd share so also defendants 1 and 2 are not entitled for 1/3 share each in the suit schedule property. Infact, the suit schedule property is succeeded by this defendant, the plaintiff, defendant No.1, defendant No.2 and her children. This defendant is entitled to 1/4th share in the suit property so also, the plaintiff and defendant No.1 and defendant No.2 along with her children are entitled to 1/4th share. The plaintiff is entitled to 1/4th share and the other 3/4th share is to be divided amongst this defendant, defendant No.1 and defendant No.2 with her children.
7.The 7th defendant has filed a written statement seeking for passing of preliminary decree in favour of the plaintiff for 1/3rd share in the suit schedule property and for 1/8th share to her as the legal heir of late B.
Ramachandra Chary with the following averments: 13 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
The defendant No.7 is entitled to 1/8th share of the suit schedule property as a legal heir of the late B. Ramachandra Chari. Late B.
Ramachandari first married B. Jyothi and through that marriage B.
Dhatrisri i.e., defendant No.7 was born. After the death of her mother B.
Jyothi, her father remarried defendant No.2 and from his second marriage defendants 3 to 5 were born. At the cost of repetition, this defendant submits that defendant No.2 is the second wife of late. B. Ramachandra
Chari and not the only wife as shown in the genealogical tree. Further defendant No.7 is not born through defendant No.2 as shown in the genealogical tree but D2 is only the step mother of defendant No.7. The defendant No.7 denies that the plaintiff is entitled 1/3rd share in the suit schedule property, but the plaintiff is entitled 1/4th share of the suit schedule property. Late B. Ramachandra Chari through his second wife i.e., defendant No.2 had three children namely B. Raja Vinay Chandra, B.
Srividya and B. Anand Sai. Subsequently father of defendant No.7 died on 07.02.2006 leaving behind defendant No.7 and his second wife defendant
No.2 as his true legal heirs, who have succeeded to the properties left behind by father of defendant No.7. Since the remarriage of defendant
No.7’s father with defendant No.2, the defendant No.7 is residing at
Viskahapatnam with maternal aunt of defendant No.7 to avoid disturbances with her step mother who is defendant No.2. The defendant
No.7 paternal grand mother was the absolute owner and title holder of the suit scheduled property being Municipal No.11213, for an extent of 672
S.Yds., situated at Chikkadpally, Hyderabad. The said suit scheduled property was purchased by grand mother of defendant No.7 under a registered sale deed document No. 750/1953 dated 15.05.1953 and was 14 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 registered in the Office of the District Registrar, Hyderabad. The defendant
No.7’s grandmother by name Dr. B. Saraswathi during her life time has executed a registered Will bearing Doc. No.291/1981 dated 10.10.1981 registered in the office of the SubRegistrar, Chikkadpally, Hyderabad bequeathing her properties in favour of the husband by name Sri B.
Dharmalinga Chari and her four children i.e., plaintiff, and defendant
No.1, defendant No.6 and father of defendant No.7. As per the terms of the page No.3 and clauseVI of the registered Will dated 10.10.1981, her paternal grand mother has bequeathed the shop Nos. 8, 9 and 10 out house behind the shops and open space adjacent to it in favour of her grand father B. Dharmalinga Chary. In the said will it was stated that grand father of defendant No.7 will be the rightful owner for the usufruct, income from the constructions on the said areas for his life. B.
Dharamalingachari was given rights to enjoy the property during his life with no rights to alienate the suit property. The grand mother of defendant
No.7 died on 15.02.1983 and on her death the bequest made by her came in force. During the life time of the defendant No.7’s grandfather he was enjoying the property bequeathed to him. The defendant No.7 submits that her grand father B. Dharmalinga Chary died on 25.10.1987. On his death the properties bequeathed to her grand father by her grand mother were succeeded by the plaintiff, defendant No.1, defendant No.6 and the legal heirs of late B. Ramachandrachari. Defendant No.7 is one of the legal heirs of late B. Ramachandra Chari, she has an equal share along with defendant No.2. Defendant No.7 repeatedly requested for mediation by the brothers and sister of her father to partition the suit scheduled properties as per the registered Will of the late Smt. B. Saraswathi who is 15 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 paternal grand mother of defendant no.7, but to her utter surprise, even they hesitated to come forward and rescue defendant No.7’s agony. The defendant No.7 filed O.S.No.1977/2008 before this court for partition and mesne profits of bequeathed share of defendant No.7 father as per the Will which is pending for adjudication. After filing of suit O.S.No.1977/2008 for partition, defendant No.2 is making false allegations that she does not know who defendant No.7 is and playing fraud on the court by suppressing material facts and falsifying information under oath. Further, defendant no.2 is deliberately denying she is second wife and falsely claiming she does not know who defendant no.7 is with intention to grab the property.
Defendant No.2 is grabbing property belonging to other coowners resulting in suits and counter suits between defendant No.2 and other co owners. Defendant No.2 has evil eye on the property and falsely denying the relationship of D7 with her father (father of D7) with an intention to grab the property.
8.The record discloses that originally, the suit is filed against the three defendants. However, the defendants 3 to 5 are added as parties in
I.A.No.1004/2007 and the defendant No.6 is added as per orders in
I.A.No.736/2008, dated 10.09.2008 and the 7th defendant is added as per orders in I.A.No.189/2014 dated 14.08.2014.
a)The defendants 3 to 5 who are the children of the 2nd defendant have not filed any written statement.
b)The 3rd defendant by name Smt. K. Jayasree is shown as 6th 16 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant in the amended plaint which is filed on 27.08.2014.
9.On the basis of the above pleadings, the following issues are framed on 11.06.2007 in O.S.No.2152/2006 namely;
1. Whether the plaintiff is entitled for partition of the suit schedule property and entitle for 1/3rd share of the suit schedule property as prayed for?
2. Whether the plaintiff is entitled for partition of the suit schedule property?
3. To what relief?
Plaint averments in O.S.No.1854/2007:
This suit is filed by the plaintiff seeking the following reliefs:
i). to pass judgment and decree for partition of suit schedule property in four equal shares and allot one such share to the plaintiff.
ii). to pass final decree and deliver exclusive possession of the alloted share to the plaintiff.
iii). to direct defendant Nos.8 to 10 to deposit rent amount to the credit of the suit account in respect of the different portion in their occupation and to pay 25% in the rent amount to the plaintiff.
a) to direct the defendant Nos. 12 to 14 to deposit the rent amount to the credit of the suit account in respect of the building his occupation constructed on the suit property and to pay 1/4th share in the rent amount to the plaintiff.
iv). to pass mandatory injunction by directing defendant No.11 to demolish the illegal constructions made to the suit property that include the stair case and narrow shop on the ground floor along with encroachments in common passages and wall blocking access to suit property and three AC sheet sheds on first floor and all subsequent modifications and to restore the suit property and common passages to its original position as detailed in the schedule of the property.
17 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
v). to award cost of the suit.
2.The suit schedule property is shown as under:
All that property covered by Municipal No.11213 measuring 44.24 Sq.Yds situated at Chikkadpally, Hyderabad and bounded as under:
On North By : Private Road Leading to Prithivi Apartments
On South By : Tokyo Gifts Shops belong to plaintiff
On East By : Chikkadpally Main Road going towards Musheerabad.
On West By : Room No. 4 & 5 of H.No.11213, Chikkadpally.
(Amended as per Orders dated 19.08.2016 in I.A.No.211/2016)
3. The averments of the amended plaint in O.S.No.1854/2007 which is filed on 24.08.2016 are enumerated as under:
The defendants 1 and 2 are the natural brothers of the plaintiff. Apart from defendant Nos. 1 and 2, plaintiff had another brother by name B.
Ramachandra Chari, who died on 07.02.2006. Late B. Ramachandra Chari through his first wife Smt. Jyothi had one daughter by name Dhatrisri,
Defendant No.4, that after the death of Smt. Jyothi, late B. Ramachandra
Chari married defendant No.3 and through her defendant Nos. 5 to 7 were born. Plaintiff is eldest daughter of Sri B. Dharmalingachari and Smt. B.
Saraswathi, defendants 1 and 2 and late B. Ramachandra Chari are her younger brothers. Plaintiff’s mother was the absolute owner and possessor of property bearing Municipal No.11213, measuring 672 Sq.Yds situated at Chikkadpally, Hyderabad having purchased the same under a registered sale deed bearing Doc No.750/1953 dated 15.05.1953 and the said sale 18 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 deed was registered in the office of the District Registrar, Hyderabad. On south and eastern side of the above said property, there is a road, on the north there is a complex called “Prithvi apartments” and on the western side of the above said property, house properties belonging to different owners are located. There are mulgies facing the south and eastern side of the above said property and from southwestern side of the above said property, there is a open area, which leads to the residential portion, which is located on the northwest side of the above said property. During the life time of plaintiff’s mother B. Sarawathi, she has executed a registered will bearing Doc. No.29/1981, dated 10th October, 1981, registered in the office of the SubRegistrar, Chikkadpally, Hyderabad bequeathing her properties in favour of her husband namely Dharmalingachari and her four children i.e., plaintiff, defendant Nos.1 and 2 and late B.
Ramachandrachari. In terms of the said registered Will, her mother has bequeathed shop No.7 in the above referred property facing the
Chikkadpally road leading to Musheerabad, to the plaintiff. Likewise, Smt.
B. Saraswathii bequeathed three small shops bearing Nos. 8, 9 and 10 and out house behind those shops, which is marked as “B” portion in the said sketch plan along with open space in favour of Sri B.Dharmalingahcari.
The area allotted to B.Dharmalingachari is 75.8 Sq.Yds. Plaintiff’s father also given the right of usage of passages surrounding the house. Smt. B.
Saraswathi wife of Sri B. Dharmalingachari i.e., the mother of the plaintiff has executed a registered gift deed in favour of the plaintiff in respect of open terrace measuring 175 Sq.Yds covered by premises bearing Municipal
No. 11213 situated at Chikkadpally, Hyderabad. The said gift deed was registered as Doc. No.550/1982 in Block.1, Volume No.27 at pages 354 to 19 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 357 on 15.05.1982 in the office of the Sub Registrar, Chikkadpally,
Hyderabad. Under the said gift deed, she was put in possession of the property and plaintiff is enjoying the same as the absolute owner of the property. Apart from the terrace rights, plaintiff has been given right and liberty to use the two stair cases already in existence to reach the terrace of the said property. Smt. B. Saraswathi, mother of the plaintiff and defendant Nos. 1 and 2 and B. Ramachandra Chari died on 15.02.1983 and on her death the bequests made by her in her registered will came in force. B. Dharmalingachari, was enjoying the property bequeathed to him by his wife under the said registered Will as the absolute owner thereof. B.
Dharmalingachari died on 25.10.1987 leaving behind the plaintiff, defendant Nos. 1 and 2 and her another brother B. Ramachandrachari as his legal heirs who have succeeded to the property left by him. Apart from
Shop Nos. 8, 9 and 10 and the outhouse behind the shops in property bearing Municipal No. 11213, situated at Chikkadpally Hyderabad, B.
Dharmalingachari was not having any other properties. B. Ramachandra
Chari died on 07.02.2006 leaving behind defendant Nos. 3 to 7 as his legal heirs, who have succeeded to the properties left by him. In the property left by her father, plaintiff is having 1/4th share. Likewise, defendant Nos.
1 and 2 are having 1/4th share each and the remaining 1/4th share is that of defendants 3 to 7. Plaintiff’s husband retired as a Professor in IIT,
Madras and most of the time during service of her husband, she was at
Chennai. In the property left by her father, defendant No.8 is the tenant occupying out house portion along with single room and stores and defendant No.8 is running a restaurant under the name and style of M/s.
Govind’s Andhara Meals. In respect of the premises in occupation of 20 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant No.8 he is paying monthly rent of Rs. 8,500/ and the said rent is being collected by defendant No.1. After the death of her father, Shop
No.8 as shown in the sketch plan filed along with the suit was demolished and the area of the said shop is being used as passage for the rear side portion being used by defendant No.8. The said act of demolition was carried by defendant Nos. 1 and 2 in the absence and without the consent of the plaintiff. Shop No.9 is being occupied by defendant No.9 on a monthly rent of Rs. 1400/ defendant No.9 is running business under the name and style of M/s. Oriental Steel & Gas Stove Repairs and is paying monthly rent to defendant No.2, shop No.10 is being occupied by defendant No.10 and he is carrying on business under the name and style of M/s. Prabhakar Ghee Stores. The rent in respect of the said premises amounting to Rs. 3,000/ is being paid by defendant No.10 to defendant
No.2. On many occasions plaintiff has asked defendant Nos.1 to 3 to render the accounts in respect of the rents collected by them individually from defendants 8 to 10 but defendants 1 to 3 have always dodged the matter on one pretext or the other and till this date defendant Nos. 1 to 3 have not rendered any accounts. Plaintiff being a share holder in the suit schedule property, she is entitled to 1/4th share in the rent amount collected by defendants 1 to 3. Seeing the evasive attitude of defendants 1 and 2, plaintiff on 01.08.2007 called upon defendant Nos. 1 to 7 to partition the property left by her father and put her in separate possession.
On such demand, defendants 1 to 7 denied plaintiff’s right in her father’s property and have refused to partition the said property. Plaintiff has 1/4th share in her father’s property and she is also entitled to receive 1/4th share in the rent amount being paid by defendant Nos. 8 to 10 to 21 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant Nos. 1 to 3. When the plaintiff has called upon defendant No.8 to 10 to render true and proper account in respect of the rents paid to defendant Nos. 1 to 3 they have refused to pay her 1/4th share in her father’s property. In view of the evasive attitude of defendant Nos. 8 to 10, the rent amount i.e., being paid by them to defendant Nos. 1 to 3 is to be deposited to the credit of the suit account every month so that there will be proper apportionment of the rent amount as per the sharing ratio. In view of the refusal of defendant Nos. 1 to 7 to partition the property left by her father, she had no other alternative except to approach this Court and file suit for partition and separate possession and the defendants 8 to 10 who are the tenants are therefore proper and necessary parties to the suit. B.
Siddartha, Defendant No.1 by registered settlement deed bearing Doc.
No.2395/1999 registered in the office of the SubRegistrar, Chikkadpally on 04.10.1999 has settled northern portion of house property covered by
Municipal No.11213 measuring 102 Sq.Yds situated at Chikkadpally,
Hyderabad in favour of defendant No.11. Along with the said gift settlement deed, a sketch plan was also enclosed demarcating the portion of a gift made by defendant No.1 in favour of defendant No.11. Under the said settlement deed, defendant No.1 has settled room Nos.4 and 5 towards east and west of the house to defendant No.11. In fact, defendant
No.1 had no right to gift the space adjacent to room Nos. 4 and 5 as the said area is to be used by all the legal heirs of B. Saraswathi till stair case portion is constructed for reaching the roof over the mulgies. Apart from that, defendant No.1 also did not have any absolute right to gift the outhouse, single room and the open land with a store to defendant No.11 as the same was not absolute property of defendant No.1. Defendant No.1 22 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 by another registered gift settlement deed bearing Doc. No.2862 of 2002
dated 19.10.2002 registered in the office of the SubRegistrar,
Chikkadpally has made gift of northern portion of house property covered by Municipal no.11213 to defendant No.11. The details of the gift are clearly described on page Nos.6 to 9 of the said gift settlement deed. In the said registered gift deed, defendant No.1 has made gift of 179 Sq.Yds in the property covered by municipal No. 11213, Chikkadpally, Hyderabad.
The measurements as shown by defendant No.1 on page No.7 of the gift deed as referred above are not correct. B. Siddhartha has made gift of outhouse behind shop Nos. 8 to 10 and the open space to defendant No.11.
In fact, the defendant No.1 had no exclusive right to gift the same as the same is being owned by the plaintiff, defendant No.1, defendant No.2 and the legal heirs of B. Ramachandra Chari i.e., defendant No.3 to 7.
Defendant No.1 has fraudulently gifted the portion of the terrace to the extent of 288 Sq.Ft having knowledge that the terrace over the entire residential portion measuring 175 Sq.Yds or 1575 Sq.Ft was gifted to the plaintiff by her mother B. Saraswathi under a registered gift deed bearing
Doc. No.550/1982, registered in Block No.1, Volume No.27 at pages 354 to 357 in the office of the SubRegistrar, Chikkadpally Hyderabad on 15.05.1982. Defendant No.1 had no rights what soever on any portion of the terrace over the residence and plaintiff is the exclusive and absolute owner of the terrace along with all rights transferred through the terrace gift deed. In total defendant No.1 has made gift of 1616 Sq.Feet equivalent to 179 Sq.Yds to defendant No.11, defendant No.1 has malafidely made gift of the above said area of which he is not exclusive owner. Apart from that defendant No.1 has made gift of the so called 23 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 portion owned by him twice. The gift deed dated 04.10.1999 does not give the details and the measurements of the various portions and the gift settlement deed dated 19.10.2002 give the details of the gift and also the measurements of the various portions. The increase in the gifted area from 918 Sq.Ft to 1616 Sq.Ft is itself an indication of fraud perpetuated by defendant No.1 and defendant No.11. Defendant No.1 has excluded Shop
No.8, Shop No.9 and Shop No.10 in his gift deed executed in 1999 but included the same in the gift deed executed in 2002. Defendant No.1 in collusion with defendant No.11 has played fraud for wrongful gain and dishonestly had made gift of area of which he is not the absolute owner.
Because of the fraudulent gift made by defendant No.1 to 11, the rights of the plaintiff are being affected. Plaintiff has also been made to learn the defendant No.11 has mortgaged the property covered by gift settlement deed dated 19.10.2002 in favour of bank as guarantor in a loan transaction. The subject matter of the suit is more clearly described in the plan annexed to the plaint. In respect of the subject matter of the suit, defendant No.1 has made gift of the property to defendant No.11 by way of registered gift deed. In fact defendant No.1 herein did not have any right to include the subject matter of the suit in the gift deed executed by him in favour of defendant No.11. In roadwidening scheme Municipal
Corporation of Hyderabad has acquired portion of the property belonging to the plaintiff, Siddhartha, Chandrasekhar and legal heirs of late
Ramachandrachari. Malafidely defendant No.1 and defendant No.11 wanted to knock away the compensation amount paid by the Municipal
Corporation in respect of the property acquired by them. When the said fact has come to her knowledge, she has moved objection petition before 24 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the Municipal Corporation and accordingly the compensation amount has been sent to the court. On 05.06.2012 and 06.06.2012 the Municipal
Corporation of Hyderabad has demolished the suit schedule property haphazardly and taking advantage of the same, defendant No.1 and defendant No.11 out of malafide intention has started raising illegal construction without consent of coowners or permission from municipal corporation. At that juncture defendant No.2 on 07.06.2013 has moved an application in I.A.No.449/2012 in O.S.No.2152/2006 restraining the defendant No.1 from changing the nature of the suit property. The said application was heard by the V Senior Civil Judge and Statusquo order was passed and parties to the suit were directed to maintain their position.
Defendant No.11 having knowledge of the statusquo order brushed aside the orders of the status quo passed in this suit by the V Senior Civil Judge,
City Civil Court, Hyderabad and has continued raising construction in the suit property. The defendant No.11 along with defendant No.1 has forcefully constructed a staircase and a narrow shop on the ground floor, and constructed three AC sheet sheds on the first floor and are still continuing to make additional modifications with intention to dispossess coowners by blocking of access to the suit property. The construction is unsafe, and illegal and therefore needs to be demolished. Defendant
No.11 on a concocted cause of action filed suit O.S.No.1488/2012 on file of X Junior Civil Court, City Civil Court, Hyderabad on 29.06.2012 suppressing information about statusquo order passed in this suit to allow defendant No.11 to proceed openly and uninterruptedly with the illegal constructions. The illegal construction carried out by the defendant No.11 encroaches on common passages, substantially changing the nature of 25 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 property and was done with intention to grab the property. The common passage encroached is to west of the outhouse and east of room 4 and room 5. The encroached common passage to the west of the suit property measures 16’ x 6’ and is portion of area marked as C7 in the plan annexed to the plaint. The encroached common passage is needed for access to the suit property from the residence as an easement of necessity. Defendant
No.11 has constructed a Wall in common passage blocking access to the suit property from the residence. The construction of the Wall is illegal, done without consent and ought to be demolished. Defendant No.11 and defendant No.1 have merged the common passage marked as C7 in the annexed plan with room No.4 and room No.5 of the residence along with portion of th suit property into a single shop on the ground floor thereby completely changing the nature of property. Defendant No.11 on the ground floor has constructed a staircase measuring 3’ x 10’ and a narrow shop measuring 3’ x 8’ in the open space of the suit property which is illegal and ought be demolished. Further on the ground floor defendant
No.11 has merged the outhouse of the suit property with portion of common (C7) to the extent of 16 x 16 into a single shop on the ground floor along with room 4 and 5 thereby changing the nature of the property.
The common passage was to be used by all coowners to access the suit property from the residence and the illegal construction encroaching the common passage to the extent of 16’ x 16’ ought to be demolished and common passage restored as per schedule plan. Defendant No.11 in total has raised 150 Sq.Ft of illegal construction on the ground floor. The defendant No.11 raised three AC sheet sheds on first floor measuring 5’ x 12’, 11’ x 12’, and 12’ x 15’. Two sheds on the first floor measuring 5’ x 12’ 26 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and 11’ x 12’ are road facing and the third shed measuring 12’ x 15’ is to the west of the first two sheds. Defendant No.11 has made 252 Sq.Ft of illegal AC sheet construction on the first floor which ought to be demolished. Plaintiff has annexed a plan clearly showing the extent of illegal constructions done on the suit property after road widening. The very construction made by the defendant No.11 in the suit property without obtaining the consent and concurrence of other share holders is illegal and is liable to be demolished. In view of the subsequent developments, and the illegal construction made by defendant No.11, in the suit property and to common passages in blatant contempt of orders passed by this Court, plaintiff is entitled to seek relief of mandatory injunction against defendant No.11 directing her to demolish the illegal constructions made to the suit property including the staircase and narrow shop on the ground floor along with encroachments in common passages and wall blocking access to suit property and three AC sheet sheds on first floor and to restore the suit property and common passages to its original position as detailed in the schedule of the property. Plaintiff on inquiry in the month of November, 2012 came to know defendant No.11 was trying to alienate the suit property and induct third parties. The defendant No.1 and defendant No.11 posted “ToLet” signs for the suit property, even while the illegal construction was still being raised. Plaintiff on 10.12.2012, filed an application I.A.No.1279/2012 in this suit restraining the defendant No.1 from alienating the suit property and inducting 3rd parties, which was allowed on 21.01.2013. Inspite of having knowledge of orders passed defendant No.11 entered into a private lease agreement with
Mr. Laxman Das, defendant No.12 on 28.11.2012 without knowledge or 27 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 notice to other coowners. Defendant No.1 entered into an illegal agreement with defendant No.12 even before the construction was completed. Defendant No.11 and defendant No.12 have entered into a registered rental agreement dated 28.11.2012, registered as Doc.
no.3834/2012, registered in the office of the SubRegistrar, Chikkadpally,
Hyderabad. Defendant No.12 leased the common property for Rs. 27,000 per month and also paid an interest free deposit of Rs. 9,00,000/ to defendant No.11. Defendant No.11 artificially fixed a low rent in collusion with defendant No.12 to defraud other coowners, that defendant No.12 in collusion with the plaintiff has trespassed and forcefully occupied the illegal structure with intention to make the changes permanent thereby causing irreparable injury to other coowners, that defendant No.12 having knowledge of the status quo order passed by the V Senior Civil Judge in
I.A.No.449/2012 in suit O.S.No.2152/2006 and having knowledge that defendant No.11 is raising an illegal construction in balance and willful contempt of a court order, went ahead and entered into a private lease agreement with the defendant No.11. Defendant No.12 having knowledge that there are coowners in the suit property and that suits are pending on the suit property, has colluded with defendant No.11 to defraud other co owners. Defendant No.12 in collusion with defendant No.11 filed suit
O.S.No.13/2013 on the file of the X Junior Civil Judge, City Civil Court,
Hyderabad on 02.01.2013 against all coowners seeking perpetual injunction on a false and concocted cause of action, plaintiff is contesting the suit and the same is pending trial. Along with suit O.S.No.13/2013, defendant no.12 filed an I.A.No. 1 of 2013 in O.S.No. 13 of 2013 seeking adinterim injunction against all coowners and an order of statusquo was 28 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 passed on both parties to maintain their positions. While the matter stood thus, defendant No.12 has blatantly and willfully disregarded the orders of status quo and continued renovations and improvements of the suit property in direct contempt of the court orders and is punishable for the same. A contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt. Under the guise of the interim injunction petition, defendant No.12 in collusion with defendant No.11 sought to hold on to the illegal gains and is using the court process to cause delays thereby causing irreparable injury to all other coowners. Defendant No.12 having admitted knowledge of other coowners should have got the permission from all coowners to lease the suit property. Defendant no.11 has inducted defendant No.12 as a 3rd party and under the guise of a lease is trying to extend the duration of her illegal occupation. Collusion between defendant no.11 and defendant No.12 is evident by the very low rent fixed for the suit property and also the intermediating filing of a frivolous lawsuit O.S.No.13/2013 by defendant No.12. The suit O.S.No.13/2013 was filed by defendant no.12 on behalf of defendant No.11 using the service of her advocate allowing her to hold onto the fruits obtained by illegal occupation and with intent to dispossess other coowners. Collusion between defendant No.11 and defendant No.12 is further evidenced by the fact that defendant No.11 was not made party to suit O.S.No.13/2013 although she is a proper and necessary party. Defendant No.11 in March of 2013, has inducted another third party M. Nagaraju, defendant no.13.
Defendant No.13 in a private agreement leased a shop on first floor measuring 11’ x 12’ for Rs. 5,000/ per month and also paid an interest free deposit of Rs. 2,00,000/ to the defendant No.11. In October, 2013, 29 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant No.11 inducted B. Laxman Rao, defendant no.14 as additional third party and leased the second shop measuring 3’ x 8’ on ground floor for Rs. 4,000/ per month taking an advance of Rs. 1,50,000/. Defendant
No.11 artificially fixed low rents in collusion with defendants 12 to 14 by taking huge interest free deposits to offset the low monthly rents thereby defrauding other coowners. Further, defendants 13 and 14 were inducted into the suit property in direct contempt of orders in I.A.No.1279/2012 in this suit prohibiting defendants from inducting third parties. Defendant
No.11 continues to induct other 3rd parties and has posted “ToLet” signs to lease out the remaining shop on the first floor. After the road widening of the suit property, defendant No.11 styling herself to be as absolute owner of the suit property and in the rear side varandah portion has raised construction consisting of ground and upper floors. Defendant No.11 has encroached on common passages surrounding the residential portion which is needed to access the suit property as easement of necessity. After completion of the construction, defendant No.11 has inducted defendant
No.12 to 14 in the constructions made in the suit property on monthly rents of Rs. 27,000/ Rs. 5,000/ and Rs. 4,000/ respectively. Apart from that defendant No.11 has also taken various sums of Rs. 9,00,000/ and
Rs. 2,00,000/ and another unknown amount as security deposit at the cost of fixation of low rents. The very constructions made by the defendant
No.11 in the suit property without obtaining the consent and concurrence of other share holders is illegal and is liable to be demolished. Defendant
No.11 has no right to receive the rent in respect of the constructions made in the suit property. In fact the very gift deed executed by defendant No.1 in favour of defendant No.11 is illegal and the same is not binding upon 30 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the plaintiff. Pending disposal of the suit defendant No.12 be directed to deposit the rent to the credit of the suit account. Plaintiff in the rent amount is entitled to 1/4th share. The Municipal Corporation of
Hyderabad in order to avoid congestion of vehicular movement due to heavy traffic and for the purpose of metro rail project has taken up road widening from Narayanaguda junction to Musheerabad junction to a width of 100 feet road and in this regard an area measuring 38.17 Sq..Yds of the suit property was acquired by the Special Deputy Collector, Land
Acquisition, GHMC, Hyderabad and compensation amount of
Rs. 14,38,876 was deposited to the credit of the account of Chief Judge,
City Civil Court, Hyderabad. At the time of filing of the suit, the suit property was tentatively measured at 75.8 Sq.Yds but infact the suit property measured 82.41 Sq.Yds. In view of the acquisition of an area of 38.17 Sq.Yds out of the suit property, the property now available for partition measures 44.24 Sq.Yds. Plaintiff has 1/4th share in the suit property now measuring 44.24 Sq.Yds and defendant No.1 and 2 are having 1/4th share each and the remaining 1/4th share is that of the defendants 3 to 7. (Amended as per orders dated 19.08.2016 in I.A.No.211 of 2016). Hence, the suit.
4. The 1st defendant has filed a written statement opposing the relief claimed in the suit with the following averments:
The gift deed is false and created and prepared when her mother was fell ill and not mentally sound. The said gift deed is for vacant space (nature) not for terrace. In this connection the plaintiff filed suit for terrace rights in the year, 1997 in O.S.No.2234/1997 and it was dismissed 31 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 on 21.01.2004, further there was no appeal and there was no terrace of the plaintiff. In this connection plaintiff’s appeal for sanction of the 1st and 2nd floors on the old damaged house No. 11213 on the open terrace but the town planning officer and concerned authorities of MCH refused against the complaint on 05.02.1997 by the D1, D2 and D3 and MCH authorities given acknowledgment to the defendant No.1. So there is no question of rights as per the gift deed Doc. No.550/1982, Book No.1 volume No.27 at pages 354 to 357 as the gift deed was not recognized by the family members and not signed by te D1, D2 and D3 at the time of registration.
So the gift deed is not maintainable by all means. The plaintiff has no right to claim for terrace as per the gift deed. B. Dharmalinga Chary her father was enjoying the property bequeathed to him by his wife. It is true that B. Dharmalinga Chary died on 25.10.1987 leaving behind the plaintiff, defendants 1, 2 and 3. The plaintiff admitted the facts that her husband retired as a professor in IIT, Madras and most of the time during service of her husband, she was at Madras and she was not in possession on even one inch place from the date and as on today. So she has no right to claim the suit schedule property as per the Gift Deed and Will Deed. Plaintiff states that in the property left her father, defendant No.8 is the tenant by the defendant no.1 occupying out house portion along with single room and stores, the defendant No.8 running a restaurant under the name and style of M/s. Govindas Andhra Meals in respect of the premises in occupation of defendant No.8 is paying monthly rent of Rs. 8,500/ and the said rent is being collected by the D1 who is the owner of suit schedule property. The defendant No.1 is the eldest son of B. Dharmalinga Chary who died on 25.10.1987, during his life time Mr. B.Dharmalinga Chary 32 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 given oral gift in favour of his eldest son in the matter of his sincere service to his father and developed the property by evicting the old tenants and paid the income taxes and all other taxes to be paid by
Mr. B. Dharmalinga Chary. Therefore, B.Dharmalinga Chary owner of the vacant place shop No. 8, 9 and 10 without house behind the shops in property bearing Municipal No. 11213/A/A situated at Chikkadpally,
Hyderabad which portion isunder the custody of the D1 was declared by his father as an absolute owner in the matter of enjoyment and at the time of declaring the defendant No.1 as owner, each and everybody of the family members and elders in the gold smith community appreciated and admitted the decision of the Kartha of Hindu undivided joint family. The defendant No.9 is running a business under the name and style of M/s.
Oriented Steel and Gas Stove Repair, shop No.10 is being occupied by
Defendant No.10 carrying on business under the name and style of M/s.
Prabhakar Ghee Stores paying monthly rent Rs 3,000/ through his authorized agent of defendant No.1. Plaintiff has no right to any profit and loss relating to the defendants 1 to 3 and she has no right to file any claim petition, objection on the suit schedule property. The defendant No.1 is the kartha of Hindu joint family property and the eldest son of Mr. B.
Dharmalingachary and Smt. Saraswathi according to Hindu law, the
Kartha is the supreme in the matter of decisions, borrowing and payments.
The plaintiff is the eldest daughter of B. Dharmalingachary who was married on 02.05.1996 at the age of 15 years. At the time of her marriage towards Pasupu Kumkumka, 600 yards vacant place at Vizag was given towards her share by Dharmalinga Chary and her family members. Now the plaintiff is having two houses at Miyapur, each house is 300 Sq.Yds, in 33 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 addition she is having two big flats at Jetkar Bhavan, at Chikkadpally, she is having 2000 Sq.Yds at Keesaragutta known as Gahtkesar. The plaintiff is having unlimited properties not only in A.P. but also having own houses at
T. Nagar, Chennai, and vacant lands nearby at Madras. The plaintiff has to return excess property acquired from her parents without justification of the defendants. The plaintiff has no right to demand any explanations accounts and to interfere in the personal mater of the Kartha of Hindu
Joint Family who is Mr. B. Siddartha as D1. This defendant therefore prays this court to dismiss the suit with exemplary costs.
5.The 2nd defendant has filed a separate written statement seeking dismissal of the suit by contending as under:
The suit filed by plaintiff is false, misconceived and not maintainable either under law or on facts. It is true that the defendants 1 and 2 are natural brothers of plaintiff, it is also true that late Ramachandra Chary who died in accident on 07.02.2006 is the brother of plaintiff and defendants 1 and 2. It is also true that late Ramachandra Chary through his first wife Smt. Jyothi had one daughter by name Dhatrisri who is defendant No.4. It is also true that late B. Ramachandra Chary married defendant No.3 through defendant No.3, defendants 5 to 7 were born. It is true that plaintiff is eldest daughter of B. Dharmalingachary and B.
Saraswathi. It is also true that defendants 1 and 2 including late B.
Ramachandrachary are younger brothers of plaintiffs. It is true that their mother late B. Saraswathi is the absolute owner and possessor of house bearing No.11213, admeasuring 672 Sq.Yds situated at Chikkadpally,
Hyderabad. It is also true that the same was purchased by B. Saraswathi 34 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 vide registered sale deed bearing Doc. No. 750/1953 dated 15.05.1953. It is also true that the dimensions mentioned in the plant in respect of four sides are true and correct. It is also true that there is an open area which leads to residential portions, which is located at northeast side of the suit schedule property. It is true that during life period of B. Saraswathi, she executed a registered Will bearing Doc. No.29/1981 dated 10.10.1981.
This will deed was executed in favour Dharmalinga Chary and her four children i.e., who are plaintiff and defendants 1 and 2 including late B.
Ramachandra Chary. It is also true that along with registered Will deed, a sketch plan was also enclosed giving details of the allotments. It is also true that as per the Will deed, shop No.7 was given to plaintiff. It is true that as per the will deed 75.8 Sq.Yds was allotted to late B. Dharmalinga
Chary who is the husband of B. Saraswathi and father of plaintiff and defendant No.1 and 2 and B. Ramachandra Chary. It is also true that the passage left is easementary right to all the family members. It is false to say that as per the gift deed bearing Doc. No.550/1982 dated 15.05.1982, the plaintiff is entitled for open terrace admeasuring 175 Sq.Yds covered by premises municipal No.11213, the said gift deed is fabricated by the plaintiff only for the purpose of this case and she is not entitled in respect of open terrace admeasuring 175 Sq.Yds. The said gift deed is not at all enforceable, as it is fabricated and no possession was given to the plaintiff as mentioned in the plaint and she is not at all a owner for the said terrace and she was not put in possession. Hence, she does not have any right in the terrace as she mentioned and no right was given to plaintiff to use two staircases. It is true that after the death of B. Saraswathi on 15.02.1983 the plaintiff and defendant No.1 and 2 including B. Ramachandra Chary 35 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and B. Dharmalinga Chary bequeathed the properties as per the registered will deed and the will deed came into force. It is true that late B.
Dharmalinga Chary died on 25.10.1987 leaving behind plaintiff, defendants 1 and 2 including late B. Ramachandra Chary as his legal heirs who succeeded to the property left by him. It is true that B. Ramachandra
Chary who is the brother of plaintiff and defendant No.1 and 2 died on 07.02.2006 leaving behind defendant no.3 to 7 as his legal heirs. It is true that plaintiff is entitled for 1/4th share in the property left by late
Dharmalinga Chary. It is also true that defendants 1 and 2 are also entitled for 1/4th share each in late Dharmalinga Chary property and for remaining 1/4th share the defendant Nos. 3 to 7 are entitled. It is true that plaintiff’s husband retired as professor in IIT Madras and it is also true that defendant No.8 is the tenant who is occupying the out house portion along with single room. It is also true that the defendant No.8 is running a restaurant under the name and style M/s. Govinds Andhra Meals. It is also true that defendant No.8 is paying monthly rent of Rs. 8,500/ to defendant No.1. It is false to say that after the death of late Dharmalinga
Chary shop No.8 was demolished by defendants 1 and 2, the said shop
No.8 was demolished by defendant No.1 but not defendant No.2. It is true that shop No.9 is occupied by defendant No.9 which is alloted to late B.
Ramachandra Chary and the defendant No.2 is not aware, how much rent is paid by defendant No.9. It is not true to say that shop No.10 is occupied by defendant No.10. The shop No.10 is occupied by defendant No.2 and defendant No.2 is running a public telephone booth through his wife by name B. Vijayabharathi for their livelihood, but the defendant No.2 is not receiving any rent as mentioned in the plaint. The said shops i.e., shop 36 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 nos. 8, 9 and 10 are completely fell to road widening in the master plan, hence those shops and the land covered under the shops do not fall to joint ancestral property. Hence the plaintiff is not entitled for any rent from defendant Nos. 1 to 3. It is false to say that the plaintiff called defendants 1 and 2 on 01.08.2007 along with defendants 3 to 7 for partition of the property left by late Dharmalinga Chary and it is also false to say that on such demand the defendant Nos.1 to 7 denied the plaintiff’s right in late
Dharmalingachary’s property and refused to partition the suit schedule property. The plaintiff herself has her share and she is enjoying accordingly, in order to extract financial gain this false suit is filed. The plaintiff does not have any right or share as prayed, as already she has her share according to the Will deed. The plaintiff got married long back, at the time of her marriage she was blessed with gold, silver, movable and immovable articles, after the same again the plaintiff was given share in this Chikkadpally property and she not satisfied with that property and she need some more financial gain from defendants, that is why she filed this false suit only to extract financial gain from defendants and she is not entitled for the share as prayed. The defendants 1 and 2 including late
Ramachandra Chary’s legal heirs are entitled in the said late Dharmalinga
Chary property but the plaintiff is not entitled in the said property. There is no cause of action to this suit as mentioned by the plaintiff and the court fee paid by the plaintiff is not correct as the schedule property which the plaintiff is claiming is in the hands of defendants 1 to 3. Hence, court fee paid by her is not sufficient. Neither the suit filed by the plaintiff is maintainable under law nor on facts, and has to be dismissed with costs.
37 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
6.The 3rd defendant has filed a written statement seeking to dismiss the suit by contending as under:
It is true that the plaintiff is the sister of defendants 1 and 2 and late
B. Ramachandra Chari. The allegation that B. Ramachandra Chari was having his 1st wife Smt. Jyothi is absolutely false. The allegation that D4 is the daughter of late B. Ramachandra Chari is also false, D4 is no way concerned with the property. D3 is the wife and D5 to D7 are the only children to late B. Ramachandra Chari. The plaintiff is a litigant and with an intention to cause loss to this defendant and her children, she made D4 as party and making all false allegations. It is true that the plaintiff is the eldest daughter of B. Dharmalingachari and Smt. B. Saraswathi. It is true that B. Saraswathi mother of D1 and D2 was the absolute owner of all that premises bearing No.11213 Chikkadpally. It is true that mother of D1 and D2 executed registered Will in 1981, in the said Will, the plaintiff was allotted only shop No.7 but not any other properties. She has no right in the suit schedule property and the suit is liable to be dismissed. The shop
Nos.8, 9 and 10 was allotted to the father of D1 and D2 B. Dharmalinga
Chari. The suit scheduled property is inherited by 3 sons, D1, D2 and B.
Ramachandra Chari. The plaintiff has no right to claim the suit property or any other properties except shop No.7. The allegation that the mother of plaintiff in the registered will has bequeathed open terrace measuring 175
Sq.Yds covered by the premises bearing No. 11213, is categorically denied and false. The premises bearing No.11213 covers in area 672
Sq.Yds. The husband of the plaintiff who is employee working in Hong
Kong recently shifted to Hyderabad along with plaintiff. The question of the plaintiff in possession of the property does not arise. The plaintiff has 38 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 no rights in the terrace. The shop No.7 of the plaintiff is going in road widening, that is the reason the plaintiff jealous on D1 to D3 making false claims. The plaintiff is having so many properties worth crores of rupees still she is claiming to trouble D1 to D3 with a litigation mind. B.
Dharmalinga Chari has not executed any will nor made any arrangement in respect of suit property hence the suit property equally goes to three sons,
D1, D2 and D3. Plaintiff and D4 are no way connected to the suit property. The defendants 5, 6 and 7 have right in the suit property as legal heirs of late B. Ramachandra Chari and children of D3. The plaintiff has no right in the suit scheduled property. The plaintiff is not entitled for 1/4th share in the rents collected and she is not entitled 1/4th share in the property. The allegation that the plaintiff called upon the defendants 1 to 7 to partition the property is categorically denied and false. The plaintiff never demanded the defendants to partition the suit scheduled property.
The defendant No.2 already filed partition suit is respect of 1/3rd share in the suit scheduled property in O.S.No. 2152/2006 on the file of Vth Senior
Civil Judge, at Hyderabad and the same is pending. Hence, this suit is
liable to be dismissed with costs.
7.The 4th defendant has filed a written statement with the following averments as under:
Even as per the document No.2 of the plaint filed by the plaintiff i.e., the certified copy of the registered will, dated 10.10.1981 the property left by B. Dharmalingachari i.e., father of the plaintiff should go to the father of the defendant No.4. It is true that B. Ramachandra Chari died on 07.02.2006 leaving behind defendant No.3 as his true legal heir. The 39 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 plaintiff has no right nor any locus standi to claim for the property of her father as the same should come to the share of the father of the defendant
No.4 as per the registered will deed dated 10.10.1981. In the paraV of the registered will, dated 10.10.1981 the mother of the plaintiff has bequeathed the room No.2 and 7 to the father of this defendant and also room No.1 to the father of the plaintiff and it is also clearly mentioned in the will that after th demise of the father of the plaintiff the same room
No.1 will go to the father of this defendant and in the said registered will the shop Nos. 1 and 2 were also proportionated the share of the father of this defendant. Till the death of this defendant’s father there were no disturbances in this defendant’s family and the property was jointly enjoyed by both this defendant and the defendant Nos. 3 and 5 to 7 along with this defendant’s father, but immediately after the death of this defendant’s father i.e., on 07.02.2006 the defendant Nos. 3, 5 to 7 created unpleasant situations, environment and also the step motherly attitude towards this defendant, for the best reasons know to them.
8.The 11th defendant has filed a separate written statement by contending as under:
It is true and correct that Smt. B. Saraswathi, mother of the plaintiff and defendant Nos. 1 and 2 and B. Ramachandrachari died on 15.02.1983 and on her death the bequests made by her in her registered will came in force. It is true and correct that her father B. Dharmalingachari died on 25.10.1987 leaving behind the plaintiff, defendant Nos.1 and 2 and her another brother B. Ramachandra Chari as his legal heirs who have succeeded to the property left by him, apart from shop Nos. 8, 9 and 10 40 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and the out house behind the shops in property bearing Municipal No.11 213, situated at Chikkadpally, Hyderabad. It is false and denied that B.
Ramachandra Chari died 07.02.2006 leaving behind defendant Nos. 3 to 7 as his legal heirs, who have succeeded to the properties left by him, in the property left by her father she is having 1/4th share, likewise, defendant
Nos.1 and 2 are having 1/4th share each and the remaining 1/4th share is that of defendant Nos. 3 to 7. The deceased Sri B. Dharmalinga Chary, father of plaintiff and defendants 1, 2 and father inlaw of the defendant
No.3 during his life time itself orally partitioned the property and accordingly after his death on 25.10.1987 the defendants 1, 2 and defendant No.3 taken the possession of the properties in accordance with the oral partition made by the deceased B. Dharmalingachari. As per the oral partition deed the defendant No.1 coming to the possession of the room No.4 and 5 and accordingly defendant No.2 coming to the possession of shop No.10 was occupied by the defendant No.2 and the shop No.9 was occupied by the defendant No.3 and in the same way the open warandah behind the room nos. 5, 6 and 7 was occupied by the defendants 2 and 3 and they are in possession of the property from the date of death of their father and enjoying the property but unfortunately due to intimidating nature of the plaintiff and due to filing of false cases by the plaintiff no tenant is coming forward to occupy the above said shops, that’s why the above property was given to the tenants on meager rent only. The plaintiff being a very ambitious lady even though as an eldest member of family, she had got hold of major portion of properties of
Smt. B. Saraswathi and even after also she blackmailed and threatened the parents i.e.,. B. Saraswathi and B. Dharmalingachari and knocked away big 41 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 share of the properties from them and not satisfied with that also she had pressurized B. Saraswathi to make illegal gift of upper portion of the above said property which is not there vide Doc. no.550/1982. Although the above said gift is not valid as the gift has not transferred any property to the plaintiff. The Municipal corporation of Hyderabad in order to avoid congestion of vehicular movement due to heavy traffic and for the purpose of metro rail project has taken up road widening from Narayanguda junction to Musheerabad junction to a width of 100 feet road in this regard an area measuring 38.17 Sq.Yds of the suit property was acquired by the
Special Deputy Collector, Land Acquisition, GHMC, Hyderabad and compensation amount of Rs. 14,38,876/ was deposited to the credit of the account of Chief Judge, City Civil Court, Hyderabad. Due to the above said demolition the property of the defendant No.11 was effected and exposed to the road hence she had made some arrangements to close the property she had made like a shop and given the same on rent to the defendant
No.12 and he has also paid very meager rents in view of the threats and continuous harassment made by the plaintiff. The plaintiff is not a coparcener of the defendants 1 to 3 as the father of the defendants 1 to 3 partitioned the property between the defendants 1 to 3 only. The plaintiff is not entitled to claim any share in the suit property as a coparcener because the plaintiff is not a coparcener and cannot claim any share in view of judgment of Hon’ble Supreme Court of India in Civil Appeal
B.No.7217 of 2013 between Prakash and others Vs. Phulvathi. In the said judgment the Hon’ble Supreme Court of India restricted the right of women seeking equal share in the ancestral property and observed that the
Hindu Succession (Amendment) Act 2005 will not give property rights to a 42 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 daughter if the father died before the amendment came into force i.e., on 09.09.2005. Admittedly the father of plaintiff B. Dharmalingachary died on 25.10.1987 itself, as such the plaintiff is not entitled for any share in the property of the deceased B. Dharmalingachary. Even the plaintiff also knows about the oral partition effected by the B. Dharmalingachary that’s why only she had not made any claim upto 2006 but due to her ambitious nature and continuous litigant mentality and not able to see the defendants 1 to 3 prosper, she had filed this present suit and tried to harass and knock away the valuable share of he property highhandedly. Therefore, this suit is liable to be dismissed with exemplary costs.
9.The defendants 12 to 14 have filed a memo adopting the written statement filed by the defendant No.11.
10.On the basis of the above pleadings, the following issues are settled for trial on 23.06.2009 namely;
1. Whether the plaintiff is entitled for partition of the suit schedule property as prayed in the plaint?
2. Whether the plaintiff is entitled for possession of share in the suit schedule property?
3. Whether the plaintiff is entitled to seek relief to direct D8 to D10 to deposit rent to the credit of suit as prayed in the plaint?
4. To what relief?
11.On 19.04.2017 the following three additional issues framed as under:
1. Whether the plaintiff is entitled to seek the relief against defendant Nos. 12 to 14 to direct them to deposit the rent to the credit of the suit as prayed for?
43 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
2. Whether the plaintiff is entitled to seek the relief of mandatory injunction against defendant no.11 for demolition of illegal construction and restoration of suit property and common passage to is original position as prayed for?
3. Whether there is any oral partition between the defendant Nos. 1 to 3 and their father in respect of the properties as constructed by defendant No.1?
12.As already indicated above, the suit in O.S.No.1854/2007 is clubbed with O.S.No.2152/2006 and common evidence is recorded in
O.S.No.2152/2006 by treating the said evidence recorded in the said suit
as evidence in O.S.No.1854/2007 also.
13.In O.S.No.2152/2006, the plaintiff’s wife by name Smt. B. Vijaya
Bharathi is examined as PW1 and got marked Ex.A1 to A3 on her behalf.
The wife of the 1st defendant in O.S.No. 2152/2006 is examined as DW1.
The 6th defendant in O.S.No.2152/2006 who is the plaintiff in
O.S.No.1854/2007 is examined as DW3. Due to inadvertence, she is
described as DW3 instead of DW2 and therefore her evidence shall be treated as DW2.
14.Issue Nos. 1 and 2 in O.S.No. 2152/2006 and issues Nos. 1 to 3 and
additional issue Nos. 1 to 3 in O.S.No.1854 of 2007 :
PW1 B.Vijaya Bharathi is the wife of the plaintiff in
O.S.No.2152/2006. In her chief evidence affidavit, as P.W.1, she has
testified on behalf of the plaintiff to the contents of the plaint in the suit and claimed that late Dr. B. Saraswati wife of late B. Dharmalingachary was the mother of the plaintiff and was the absolute owner of 600 Sq.Yds in house No. 11213, Viveknagar Chikkadpally, Hyderabad, consisting of seven (7) shops and eight (8) rooms along with open space. PW1 has 44 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 further stated that B. Saraswathi during her life time has executed a registered Will deed under the original of Ex.A2 bearing Doc. No. 29/1981,
dated 10.10.1981 by dividing the constructed property among her three
(3) sons and a daughter and left the open space admeasuring 80 Sq.Yds and the said open space is the subject matter of the suit in
O.S.No.2152/2006 and as per the Ex.A2, the suit schedule property was
under the custody of late Darmalaingachary till his death and after his death, it became the common property of the plaintiff and the defendants as joint family property which is liable for partition but the 1st defendant has declined to partition the suit schedule property.
15.PW1 has also claimed in her chief evidence affidavit that
K. Jayasree (6th defendant in O.S.No.2152/2006 and plaintiff in
O.S.No.1854/2007) is entitled for 1/3rd share and the defendants 1 and 2
are entitled for 1/3rd share in the suit schedule property. She has also marked Ex.A1 which is the market value certificate of the suit schedule property and Ex.A3 which is another copy of the registered Will Deed
dated 10.10.1981, though, Ex.A2 is also a certified copy of the said Will.
16.In her crossexamination on behalf of the 2nd defendant in
O.S.No.2152/2006, PW1 has stated that Ramachandra Chary who is the
husband of D2 died recently and D2 and her children are residing in a portion of the suit schedule property.
17.In her cross examination on behalf of the 1st defendant in O.S.No.
2152/2006, PW1 has stated that without dividing the property covered under the Will, her fatherinlaw died 20 years back and denied a 45 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 suggestion that her fatherinlaw has orally gifted the suit schedule property in favour of the 1st defendant due to love and affection in the year, 1987.
18.PW1 has admitted in her further crossexamination that D1 is in possession of the suit schedule property, but denied a suggestion that D1 has gifted the suit schedule property to his wife. She further denied a suggestion that the 1st defendant is the owner of the suit schedule property and the plaintiff is not entitled for any relief.
19.PW1 is also cross examined by the counsel for the 3rd defendant on 30.07.2010 in which, she has stated that the husband of D2 has previously married one Jyothi who died in the year, 1990 and after the death of said
Jyoti, the deceased Ramachandra Chary married D2 and the 1st wife of the deceased Ramachandra Chary had a daughter by name Dhatrishree who is aged 23 years old and she is not added as a party in the suit. She nextly admitted that her motherinlaw bequeathed 80 Sq.Yds of property along with three (3) shops apart from open house under Ex.A3. She also admitted that her mother inlaw executed a registered gift deed on 07.05.1982 in favour of the 3rd defendant conveying the right to use the first floor (ground floor and terrace) together with all rights.
20.In her cross examination on behalf of D3, PW1 has admitted that her father inlaw did not have any right to alienate the suit schedule property.
She nextly admitted that her marriage was originally fixed on 06.02.1989, but it was postponed to 18.02.1989 due to death of B. Jyoti who is the wife of B. Ramachandra Chary and a paper advertisement was also given and after the death of Jyoti who is the 1st wife of B. Ramachandra Chary, they 46 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 shifted to Warasiguda from Chikkadpally.
21.PW1 has admitted Ex.B1 which is the plan showing the suit schedule property house bearing No. 11213 situated at Chikkadpally, and admitted that room Nos. 4 and 5, shop Nos. 8 to 10 and out house, and tht there is passage. She further admitted that the 1st defendant has modified the outhouse clubbing with room Nos. 4 to 6 and common passage, demolishing the walls without obtaining their consent. She has also admitted that the 7th defendant Dhatrishree is born to Ramachandra Chary and B. Jyothi out of their wedlock. She has also stated that the suit schedule property was mortgaged by D1 with United Bank and gifted the property to his wife. She nextly stated that herself and Nagarajamani posted notes on the walls of the suit schedule property that it is in court cases under these two suits. She further admitted that in Ex.B1(a), the affected portion in the road widening is shown and after construction of new building Smt. Nagarajamani inducted defendants 12 to 14 in O.S.No.
1854/2007 as tenants. She stated that the 1st defendant has no exclusive rights to gift 102 Sq.Yds and 179 Sq.Yds in favour his wife Nagamani and also portion of terrace rights to her in an extent of 288 Sq.Ft. PW1 also admitted Ex.B2 which is the photograph showing the old building of the suit schedule property, Exs.B3 and B4 showing the photographs about the demolition work undertaken in the suit schedule property by Nagamani,
Ex.B5 to B6 which are photographs showing the newly constructed building over the suit schedule property with the shops leased out to new tenants or defendants 12 to 14 and Ex.B17 which is C.D. containing the photos under Ex.B2 to B16. She admitted that the defendant No.12 in
O.S.No.1852/2007 is paying a monthly rent of Rs. 30,000/ to Nagamani
47 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and has paid a sum of Rs. 12,00,000/ as security deposit. She further admitted in her cross examination at Page 6 of the typed copy as under: “There is a tenant in the first floor newly constructed building over S.S.P. and the said tenant is defendant No.13 in
O.S.No. 1854/2007 is paying a rent of Rs. 6,000/ per month to
Smt.Nagamani and the said tenant paid a sum of Rs. 2.00 lakhs to
Nagamani towards interest free security deposit. It is true that the said Nagamani was inducted a tenant by name B. Laxman Rao who is defendant No.14 in O.S.No.1854/2007 and he is paying a monthly rent of Rs. 4,000/ per month to Nagamani and the said tenant has also paid a sum of Rs. 1,50,000/ towards security deposit to Nagamani. There is another tenant inducted by
Nagamani in the 1 st floor who is doing real estate consultancy business and the said tenant is paying a sum of Rs. 5,000/ per month to Nagamani and he also paid a sum of Rs. 50,000/ towards security deposit to Nagamani.
Smt. Nagamani has no right to induct the tenants receiving rents from them and to receive security deposit amounts without the consent of coowners. It is true that Smt. Jayasri is only daughter to Smt. Saraswathi and Dharma Linga Chary. It is true that my motherinlaw in her registered Will made clear that after death of her husband the property alloted to him shall be shared by her children.
22.PW1 in her cross examination on behalf of the 7th defendant has admitted that the 7th defendant is the daughter of B. Ramachandra Chary and B. Jyothi and that B. Ramachandra Chary married Smt. Nagarajamani who is also elder sister of PW1 and after the demise of Smt. Jyoti, 7th defendant is brought up by Ramanuja Chary who has no issues. She nextly stated that Ramanuja Chary has no issues and Ramachandra Chary 48 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 used to visit Visakhapatjnam to see her daughter Dhatrishree and he used to stay for two to three months and Nagarajamani alone is receiving rents derived from the property belonging to Ramachandra Chary and after the death of Ramachandra Chary the relatives of Dhatrishree came and requested the 2nd defendant to give her share in the suit schedule property and also the other properties of Ramachandra Chary.
23.DW1 is the wife of 1st defendant in O.S.No. 2152/2006 and she testified in her chief evidence affidavit to the contents of the written statement filed by the 1st defendant. She has testified that her fatherin law late Dharmalingachary during his life time has partitioned the suit schedule property orally between this three sons and had given shop No.9 to late B. Ramachandra Chary, shop No.1 to the plaintiff in
O.S.No.2152/2006 and her fatherinlaw has given his remaining portion
of the property to her husband (1st defendant in O.S.No.2152/2006) and they are enjoying the said portions given by her father inlaw. She further claimed that Smt. Jayasree who is the daughter of Dharmalingachary is not entitled for any relief and the suit filed by her in O.S.No.1854/2007 is liable to be dismissed.
24.In her cross examination on behalf of the plaintiff in
O.S.No.2152/2006, DW1 has denied a suggestion that according to the
Will, (Ex.A1 and A3), her fatherinlaw Dharmalingachary is not having ownership rights over the suit schedule property, but admitted that her motherinlaw has not given ownership rights to her husband (Dharmalingachary) in respect of the suit schedule property and he is having only life time interest. She further admitted that she has not filed 49 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the gift deed executed by her husband in her favour and that in the road widening, portion of the suit schedule property was taken up by the
GHMC. In her further cross examination, at pages 2 to 5 of the typed copy,
Dw1 had admitted as under: “Myself and my husband made necessary charges to the
S.S.P after demolition by GHMC. After that we letout the premises to the tenants i.e., two tenants in the ground floor and in the 1 st floor 3 tenants to do their businesses. We are taking rents from the tenants. In the ground floor I am getting a rent of
Rs. 20,000/ per month and in the first floor I am getting Rs.
10,000/ per month. In the ground floor the tenants are Laxman
Das and Ram Das. In the first floor, Nagaraju, one Muslim person and Laxman Das. I received Rs. 9.00 lakhs from ground floor tenant as security deposit and another tenant gave Rs.
50,000/ as deposit. In the first floor one Nagaraju gave security deposit of Rs. 50,000/.
It is true that the registered gift deed executed by my husband on 19.10.2002 in my favour clearly shows that the SSP belongs to 3 brothers. It is not true to suggest that all the three brothers have equal rights over the rents derived from the tenants and it should be distributed among them.
I am in possession of original gift deed executed by my husband in my favour. I am not going to file the original gift deed into the court.
The xerox copy of registered gift settlement deed is confronted to the witness vide Document No.2862/2002 dated 19.10.2002 and the same is admitted by her and marked as
Ex.B18.
My husband will not come and depose in this case as 50 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 witness. I am also deposing on his behalf. It is not true to suggest that the plaintiff and defendants 2 to 6 are also having equal rights in the SSP and they are also entitled for share in the rents which are deriving out of SSP. The defendant No.6 impleaded in the present suit and she filed a separate suit vide
O.S.No.1854/2007 on the file of XVII Senior Civil Judge, CCC,
Hyderabad and the same is clubbed with the present suit. It is true that the GHMC officials deposited the compensation amount into the court with regard to the SSP due to the disputes are going on in between us.
My husband has signed the written statement and Addl.
Written statement in O.S.No.2152/2006. I am aware of the contents of W.S. and Addl. W.S. filed by defendant No.1. My motherinlaw name is Dr. Saraswathi. It is true that the SSP is owned by Dr. Saraswati, B. Dharma Linga Chari is the husband of Dr. Saraswathi. They blessed with three sons an don daughter.
They are Siddartha, Chandra Shekar, Ramachandra Chari and daughter name is K. Jayashree.
I have not gone through the W.S. filed by defendant No.3.
I am not going to examine any other witnesses in the suits. I am giving evidence in this case on behalf of my husband Siddhartha and also based on my personal knowledge. It is true that my mother inlaw was the owner of property at Chikkadpally measuring 672 Sq.Yds. It is true that the road side facing property is commercial property and rear side there are residential portions. My motherinlaw was a childrens’ specialist
I am not fully aware as to whether Ramachandra Chari was married to one Jyothi before marrying to Nagarajamani. It is true that on 10.10.1981, my mother inlaw executed a registered will in respect of properties owned by her. It is true that my motherinlaw has annexed a sketch plan to the Will. It is true that the said sketch plan shows the details of rooms, shops 51 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 etc., as detailed in the Will. I have gone through the contents of said Will and I am aware about the same. I am in possession of the original Will. It is true that the original title deeds of the property owned by my motherinlaw under the said registered
Will.
I am not aware whether my mother inlaw as to subsequent to the execution of registered Will has executed a registered gift deed in favour of her daughter Jayashree. I have gone through the contents of registered gift deed filed in the case.”
25.DW1 has also been cross examined by the counsel for D3 in which she admitted that late Dharmalingachary did not execute any document in favour of her husband in respect of the property alloted to him under
Ex.A2. DW1 also admitted Ex.B1 (a) which is the entire sketch plan. She nextly admitted that she has not filed any documents to show that late
Dharmalingachary made debts amounting to Rs. 6,00,000/ and denied a suggestion that her husband has not paid the old debts of
Dharmalingachary in a sum of Rs.4 or Rs 5 lakhs. She stated that the rentals for shop No.9 was collected by Ramachandra Chary and after his demise, Nagarajamani used to collect and for shop No.9, rent was collected by Chandra Shekar and Vijay Bharathi while Shop No.8 they (DW1) used to collect the rents. She has admitted Ex.B19 which are the two registered gift deeds executed by her husband in her favour and further admitted that in the road widening an area of 38.17 Sq.Yds was lost and the name of
Siddhartha was never mutated in municipal records in respect of the properties covered under Ex.B18 and B19 or the name of
Dharmalingachary. She further admitted about the deposit of a sum of Rs.
52 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 14,38,876/ as compensation for the acquired land by the Government to the credit of the Chief Judge, City Civil Court, Hyderabad and denied a suggestion that Jayashree is having 1/4th share in the suit schedule property and in the compensation amount for the acquired land.
26.D.W.1 has also denied a suggestion in her crossexamination that she made illegal constructions over the suit schedule property and converted room Nos. 4 and 5 into single shop. She further denied a suggestion that
Ex.B18 and B19 are not binding upon Jayashree and that she is liable to demolish the illegal constructions and liable to remove the AC sheets and shed on the 1st floor and further denied that compensation amount is to be divided among three sons and Smt. Jayashree.
a)DW1 is also cross examined by the counsel for the defendant No.7 in which she admitted that herself and Nagarajamani entered into the court hall together and have a cordial relation with each other and that there is an understanding between herself and Nagarajamani with regard to the suit schedule property. Dw1 stated that, she doesn’t know whether the 7th defendant in the suit is the daughter of B. Ramachandra Chary through his first wife. She further stated that B. Ramachandra Chary is her 2nd brother inlaw and the 1st defendant is her husband. She also admitted Ex.B20 which is the paper publication dated 07.02.1989, but added that they have not given any such paper publication. DW1 admitted about Ex.B21 which are 11 photographs showing B. Ramachanadra Chary, Datrishree who is the defendant No.7 and daughter of B. Ramachandra Chary, Jyothi,
Jayashree and fatherinlaw and also her husband Siddhartha. She nextly 53 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 admitted Ex.B22 which is the birth certificate dated 27.10.2007 issued by the GHMC containing the house No. 11213, Viveknagar, Chikkadpally,
Hyderabad, which is the suit schedule property and stated that the names and particulars mentioned therein are true and correct. She further stated that she doesn’t know whether the 7th defendant is entitled for half share in the property alloted to Ramachandra Chary. DW1 denied a suggestion that she is deposing false in collusion with Nagarajamani to avoid the share of the 7th defendant in the property of Ramachandra Chary.
27.DW2 (wrongly mentioned as DW3 due to inadvertance), is the plaintiff in O.S.No. 1854/2007. In her chief evidence affidavit she has testified to the contents of the plaint averments in the suit filed by her.
She has marked Ex.B23 which is the certified copy of the sale deed dated 25.05.1953 in the name of her mother B. Saraswathi, Ex.B24 which is the certified copy of the registered Will dated 10.10.1981 (already marked as
Ex.A2 and A3), Ex.B25 and B26 are the death certificates of her parents namely B. Saraswathi and B. Dharmalaingachary and Ex.B27 is the market value certificate of the suit schedule property.
28.In her cross examination on behalf of the plaintiff in O.S.No.
2152/2006, DW2 described as DW3 (plaintiff in O.S.No.1854/2007) has stated that her marriage took place in the year, 1966 and performed by her parents at Hyderabad, her mother passed away in the year, 1983 and her father passed away in the year, 1987. She denied a suggestion that she is not entitled for any share in the suit schedule property and that the suit filed by her in O.S.No.1854/2007 is not maintainable.
54 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
29.In her cross examination, DW1 on behalf of the 7th defendant has admitted that the 7th defendant is the daughter of B. Ramachandra Chary through his first wife and after the death of the mother of the defendant
No.7, B. Ramachandra Chary married Nagarajamani without informing them and that the 7th defendant is entitled for half share in the share of late B. Ramachandra Chary in respect of the suit schedule property. Dw2 (DW3) has further stated that B. Nagarajamani played fraud in collusion with the 1st defendant to avoid the share of defendant No.7.
30.DW2 in her cross examination on behalf of the defendant Nos. 1, 11 to 14 has stated that at the time of her marriage, she was 14 years and her brothers were quite young and that her husband was working as Associate
Lecturer at Madras at the time of her marriage. She further stated that the property which was given to her was 600 Sq.Yds of plot at Dondaparthi area of Visakhapatnam. She further stated that in her cross examination as under: “According to Will, I got properties i.e., 1 Shop, land at
Alwal admeasuring 800 Sq.Yds and my mother gave me terrace rights over the residential portion by way of gift.
At the time of filing of the suit, the violet, colour portion and red colour portion in Ex.B1 is the suit schedule property.
It is true that after the death of our father, my brothers, occupied the shop Nos. 8, 9 and 10 illegally. Witness adds that the rear side of the shops were also occupied by defendants 1 and 3. It is not true to suggest that when our father was on death bed he orally informed to my all brothers i.e., defendants 12, 2 and Ramachandra Chari to occupy the shop Nos. 8, 9 and 10.
55 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
It is not true to suggest that the space adjacent to room
Nos. 4 and 5 towards East and West of the suit house should go to Siddartha specifically and that the right of usage of well adjacent to the shops will be that of all the three sons and husband. Witness adds that my mother gave me all the rights in respect of the passage in the property owned by her and the same is clearly described in the registered gift deed.
It is true that the above mentioned my statement is not reflected in the registered Will. My mother has not executed any codicil to the registered Will during her life time. It is not true to suggest that the registered gift deed executed by my mother is not binding on Siddartha and Nagamani.
It is true that financially and educationally my three brothers were lesser than me. It is not true to suggest that keeping in view of my financial and educational capability my father gave rights in the suit schedule property to defendants1, 2 and Ramachandra Chari. It is not true to suggest that the defendant Nos. 1, 2 and Ramachandra Chari offered to sell the suit schedule property to me. Siddartha and Nagamani only have offered to sell their share to me after two years of death of my father. It is not true to suggest that the rents mentioned by me in the plaint are exaggerated and in reality there is no such rents in the locality. It is true that during the life time of my mother she had given the shops on rent for Rs. 100/ and odd.
It is not true to suggest that Siddartha i.e., defendant No.1 has taken so much of risk to got it vacated the tenants by spending huge amounts. It is not true to suggest that after the road widening programme the left over land is of no use as the extent has reduced drastically. It is not true to suggest that whatever the land is remained after road widening was away in setback.” 56 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
31.Having regard to the material on record including the oral and documentary evidence as discussed above, the undisputed facts that would emerge from the record are that originally B. Saraswathi who is the mother of the plaintiffs in O.S.No.2152/2006 and O.S.No.1854/2007 was the absoluteowner of the suit schedule property covered under both the suits and other properties which are bequeathed by her by way of a Will under the original of Ex.A2 (also marked as Exs. A3 and B24 bearing Doc. No.
29/1981, dated 10.10.1981). It is also not disputed that Smt. Dr.B.
Saraswathi wife of Dharmalingachary has died on 15.02.1983 and Ex.B25 is her death certificate. It is also not disputed that the husband of Dr. B.
Saraswathi by name B. Dharmalingachary has died on 25.10.1987 and
Ex.B26 is his death certificate.
a)The plaintiff in O.S.No.1854/2007 has claimed that the suit schedule property has become the joint family property after the death of her father as he was given only the right of enjoyment during his life time and after his death, the said property is liable for partition among the children of Dr.
B. Saraswathi and B. Dharmalingachary but the defendants 1 and 2 are not partitioning the suit schedule property and the defendants have raised illegal constructions on the suit schedule property including the staircase and encroached the common passage and wall and therefore she has sought various reliefs in the suit.
b)It is significant to notice that the plaintiff in O.S.No. 1854/2007 (DW2) sought for a share in the suit schedule property on the basis of
Ex.A2, A3 and A4 which are the certified copies of the very same registered 57 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 will executed by her mother Dr. B. Saraswathi on 10.10.1981.
32.The plaintiff in O.S.No.2152/2006 who is one of the sons of Dr. B.
Saraswathi and B. Darmalingachary also laid his claim for partition of the suit schedule property on the basis of the said registered will deed executed by his mother whose certified copies are marked as Exs.A2, A3 and B24.
33.It is thus evident that the entire crux of the controversy involved in these two suits revolve around the recitals of the said registered Will Deed executed by Dr. B. Saraswathi dated 10.10.1981 and the relevant clauses therein are enumerated, hereunder for better appreciation of the dispute involved in these two suits. The contents of the said will read thus:
“IV. Whereas I have taken into consideration of the marriage performed and yet to be performed, the Education, previous settlements and expenditure incurred and to be incurred for my four issues, the commitments like dues and taxes I have to meet, now I consider the following arrangements are equitable and just.
V. I do hereby settle the aforesaid properties income etc., on my four children, Husband and servant maid as follows:
i). In respect of the residential building bearing Municipal
No. 11213, with 8 rooms Nos. 1 to 8 marked in the plans:
Room No.1 ( 10 x 12) should be taken by my husband
Sri B. Dharmalingachari. After his demise it should go to
B. Ramachandrachari.
Room No.2 (10 x 12) and room No.7 (10 x 10) should be taken by my third son B. Ramachandrachari.
Room No.3 (10 x 12) and Room No.8 (12 x 16) should be 58 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 taken by my second son D. Chandrasekhar, and Room No.4 (10 x 14), room No.5, (10 x 10), and room No.6 ( 10 x 8 ) should be taken by my eldest son B. Siddartha.
The staircase by the side of Room No.7 and the Bath room below it and the open space should go to B. Ramachandrachari and be used by him.
The varandah flanked by rooms 8, 4 and 6 are commonly used by the two sons B. Siddartha & Chandra Sekhar.
The stair case by the side of rooms 1 and 2 be used by
Ramachandrachari, Chandrasekhar and Dharmalingachari. The room below the stair case go to B. Ramachandrachari.
When staircase is constructed for the first floor on mulgies, the room under the stair case should be taken by B.
Ramachandrachari. The space adjacent to room Nos. 4 and 5 towards East and West of the outhouse should go to
B. Siddhartha.
The right of usage of the passages surrounding the house and the right of usage of Well adjacent to the shops will be with all the three sons and husband.
(ii) In respect of the shops mentioned; (1). Shop No.2 I now being occupied by the Bamboob merchant
Sri P. Laxmaiah, and shop No.2 now being occupied by Tailors “Sky Way Tailors” should go to my third son
B. Ramanachandrachari.
(2). Shop No.3 and shop No.4 now being occupied by
M/s. Bhavani Silk House, should go to my second son
B. Chandrasekhar.
59 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 (3). Shop No.5 occupied by P.B. Silk Palace (Gents Textiles) shop
No.6 now being occupied by Sri Vithal and brothers (Satyanarayuana Vsthralayam) should go to my first son
Siddhartha.
(4). Shop No.7 now being occupied by Sri Prakash and Srinivas
Partners (Parkash Textiles) should go to my daughter Smt. K.
Jayasree.
As per the arrangements, aforesaid properties shall be enjoyed by the heirs absolutely with full rights of ownership.
VI. The three small shops numbered No.8 (occupied by Orient
Watch Repairing Centre) No.9 (occupied by Orient tin Steel
Repairing Centre) and No.10 (occupied by Prabhakar Ghee
Stores), and the Outhouse behind these shops marked B, and the open space adjacent to it and behind the small shops, earmarked for two big mulgies already sanctioned, shall be taken by my husband Sri B. Dharmalingachari. He will be the rightful owner for the usufruct (rent etc.,) income from the constructions on the said area for his life. If two proposed and sanctioned mulgies are constructed thereon, the usufruct from the two mulgies shall be enjoyed by him till the and of his life.
VII. From income out of the property mentioned in (VI) Rs. 75/ per month be given to Smt. T. Rajya Lakshmi, servant maid, as pension till end of her life, if she serves faithfully me and my husband till our demise, as consideration for the faithful services she would be rendering.
VIII. The fourth small mulgi No.11 now being occupied unauthorizedly by Sandhya Dhobis shall be demolished as per the 60 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 requirements of the Municipal Corporation of Hyderabad and the open space shall be used by B. Ramachandrachari.
34.Thus, from the aforesaid recitals of the will deed dated 10.10.1981, the executor Dr. B. Saraswathi has never permitted her husband B.
Darmalingachary to use the passage surrounding the house in her bequeath relating to shop Nos. 8, 9 and 10 and therefore after the death of
Dharmalingachary the said property is available for partition.
a) The 1st defendant in O.S.No. 2152/2006 has claimed that his father
B. Dharmalingachary out of love and affection has orally gifted the suit schedule property to him and he (first defendant) has paid the old debts of Rs. 6,00,000/ of late B. Darmalingachary and also paid another sum of
Rs. 4,00,000/ towards maintenance and development of the suit schedule property. However, for the reasons best known to him, the 1st defendant did not enter into the witness box to substantiate his claim in this regard and DW1 who is the wife of the 1st defendant in her cross examination has admitted that they have not filed any documentary proof to show that her husband has paid the debts of Rs. 6,00,000/ of Dharmalingachary and spent Rs. 4,00,000/ towards maintenance and development of the property. Moreover, there is also no satisfactory proof adduced by the 1st defendant to demonstrate and establish the oral gift of the suit schedule property in O.S.No.2152/2006 in his favour by Dharmalingachary, in the light of PW1 and PW2 categorically denying this aspect of the matter.
Therefore, from a careful perusal of the entire material on record including the recitals of Ex.A1, A2, A3 and B24 it is evident that the suit schedule property (in O.S.No.2152/2006) after the death of Dharmalingachary 61 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 remained without any bequeath as there is no further reference made by
Dr.B. Saraswathi as to the mode of disposal of the said property after the death of her husband B. Dharmalingachary. As a sequel thereof, the said property for all purposes devolved upon the children of Dr. B. Saraswathi and B. Darmalingachary who are their legal heirs, subject to their entitlement in accordance with law.
35.At this stage, the crucial point that has to be adjudicated is whether the plaintiff in O.S.No.1854/2007 is entitled for partition of the suit schedule property and the other reliefs claimed by her in the said suit. It is apparent from the admissions of the plaintiff in O.S.No.1854/2007 as DW2 in her cross examination that her marriage took place in the year, 1966 and her mother passed away in the year, 1983 and her father passed away in the year, 1987.
a)The right of a Hindu daughter to claim share in the property of her parents prior to the Central Amendment Act 39 of 2005 brought in the year 2005 to the Hindu Succession Act, was in accordance with Section 29A of the Hindu Succession (A.P. Amendment Act 13 of 1986) as held by the
Hon’ble High Court of Judicature at Hyderabad in a decision reported in
DAKA AUDEMMA Vs. INAGANTI VENKATESWARA REDDY AND OTHERS, {2017 (1) ALT 164}, in which it is held that when the marriage of a female took place prior to the commencement of the Hindu Succession A.P.
Amendment Act, which came into force on 05.09.1985, she does not have any right to claim share in the said property and the Hindu Succession
Amendment Act No. 39 of 2005 which is the Central Amendment does 62 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 apply to the case of the plaintiff as it cannot be given retrospect effect to a female to claim right in the property as coparcener in view of the decision of the Hon’ble Supreme Court reported in PRAKASH AND OTHERS VS.
PHULVATI AND OTHERS {2015 (6) ALT 34 SC}. The relevant observations of the Hon’ble High Court in the decision of DAKA AUDEMMA are in para Nos.25 and 26 which are extracted as under:
Para 25:
One of the requirements to claim share by a daughter of
Hindu, who became coparcener after passing of the Act, is that her marriage must have taken place after the commencement of amended Hindu Succession Act. In the present case, the marriage of the plaintiff has taken place prior to the commencement of the Hindu Succession (Andhra Pradesh)
Amendment) Act 13 of 1986. Hence, she is not entitled to claim right in the property as a coparcener. Both the trial court and the Appellate Court recorded a concurrent finding that the marriage of the plaintiff had taken place much prior to the date fixed under SubSection IV of Section 29A of the Act 13 of 1986. Therefore, the finding recorded by the trial court, affirmed by the appellate court cannot be disturbed while exercising power under Section 100 of CPC as it is limited to substantial question of law. If the date of marriage of the plaintiff as held by both the trial court and the appellate court is accepted, she is not entitled to claim benefit under Section 29A of the amended Act 13 of 1986, but taking advantage of subsequent Central Amendment to Hindu Succession Act i.e.,
Act 39 of 2005, she is contended that she is entitled to a share in the coparcenary property.
Para 26:
By the date of devolution of property on 1 st defendant, the plaintiff was not a coparcener. But by virtue of amended 63 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
Act 13 of 1986 she became entitled to right subject to satisfying the conditions laid down in Section 29A of the Act. To claim share in the coparcenary property, the nature of property held by 1 st defendant is in dispute. At this stage, it is not relevant to decide the nature of property since it is covered by 2 nd substantial question of law.”
36.The Hon’ble Supreme Court in the decision reported in PRAKASH
AND OTHERS VS. PHULVATHI’S case (cited supra) in para No.23 has categorically held that the Hindu Succession Amendment Act No.39/2005 (brought to the Hindu Succession Act, 1956) is only prospective in operation and the rights under the said amendment are applicable to the living daughter of a living coparcener as on 09.09.2005 irrespective when such daughters are born. The observations in para Nos. 22 and 23 of the said judgment of the Hon’ble Supreme Court in this regard, are extracted as under:
Para 22:
In this background, we find that the proviso to Section 6 (1) and Subsection (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20 th December, 2004 on which ate the Bill was introduced.
Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20 th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced.
Main provision of the Amendment in Section 6 (1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by 64 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the appellants are not intended to be done away with for period prior to 20 th December, 2004. In no case statutory notional partition even after 20 th December, 2004 could be covered by the explanation or the proviso in question.
Para 23:
Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9 th
September, 2005 irrespective of when such daughters are born.
Disposition or alienation including partitions which may have taken place before 20 th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the explanation.
37.Thus, in view of the legal position enumerated above, it is necessary to refer to the case of the plaintiff in O.S.No. 1854/2007 on the touchstone of the observations made in the aforesaid decision. The factual matrix in this case would depict that the plaintiff in this suit claimed that she was in possession of the property which was gifted to her by her mother through registered gift deed on 15.05.1982 and also the shop No.7 which is gifted to her by her mother under the will under Ex.A2 and A3 and B24. She further claimed that the defendants 1 and 2 have demolished shop No.8 and using the said shop area as passage for the rear side portion by the defendant No.8. She has also claimed that the execution of the gift settlement deed bearing Doc. No.2395/1999, dated 04.10.1999 delivering northern portion of the house property by B. Siddhartha in favour of his wife (DW1) for 102 Sq.Yds is not proper as he has no such right. Further, the plaintiff in O.S.No.1854/2007 has claimed that the gift deed bearing
Doc. No. 2862/2002 dated 19.10.2002 executed by the 1st defendant 65 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 gifting the northern portion of house property covered by Municipal No.
101213 partitioning 179 Sq.Yds is not his property as he has no exclusive right over the same since the said property belongs to the plaintiff, defendants 1 and 2 and the legal heirs of B. Ramachandra Chary who are defendants 3 to 7. The plaintiff in this suit also claimed that another gift document No.550/1982, dated 15.05.1982 executed by the 1st defendant on the portion of terrace rights is not valid and further sought the mandatory injunction for directing the defendant No.11 to demolish the illegal constructions and for depositing of rents by the defendants 8 to 10 and 12 to 14.
38.However, as seen from the admissions of the plaintiff in O.S.No.
1854/2007 as D.W.2 and in the light of the legal position as enumerated above, the plaintiff in the suit whose marriage has been performed in the year, 1966 and whose father passed away on 25.10.1987 and whose mother passed away on 15.02.1983, cannot claim any partition of the suit schedule property as neither the amended provisions of Hindu Succession
A.P. Amendment Act 13/1986 or the amended provisions of the Hindu
Succession Act No.39/2005 are applicable to her case so as to claim any share in the suit schedule property, after the death of her father and mother respectively, in view of the ratio laid down in PRAKASH Vs.
PHULVATI’s case. Therefore, in the absence of the plaintiff placing any material on record to show her entitlement of a share in the suit schedule property, this court holds that the plaintiff in O.S.No. 1854/2007 is not entitled for the relief claimed in the suit.
39.The 7th defendant in O.S.No.2152/2006 has asserted that she is the 66 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 daughter of B. Ramachandra Chary and she is also entitled for 1/8th share in the suit schedule property. In the cross examination of PW1 and DW2, they have categorically admitted that the 7th defendant is the daughter of
Ramachandra Chary and B. Jyothi. PW1 is none other than the own younger sister of the 2nd defendant B. Nagarajamani and she has categorically admitted in her cross examination that the 7th defendant is the daughter of B. Ramachandra Chary and B. Jyothi and after the death of
B. Jyoti, B.Ramachandra Chary has married the 2nd defendant. There is no contrary material available on record worth the salt to contradict or dispute this aspect of the matter. Therefore, in the absence of any rebuttal evidence to the contrary on this aspect, the 7th defendant is also entitled for a share along with the second defendant and her children in the suit schedule property in O.S.No. 2152/2006 in the share of her father late B.
Ramachandra Chary.
40.It is admitted by PW1 in O.S.No.2152/2006 who is the wife of the plaintiff in the said suit that the 1st defendant has no exclusive right to execute the gift deeds in favour of his wife Nagamani (DW1) in respect of the suit schedule property and the common passage as the said property is owned by the plaintiff in O.S.No. 2152/2006, and legal heirs of B.
Ramachandra Chary and Siddhartha.
41.The case of the plaintiff in O.S.No.2152/2006 is that the suit schedule property became 42.2 Sq.Yds after acquisition of a portion by the
GHMC which is also admitted by Dws1 and 2. However, as the plaintiff in the suit has proved that the suit schedule property is liable for partition as it became the joint family property after the death of his father B.
67 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
Darmalingachary, the said property is liable to be partitioned into three equal shares out of which the plaintiff is entitled for 1/3rd share and the 1st defendant is entitled for 1/3rd share and the defendants 2 to 5 and 7 who are the legal heirs of B. Ramachandra Chary are equally entitled for the 1/3rd share of late B. Ramachandra Chary These issues are answered accordingly.
42.Having regard to the aforesaid discussion and in the light of the legal position as enumerated above, this court holds that the plaintiff in O.S.No.
1854/2007 is not entitled for the relief claimed in the suit and the said suit is liable to be dismissed.
43.Issue No.3 in O.S.No.2152 of 2006 :In the result, O.S.No.
2152/2006 is decreed with costs by passing a preliminary decree by declaring that the suit schedule property is liable for partition into three (3) equal shares, and the plaintiff is entitled for one such share, the defendant No.1 is entitled for one such share and the defendants 2 to 5 and 7 are also entitled for one such share together equally being the legal heirs of late B. Ramachandra Chary. The 6th defendant is not entitled for any share in the suit schedule property.
43. Issue No.4 in O.S.No.1854 of 2007: In the result, O.S.No.
1854/2007 is dismissed with costs.
Dictated to Personal Assistant, transcribed and typed by him, corrected
and pronounced by me in the open Court on this the 11 th day of February, 2019.
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
68 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:FOR DEFENDANTS:
PW1: B. Vijay BharthiDW1: B. Nagamani DW2: K. Jayashree
FOR PLAINTIFFS:
Ex.A1: Market Value Certificate of the suit schedule property
Ex.A2 : Certified copy of the Will bearing Doc. No.29/1981
Ex.A3 Registered Will Deed bearing Doc. No.29/1981, dated 10.10.1981
FOR DEFENDANTS:
Ex.B1: Plan showing the suit schedule property
EX.B1(a). Plan showing the portion affected in road widening.
Ex.B2: Photograph showing the old building of suit schedule property
Ex.B3 and Ex.B4 are the photographs showing the demolition work in the suit schedule property undertaken by Smt. P. Nagamani
Ex.B5 to Ex.B16 are the photographs are showing the newly constructed building over suit schedule property with the shops leased out to new tenants i.e., defendants 12 to 14.
Ex.B17: CD pertaining to the photographs i.e., Exs.B2 to B16.
Ex.B18: Xerox copy of the registered Gift Settlement Deed
dated 19.10.2002 bearing Doc. No.2862/2002
Ex.B19: True copy of the registered Gift Settlement Deed
dated 04.10.1999 bearing Doc. No.2395/1999
Ex.B20: Paper publication dated 07.02.1989
Ex.B21: Photographs (11 in Nos.)
Ex.B22: Birth certificate dated 27.10.2007 issued by the GHMC
Ex.B23: Certified copy of the Sale Deed dated 25.05.1953
Ex.B24: Certified copy of the Registered Will dated 10.10.1981
Ex.B25: Death certificate of B. Saraswathi, dated 31.10.1987
Ex.B26: Death Certificate of B. Dharmalingachari, dated 28.06.2007 69 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
Ex.B27: Market Value Certificate, dated 28.06.2007 issued by SubRegistrar, Chikkadpally
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
IN THE COURT OF THE XVII ADDL. SENIOR CIVIL JUDGE:
CITY CIVIL COURT: HYDERABAD
Present : Dr. S. Srinivasa Reddy
I Senior Civil Judge
FAC XVII Addl. Senior Civil Judge
Dated this the 11 th day of February, 2019
O.S.Nos. 2152 of 2006 and 1854 of 2007
O.S.No.2152/2006:
BETWEEN:
B. Chandrasekhar Rep. by GPA Holder Smt. B. Vijayabharathi
...Plaintiff
A n d
1. B. Siddartha
2. B.Nagarajamani
3. Raja vinay Chandra
4. Miss Srividya
5. Anand Sai
6. Smt. K. Jayashree
7. Miss. B. Dhathri Shree (Defendant Nos. 3 to 5 added as per Orders in I.A.No.1004/2007, dated 18.02.2008.
Defendant No.6 is added as per Orders in I.A.No.736/2008, dated 10.09.2008.
Defendant No.7 is added as per Orders in I.A.No.189/2014, dated 14.08.2014).
...Defendants
O.S.No.1854/2007
BETWEEN:
K. Jayashree
...Plaintiff
A n d
1. B. Siddartha
2. B. Chandrasekhar
3. B. Nagarajamani 2 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
4. Miss. Dhatrishree
5. Rajavinay Chandra
6. Miss Srividya
7. Anand Sai
8. Govinda Das
9. Himmath Hussain
10. Prabhakar
11. Bennabhaktula Nagamani
12. Laxmandas
13. M. Nagaraju
14. B. Laxman Rao
...Defendants
These suits coming before me for final disposal, in presence of
Sri Laxmi Narayana, Advocate for the plaintiff and of Sri N. Ravi Kumar,
Advocate for Defendant No.1 in O.SNo.2152/2006 and Advocate for
Defendant Nos. 1, 11 to 14 in O.S.No. 1854/2007, and of Sri Madhava
Rao, Advocate for Defendant Nos. 2 to 5 in O.S.No.2152/2006 and
Advocate for Defendant Nos. 3, 5 to 7 in O.S.No.1854/2007 and of
Sri Balchand, Advocate for Defendant No.6 in O.S.No.2152/2006 and
Advocate for Plaintiff in O.S.No.1854/2007 and of Sri M.V. Prasad Sanaka,
Advocate for Defendant No.7 in O.S.No.2152/2006 and Advocate for
Defendant No.4 in O.S.No.1854/2007 and Defendant Nos. 8 to 10 in
O.S.No.1854/2007 are set exparte, and the matter having stood over for
consideration till this day, this Court delivered the following:
C O M M O N J U D G M E N T
These two suits are clubbed as per orders dated 06.10.2009 in
I.A.No. 711/2009 for joint trial and it is ordered that the evidence recorded in O.S.No.2152/2006 shall be treated as evidence in O.S.No.1854/2007.
Hence, these two suits are being disposed of by this common judgment.
2.O.S.No. 2152/2006 is filed by the plaintiff seeking relief of partition and separate possession of the suit schedule property.
3.O.S.No.1854/2007 is filed by the plaintiff seeking partition and 3 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 separate possession of the suit schedule properties, for depositing of rent amount and also for mandatory injunction.
4.For adjudicating the issues involved in these two suits in proper perspective, the pleadings of respective parties in both these suits are enumerated as under:
Plaint Pleadings in O.S.No. 2152/2006:
This suit is filed by the sole plaintiff seeking passing of a preliminary decree for partition and separate possession of the suit schedule property which is open land admeasuring 44.2 Sq.Yds (amended as per orders in
I.A.No. 880/2013, dated 22.11.2013) consisting of open space and out house situated at House bearing No. 11213, Viveknagar, Chikkadpalli,
Hyderabad and allot one such 1/3rd share to the plaintiff and put him in separate possession.
2.The averments of the amended plaint in this suit which is filed on 27.08.2014 are traced out as under:
The plaintiff’s mother late Dr. B. Saraswathi W/o. late
B. Dharmalingachary was the absolute owner and possessor of the property admeasuring 600 Sq.Yds in house bearing No.11213, Viveknagar,
Chikkadpally, Hyderabad consisting seven (7) shops and eight (8) house rooms and an open space. Late B.Saraswathi and late B. Dharmalingachary blessed with three sons and one daughter. The plaintiff is the second son and defendant No.1 is first son and defendant No.2 is daughterinlaw and wife of late B. Ramachandra Chary who died in February, 2006, who was the third son of Smt. B. Saraswathi. B. Dharmalingachary died 23 years 4 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 back. Dr. B. Saraswathi during her life period executed a registered will bearing Doc. No. 29/1981 by dividing the constructed property to her three sons and daughter but left some open space admeasuring 80 Sq.Yds undividing it, which is kept as common property to all three sons which is the suit schedule property. (Para No.B1 added as per orders in I.A.No.
880/2013, dated 22.11.2013). The GHMC of Hyderabad has taken up road widening from Narayanaguda Junction to Musheerabad Junction for Metro
Rail project, in this regard an area measuring 38.17 Sq.Yds of the suit property was acquired by the Special Deputy Collector, Land Acquisition,
GHMC, Hyderabad and a compensation amount of Rs. 14,38,876/ was deposited to the credit of the account of Chief Judge, City Civil Court,
Hyderabad. Since there is a dispute in relation to the distribution of the compensation amount, the above said amount is lying to the account of
Chief Judge, City Civil Court, Hyderabad. Plaintiff is taking necessary steps to file his claim statement before the Hon’ble III Addl. Chief Judge Court, and seek his share of the compensation amount in O.P.No.976/2012. At the time of the suit, the suit property was tentatively measured at 80
Sq.Yds but in fact the suit property measured 82.41 Sq.Yds. In view of the acquisition of an area of 38.17 Sq.Yds out of the suit property, the property now available for partition measures 44.24 Sq.Yds. The plaintiff is having 1/3rd share in the suit property now measuring 44.24 Sq.Yds and defendants 1 and 2 to 5 are having 1/3rd share each and Smt. K. Jayasri who is defendant No.6 got impleaded as defendant and claiming 1/4th share in suit schedule property. The seven (7) shops and (8) rooms are divided between three sons and a daughter as shop No. 1 (10 x 12), shop
No. 2 (10 x 12) and room No. 1 (10 x 12), room No. 2 (10 x 10) and room 5 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 no. 7 (10x10) was given to third son Ramachandra Chary and the second son who is the plaintiff was given shop No. 384 (10 x 12) and room No.
3(10 x 12) room No.8 (10 x 14) and shop 5 and 6 (10 x 4) and room No.4 (10 x 4) room No. 5 (10 x 10) and room No. 6 (10 x 8), was given to first son B. Siddartha, Shop No.7 was given to daughter Smt. K. Jayasree. The stair case and bath room given to B. Ramachandra Chari. The present suit schedule property is out house and open space consisting of 80 Sq.Yds which comes back on Shop No. 8, 9 and 10 as per Will of Smt. Late Dr. B.
Saraswathi the suit schedule property is under the custody of late B.
Dharmalingachary till his death, after his demise the said property was common property of the plaintiff and defendants. Defendants 1 and 2 are commonly using the said suit schedule property to common usage. The said suit schedule property was common and joint family property which was not divided between the plaintiff and defendants. The plaintiff approached the defendant No.1 in the month of January, 2006 and requested to partition the suit schedule property but the defendant No.1 under guise of possession is trying to alienate the suit schedule property to third parties. Plaintiff at last conducted a panchayath in the month of
September, 2006 by calling family elders and demanded to partition the suit schedule property, but the defendant denied partition of the suit schedule property and trying to alienate the suit schedule property to third parties. There is no option left to the plaintiff except by this suit. The plaintiff is entitled for 1/3rd share and the defendants 1 and 2 are entitled for 1/3rd share each. Hence the suit.
3.The 1st defendant has filed a written statement on 12.04.2007 6 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 opposing the relief claimed in the suit with the following averments:
The property which is shown as admeasuring 600 Sq.Yds but the actual measuring is 672 Sq.Yds as per the Will Doc. No.29/1981, dated 10.10.1981 executed at the SRO Chikkdpally, Hyderabad – 500020 and the 2nd defendant is not a wife of late B. Ramachandra Chari who died in the month of February, 2006 who was the third son of Dr. B. Saraswathi and
B. Dharmalinga Chari who died 23 years back and the second defendant B.
Nagarajmani is not legally wedded wife, and she has no right to represent on behalf B. Ramachandra Chari who died recently. The first wife was died on the 06.02.1989 and her only daughter age about 23 years, major and handicapped and not yet married whose name is Miss Datrisri, at present staying at Visakhapatnam. The present suit schedule property is outhouse and open space consisting of 80 sq.Yds which comes back of shop
No.9 and 10 as per the Will of late Dr.Saraswathi, the suit schedule property was under the custody of late Dharmalinga Chari, was transferred and declared to be enjoyed by his eldest son Mr. B. Siddhartha who is the 1st defendant in the present case. Since then suit schedule property including the shop Nos.9 and 10 are under the custody and possession of the defendant No.1. Mr. B. Dharmalingachari during his life time with love and affection and consideration declared the suit schedule property in favour of the defendant No.1 before the plaintiff and the defendant No.1 and her daughter Smt. Jaishree and the D1 is as an absolute owner and possessor of the suit schedule property without any objection or hindrance, so the defendant No.1 has paid the old debts worth about Rs. 6,00,000/ which belongs to late Sri B. Dharmalinga Chary and also paid another Rs.
7 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 4,00,000/ towards maintenance and development of the suit schedule property. As an elder son of B. Dharmalinga Chary (late), the responsibility to his eldest son to pay the old debts for his mental peace and B.P. Control, so the late father considered all these moral responsibility and sacrifices and respect on the elders considered as a good son and gifted the schedule property before the other legal heirs who are No.1 B. Chandrasekhar, 2). B.
Ramachandra Chary and 3). Smt. K. Jaishree in favour of B. Siddhartha who is the eldest son of B. Dharmalinga Chary/defendant No.1 in the matter to enjoy the property without any objections from any other legal heirs. Mr. B. Siddhartha is a Govt. Employee and has decided to transfer the suit schedule property in the name of his wife Smt. B. Nagamani on 19th Day of October, 2002. From that date the wife of defendant No.1 is looking the said schedule property by all means as an absolute owner and possessor. The said schedule property transferred in the municipal record w.e.f 05.07.2000 under Section 208 of the HMC Act of 1955 on the strength of the document produced by her. The change of name is registered as B.B. Nagamani bearing H.No.11213, at Chikkadpally,
Hyderabad–500020 under certificate No. 728/1187/TC3/MCH/2000 dated 06.07.2000. Since then and now she is paying MCH taxes regularly without delay and default as on today. The plaintiff Mr. B. Chandra sekhar as per the Will transferred his entire property in the name of his wife Smt.
Bharathi Devi before the elders as he is suffering with mental agony, therefore this plaintiff has no right to file partition suit against the defendant No.1 and this suit is liable to be dismissed with costs.
4.The 1st defendant has filed his amended written statement on 8 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 29.12.2008 reiterating the averments of his written statement filed on 12.04.2007 and contended that the 3rd defendant has no claim against the 2nd defendant as she was partitioned by the joint Hindu Family about 40 years back.
5.The 2nd defendant has filed her written statement originally on 08.02.2007 seeking for passing of a preliminary decree by allotting 1/3rd share to the 2nd defendant also.
a)The 2nd defendant has filed additional written statement on 18.12.2008 to allot any share to the 3rd defendant, with the following averments.
The suit property of 80 Sq.Yds was originally bequeathed to the father of the plaintiff by the mother of the plaintiff through a Registered
Will, dated 10.10.1981. The father and mother of the plaintiff expired.
The father of the plaintiff died intestate. The suit property equally goes to three sons i.e., plaintiff, D1 and D2, the daughter D3 K. Jayashree has no right in the suit property. The D3 only to harass and grab the property impleaded herself in the proceedings. D1 wrongly executed gift deed in favour of his wife without valid rights. The document executed without ownership has no value in the eye of law. The alleged gift deed is a self made document and not valid and not binding on the plaintiff and D2.
The suit property has to be divided into 3 equal shares between the plaintiff, D1 and D2. The daughter D3 has no right of any nature in the suit property, the defendant already filed O.S.No.1854/2007 on the file of
V Senior Civil Judge for partition of the suit property which is pending 9 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
before this Court. The second defendant therefore, prayed not to allot any
share to the defendant No.3 in the suit property as D3 is not entitled for a share in the property.
6.The 3rd defendant has filed a separate written statement contending that the plaintiff is entitled to 1/4th share and the other 3/4th share is to be divided amongst this defendant, defendants 1 and 2 with her children, with the following averments:
The plaintiff and defendant No.1 are natural brothers. Apart from plaintiff and defendant No.1, this defendant has another brother by name
B. Ramachandra Chari who died on 07.02.2006. B. Ramachandra Chari through his first wife Smt. Jyothi had one daughter by name Datrisri. After the death of Smt. Jyothi, late B. Ramachandra Chari married defendant
No.2 and through her Raja vinaya Chandra, Sri Vidya, Anand Sai were born. Two sons and two daughter’s of late B. Ramachandra Chari are not made parties to the suit having succeeded to the property left by their father. This defendant is elder daughter of B. Dharmalingachari and B.
Saraswathi. The plaintiff, defendant No.1 and late B. Ramachandra Chari are her younger brothers. This defendant’s mother was absolute owner and possessor of property bearing municipal No.11213, measuring 672
Sq.yds situated at Chikkadpally, Hyderabad having purchased the same under the registered sale deed bearing Doc. No.750/1953 dated 15.05.1953 and the said sale deed was registered in the office of the
District Registrar, Hyderabad. There are mulgies facing the south and the eastern side of the above said property and from southwestern side of the said property, there is an open area which leads to the residential portion 10 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 which is located on the northern side of the above said property. During the life time of her mother B.Saraswathi, she has executed a registered will bearing Doc. No.29/1981 dated 10th October, 1981 registered in the office of the SubRegistrar, Chikkadpally, Hyderabad bequeathing her properties in favour of her husband namely Dharmalingachari and her four children i.e., plaintiff, defendant No.1 husband of defendant No.2 and defendant
No.3 along with the said registered will, a sketch plan was also enclosed giving details of the allotments made therein. Allegation of the plaintiff that his mother left 80 Sq.yds of open space undivided which is to be used as a common property by all the three sons is not correct and denied. In fact, the said open space is to be enjoyed by the plaintiff, defendant No.1, defendant No.2 and other heirs of late B. Ramachandra Chari and this defendant. The plaintiff has failed to give the details of the location of the suit schedule property. The measurement of the suit schedule property is also not correct. Apart from B. Nagarajamani (defendant No.2) and B. Raja
Vinaya Chandra, B. Ramachandra Chari left Datrisri, Sri Vidya and Ananda
Sai as his legal heirs. This defendant’s mother has bequeathed room no.1 measuring 10 x 13 to Dharmalinga Chari. It was also stated in the will that after his demise the said room shall go to B. Ramachandra Chari. Likewise, room No.2 measuring 10 x 12 and room No.7 measuring 10 x 10 was given to B. Ramachandra Chari. That room No.3 measuring 10 x 12 and room
No.8 measuring 10 x 16 was bequeathed to the plaintiff. Likewise, room
No.4 measuring 10 x 14 and room No.5 measuring 10 x 10 and room No.6 measuring 10 x 8 was bequeathed to defendant No.1. This defendant’s mother also bequeathed shop Nos.1 and 2 to late Ramachandra Chari,
Shop Nos.3 and 4 to the plaintiff and shop Nos.5 and 6 to defendant No.1 11 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and shop No.7 to this defendant. Likewise, B. Saraswathi bequeathed three small shops bearing Nos.8 to 10 and out house behind those shops along with open space measuring 75.8 Sq.Yds in favour of B. Dharmalinga
Chari. There is a stair case by the side of room No.7 and another stair case by the side of room No.2. B. Saraswathi during her life time has executed a registered gift deed in favour of this defendant in respect of open terrace measuring 175 Sq.Yds covered by portion of premises bearing Municipal
No. 11213, situated at Chikkadpally, Hyderabad. Under the said gift deed, this defendant has been given right and liberty to use the stair case in existence to reach the terrace of the property. B. Saraswathi died on 15.02.1983 and on her death, the bequests made by her in her registered
Will came in force. This defendant’s father B. Dharmalinga Chari was enjoying the property bequeathed to him under the said Will. This defendant’s father was given the right to enjoy the property for the usufruct/income only. This defendant’s father died on 25.09.1987 and since her mother did not make any provision for succession of the property which Dharmalinga Chari was enjoying and since the plaintiff, defendant
No.1 and others have denied share of defendant No.3 in the above said property, defendant No.3 was constrained to file the suit for partition and separate possession in O.S.No.1854/2007 on the file of the V Senior Civil
Judge, City Civil Court, Hyderabad. The allegation of the plaintiff that the
measurement of the property which is coming at the back of shop Nos.8, 9 and 10 i.e., out house and open is 80 Sq.Yds is incorrect. After the death of Dharmalinga Chari the property which he was enjoying during his life time is to be shared and divided which he was enjoying during his life time is to be shared and divided amongst the plaintiff, defendant No.1, 12 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant No.3 and defendant No.2 along with her children. Since the suit schedule property herein is part of the suit schedule property in O.S.No.
1854/2007, this defendant has filed impleading petition I.A.No.736/2008 in O.S.No.2152/2006 on the file of the V Senior Civil Judge City Civil
Court, Hyderabad to implead her in the said suit as the parties therein without making this defendant as party in the said suit wanted to knock away the property among themselves malafidely. The said implead petition was allowed on 10.09.2008 and by virtue of the orders passed in the said petition this defendant is added as party defendant No.3 in the suit. This defendant for want of knowledge deny that a panchayat was conducted in the month of September, 2006 by calling family elders and a demand for partition of the family property was made but defendant No.1 denied to partition the suit property. The plaintiff is not entitled to seek 1/3rd share so also defendants 1 and 2 are not entitled for 1/3 share each in the suit schedule property. Infact, the suit schedule property is succeeded by this defendant, the plaintiff, defendant No.1, defendant No.2 and her children. This defendant is entitled to 1/4th share in the suit property so also, the plaintiff and defendant No.1 and defendant No.2 along with her children are entitled to 1/4th share. The plaintiff is entitled to 1/4th share and the other 3/4th share is to be divided amongst this defendant, defendant No.1 and defendant No.2 with her children.
7.The 7th defendant has filed a written statement seeking for passing of preliminary decree in favour of the plaintiff for 1/3rd share in the suit schedule property and for 1/8th share to her as the legal heir of late B.
Ramachandra Chary with the following averments: 13 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
The defendant No.7 is entitled to 1/8th share of the suit schedule property as a legal heir of the late B. Ramachandra Chari. Late B.
Ramachandari first married B. Jyothi and through that marriage B.
Dhatrisri i.e., defendant No.7 was born. After the death of her mother B.
Jyothi, her father remarried defendant No.2 and from his second marriage defendants 3 to 5 were born. At the cost of repetition, this defendant submits that defendant No.2 is the second wife of late. B. Ramachandra
Chari and not the only wife as shown in the genealogical tree. Further defendant No.7 is not born through defendant No.2 as shown in the genealogical tree but D2 is only the step mother of defendant No.7. The defendant No.7 denies that the plaintiff is entitled 1/3rd share in the suit schedule property, but the plaintiff is entitled 1/4th share of the suit schedule property. Late B. Ramachandra Chari through his second wife i.e., defendant No.2 had three children namely B. Raja Vinay Chandra, B.
Srividya and B. Anand Sai. Subsequently father of defendant No.7 died on 07.02.2006 leaving behind defendant No.7 and his second wife defendant
No.2 as his true legal heirs, who have succeeded to the properties left behind by father of defendant No.7. Since the remarriage of defendant
No.7’s father with defendant No.2, the defendant No.7 is residing at
Viskahapatnam with maternal aunt of defendant No.7 to avoid disturbances with her step mother who is defendant No.2. The defendant
No.7 paternal grand mother was the absolute owner and title holder of the suit scheduled property being Municipal No.11213, for an extent of 672
S.Yds., situated at Chikkadpally, Hyderabad. The said suit scheduled property was purchased by grand mother of defendant No.7 under a registered sale deed document No. 750/1953 dated 15.05.1953 and was 14 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 registered in the Office of the District Registrar, Hyderabad. The defendant
No.7’s grandmother by name Dr. B. Saraswathi during her life time has executed a registered Will bearing Doc. No.291/1981 dated 10.10.1981 registered in the office of the SubRegistrar, Chikkadpally, Hyderabad bequeathing her properties in favour of the husband by name Sri B.
Dharmalinga Chari and her four children i.e., plaintiff, and defendant
No.1, defendant No.6 and father of defendant No.7. As per the terms of the page No.3 and clauseVI of the registered Will dated 10.10.1981, her paternal grand mother has bequeathed the shop Nos. 8, 9 and 10 out house behind the shops and open space adjacent to it in favour of her grand father B. Dharmalinga Chary. In the said will it was stated that grand father of defendant No.7 will be the rightful owner for the usufruct, income from the constructions on the said areas for his life. B.
Dharamalingachari was given rights to enjoy the property during his life with no rights to alienate the suit property. The grand mother of defendant
No.7 died on 15.02.1983 and on her death the bequest made by her came in force. During the life time of the defendant No.7’s grandfather he was enjoying the property bequeathed to him. The defendant No.7 submits that her grand father B. Dharmalinga Chary died on 25.10.1987. On his death the properties bequeathed to her grand father by her grand mother were succeeded by the plaintiff, defendant No.1, defendant No.6 and the legal heirs of late B. Ramachandrachari. Defendant No.7 is one of the legal heirs of late B. Ramachandra Chari, she has an equal share along with defendant No.2. Defendant No.7 repeatedly requested for mediation by the brothers and sister of her father to partition the suit scheduled properties as per the registered Will of the late Smt. B. Saraswathi who is 15 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 paternal grand mother of defendant no.7, but to her utter surprise, even they hesitated to come forward and rescue defendant No.7’s agony. The defendant No.7 filed O.S.No.1977/2008 before this court for partition and mesne profits of bequeathed share of defendant No.7 father as per the Will which is pending for adjudication. After filing of suit O.S.No.1977/2008 for partition, defendant No.2 is making false allegations that she does not know who defendant No.7 is and playing fraud on the court by suppressing material facts and falsifying information under oath. Further, defendant no.2 is deliberately denying she is second wife and falsely claiming she does not know who defendant no.7 is with intention to grab the property.
Defendant No.2 is grabbing property belonging to other coowners resulting in suits and counter suits between defendant No.2 and other co owners. Defendant No.2 has evil eye on the property and falsely denying the relationship of D7 with her father (father of D7) with an intention to grab the property.
8.The record discloses that originally, the suit is filed against the three defendants. However, the defendants 3 to 5 are added as parties in
I.A.No.1004/2007 and the defendant No.6 is added as per orders in
I.A.No.736/2008, dated 10.09.2008 and the 7th defendant is added as per orders in I.A.No.189/2014 dated 14.08.2014.
a)The defendants 3 to 5 who are the children of the 2nd defendant have not filed any written statement.
b)The 3rd defendant by name Smt. K. Jayasree is shown as 6th 16 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant in the amended plaint which is filed on 27.08.2014.
9.On the basis of the above pleadings, the following issues are framed on 11.06.2007 in O.S.No.2152/2006 namely;
1. Whether the plaintiff is entitled for partition of the suit schedule property and entitle for 1/3rd share of the suit schedule property as prayed for?
2. Whether the plaintiff is entitled for partition of the suit schedule property?
3. To what relief?
Plaint averments in O.S.No.1854/2007:
This suit is filed by the plaintiff seeking the following reliefs:
i). to pass judgment and decree for partition of suit schedule property in four equal shares and allot one such share to the plaintiff.
ii). to pass final decree and deliver exclusive possession of the alloted share to the plaintiff.
iii). to direct defendant Nos.8 to 10 to deposit rent amount to the credit of the suit account in respect of the different portion in their occupation and to pay 25% in the rent amount to the plaintiff.
a) to direct the defendant Nos. 12 to 14 to deposit the rent amount to the credit of the suit account in respect of the building his occupation constructed on the suit property and to pay 1/4th share in the rent amount to the plaintiff.
iv). to pass mandatory injunction by directing defendant No.11 to demolish the illegal constructions made to the suit property that include the stair case and narrow shop on the ground floor along with encroachments in common passages and wall blocking access to suit property and three AC sheet sheds on first floor and all subsequent modifications and to restore the suit property and common passages to its original position as detailed in the schedule of the property.
17 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
v). to award cost of the suit.
2.The suit schedule property is shown as under:
All that property covered by Municipal No.11213 measuring 44.24 Sq.Yds situated at Chikkadpally, Hyderabad and bounded as under:
On North By : Private Road Leading to Prithivi Apartments
On South By : Tokyo Gifts Shops belong to plaintiff
On East By : Chikkadpally Main Road going towards Musheerabad.
On West By : Room No. 4 & 5 of H.No.11213, Chikkadpally.
(Amended as per Orders dated 19.08.2016 in I.A.No.211/2016)
3. The averments of the amended plaint in O.S.No.1854/2007 which is filed on 24.08.2016 are enumerated as under:
The defendants 1 and 2 are the natural brothers of the plaintiff. Apart from defendant Nos. 1 and 2, plaintiff had another brother by name B.
Ramachandra Chari, who died on 07.02.2006. Late B. Ramachandra Chari through his first wife Smt. Jyothi had one daughter by name Dhatrisri,
Defendant No.4, that after the death of Smt. Jyothi, late B. Ramachandra
Chari married defendant No.3 and through her defendant Nos. 5 to 7 were born. Plaintiff is eldest daughter of Sri B. Dharmalingachari and Smt. B.
Saraswathi, defendants 1 and 2 and late B. Ramachandra Chari are her younger brothers. Plaintiff’s mother was the absolute owner and possessor of property bearing Municipal No.11213, measuring 672 Sq.Yds situated at Chikkadpally, Hyderabad having purchased the same under a registered sale deed bearing Doc No.750/1953 dated 15.05.1953 and the said sale 18 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 deed was registered in the office of the District Registrar, Hyderabad. On south and eastern side of the above said property, there is a road, on the north there is a complex called “Prithvi apartments” and on the western side of the above said property, house properties belonging to different owners are located. There are mulgies facing the south and eastern side of the above said property and from southwestern side of the above said property, there is a open area, which leads to the residential portion, which is located on the northwest side of the above said property. During the life time of plaintiff’s mother B. Sarawathi, she has executed a registered will bearing Doc. No.29/1981, dated 10th October, 1981, registered in the office of the SubRegistrar, Chikkadpally, Hyderabad bequeathing her properties in favour of her husband namely Dharmalingachari and her four children i.e., plaintiff, defendant Nos.1 and 2 and late B.
Ramachandrachari. In terms of the said registered Will, her mother has bequeathed shop No.7 in the above referred property facing the
Chikkadpally road leading to Musheerabad, to the plaintiff. Likewise, Smt.
B. Saraswathii bequeathed three small shops bearing Nos. 8, 9 and 10 and out house behind those shops, which is marked as “B” portion in the said sketch plan along with open space in favour of Sri B.Dharmalingahcari.
The area allotted to B.Dharmalingachari is 75.8 Sq.Yds. Plaintiff’s father also given the right of usage of passages surrounding the house. Smt. B.
Saraswathi wife of Sri B. Dharmalingachari i.e., the mother of the plaintiff has executed a registered gift deed in favour of the plaintiff in respect of open terrace measuring 175 Sq.Yds covered by premises bearing Municipal
No. 11213 situated at Chikkadpally, Hyderabad. The said gift deed was registered as Doc. No.550/1982 in Block.1, Volume No.27 at pages 354 to 19 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 357 on 15.05.1982 in the office of the Sub Registrar, Chikkadpally,
Hyderabad. Under the said gift deed, she was put in possession of the property and plaintiff is enjoying the same as the absolute owner of the property. Apart from the terrace rights, plaintiff has been given right and liberty to use the two stair cases already in existence to reach the terrace of the said property. Smt. B. Saraswathi, mother of the plaintiff and defendant Nos. 1 and 2 and B. Ramachandra Chari died on 15.02.1983 and on her death the bequests made by her in her registered will came in force. B. Dharmalingachari, was enjoying the property bequeathed to him by his wife under the said registered Will as the absolute owner thereof. B.
Dharmalingachari died on 25.10.1987 leaving behind the plaintiff, defendant Nos. 1 and 2 and her another brother B. Ramachandrachari as his legal heirs who have succeeded to the property left by him. Apart from
Shop Nos. 8, 9 and 10 and the outhouse behind the shops in property bearing Municipal No. 11213, situated at Chikkadpally Hyderabad, B.
Dharmalingachari was not having any other properties. B. Ramachandra
Chari died on 07.02.2006 leaving behind defendant Nos. 3 to 7 as his legal heirs, who have succeeded to the properties left by him. In the property left by her father, plaintiff is having 1/4th share. Likewise, defendant Nos.
1 and 2 are having 1/4th share each and the remaining 1/4th share is that of defendants 3 to 7. Plaintiff’s husband retired as a Professor in IIT,
Madras and most of the time during service of her husband, she was at
Chennai. In the property left by her father, defendant No.8 is the tenant occupying out house portion along with single room and stores and defendant No.8 is running a restaurant under the name and style of M/s.
Govind’s Andhara Meals. In respect of the premises in occupation of 20 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant No.8 he is paying monthly rent of Rs. 8,500/ and the said rent is being collected by defendant No.1. After the death of her father, Shop
No.8 as shown in the sketch plan filed along with the suit was demolished and the area of the said shop is being used as passage for the rear side portion being used by defendant No.8. The said act of demolition was carried by defendant Nos. 1 and 2 in the absence and without the consent of the plaintiff. Shop No.9 is being occupied by defendant No.9 on a monthly rent of Rs. 1400/ defendant No.9 is running business under the name and style of M/s. Oriental Steel & Gas Stove Repairs and is paying monthly rent to defendant No.2, shop No.10 is being occupied by defendant No.10 and he is carrying on business under the name and style of M/s. Prabhakar Ghee Stores. The rent in respect of the said premises amounting to Rs. 3,000/ is being paid by defendant No.10 to defendant
No.2. On many occasions plaintiff has asked defendant Nos.1 to 3 to render the accounts in respect of the rents collected by them individually from defendants 8 to 10 but defendants 1 to 3 have always dodged the matter on one pretext or the other and till this date defendant Nos. 1 to 3 have not rendered any accounts. Plaintiff being a share holder in the suit schedule property, she is entitled to 1/4th share in the rent amount collected by defendants 1 to 3. Seeing the evasive attitude of defendants 1 and 2, plaintiff on 01.08.2007 called upon defendant Nos. 1 to 7 to partition the property left by her father and put her in separate possession.
On such demand, defendants 1 to 7 denied plaintiff’s right in her father’s property and have refused to partition the said property. Plaintiff has 1/4th share in her father’s property and she is also entitled to receive 1/4th share in the rent amount being paid by defendant Nos. 8 to 10 to 21 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant Nos. 1 to 3. When the plaintiff has called upon defendant No.8 to 10 to render true and proper account in respect of the rents paid to defendant Nos. 1 to 3 they have refused to pay her 1/4th share in her father’s property. In view of the evasive attitude of defendant Nos. 8 to 10, the rent amount i.e., being paid by them to defendant Nos. 1 to 3 is to be deposited to the credit of the suit account every month so that there will be proper apportionment of the rent amount as per the sharing ratio. In view of the refusal of defendant Nos. 1 to 7 to partition the property left by her father, she had no other alternative except to approach this Court and file suit for partition and separate possession and the defendants 8 to 10 who are the tenants are therefore proper and necessary parties to the suit. B.
Siddartha, Defendant No.1 by registered settlement deed bearing Doc.
No.2395/1999 registered in the office of the SubRegistrar, Chikkadpally on 04.10.1999 has settled northern portion of house property covered by
Municipal No.11213 measuring 102 Sq.Yds situated at Chikkadpally,
Hyderabad in favour of defendant No.11. Along with the said gift settlement deed, a sketch plan was also enclosed demarcating the portion of a gift made by defendant No.1 in favour of defendant No.11. Under the said settlement deed, defendant No.1 has settled room Nos.4 and 5 towards east and west of the house to defendant No.11. In fact, defendant
No.1 had no right to gift the space adjacent to room Nos. 4 and 5 as the said area is to be used by all the legal heirs of B. Saraswathi till stair case portion is constructed for reaching the roof over the mulgies. Apart from that, defendant No.1 also did not have any absolute right to gift the outhouse, single room and the open land with a store to defendant No.11 as the same was not absolute property of defendant No.1. Defendant No.1 22 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 by another registered gift settlement deed bearing Doc. No.2862 of 2002
dated 19.10.2002 registered in the office of the SubRegistrar,
Chikkadpally has made gift of northern portion of house property covered by Municipal no.11213 to defendant No.11. The details of the gift are clearly described on page Nos.6 to 9 of the said gift settlement deed. In the said registered gift deed, defendant No.1 has made gift of 179 Sq.Yds in the property covered by municipal No. 11213, Chikkadpally, Hyderabad.
The measurements as shown by defendant No.1 on page No.7 of the gift deed as referred above are not correct. B. Siddhartha has made gift of outhouse behind shop Nos. 8 to 10 and the open space to defendant No.11.
In fact, the defendant No.1 had no exclusive right to gift the same as the same is being owned by the plaintiff, defendant No.1, defendant No.2 and the legal heirs of B. Ramachandra Chari i.e., defendant No.3 to 7.
Defendant No.1 has fraudulently gifted the portion of the terrace to the extent of 288 Sq.Ft having knowledge that the terrace over the entire residential portion measuring 175 Sq.Yds or 1575 Sq.Ft was gifted to the plaintiff by her mother B. Saraswathi under a registered gift deed bearing
Doc. No.550/1982, registered in Block No.1, Volume No.27 at pages 354 to 357 in the office of the SubRegistrar, Chikkadpally Hyderabad on 15.05.1982. Defendant No.1 had no rights what soever on any portion of the terrace over the residence and plaintiff is the exclusive and absolute owner of the terrace along with all rights transferred through the terrace gift deed. In total defendant No.1 has made gift of 1616 Sq.Feet equivalent to 179 Sq.Yds to defendant No.11, defendant No.1 has malafidely made gift of the above said area of which he is not exclusive owner. Apart from that defendant No.1 has made gift of the so called 23 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 portion owned by him twice. The gift deed dated 04.10.1999 does not give the details and the measurements of the various portions and the gift settlement deed dated 19.10.2002 give the details of the gift and also the measurements of the various portions. The increase in the gifted area from 918 Sq.Ft to 1616 Sq.Ft is itself an indication of fraud perpetuated by defendant No.1 and defendant No.11. Defendant No.1 has excluded Shop
No.8, Shop No.9 and Shop No.10 in his gift deed executed in 1999 but included the same in the gift deed executed in 2002. Defendant No.1 in collusion with defendant No.11 has played fraud for wrongful gain and dishonestly had made gift of area of which he is not the absolute owner.
Because of the fraudulent gift made by defendant No.1 to 11, the rights of the plaintiff are being affected. Plaintiff has also been made to learn the defendant No.11 has mortgaged the property covered by gift settlement deed dated 19.10.2002 in favour of bank as guarantor in a loan transaction. The subject matter of the suit is more clearly described in the plan annexed to the plaint. In respect of the subject matter of the suit, defendant No.1 has made gift of the property to defendant No.11 by way of registered gift deed. In fact defendant No.1 herein did not have any right to include the subject matter of the suit in the gift deed executed by him in favour of defendant No.11. In roadwidening scheme Municipal
Corporation of Hyderabad has acquired portion of the property belonging to the plaintiff, Siddhartha, Chandrasekhar and legal heirs of late
Ramachandrachari. Malafidely defendant No.1 and defendant No.11 wanted to knock away the compensation amount paid by the Municipal
Corporation in respect of the property acquired by them. When the said fact has come to her knowledge, she has moved objection petition before 24 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the Municipal Corporation and accordingly the compensation amount has been sent to the court. On 05.06.2012 and 06.06.2012 the Municipal
Corporation of Hyderabad has demolished the suit schedule property haphazardly and taking advantage of the same, defendant No.1 and defendant No.11 out of malafide intention has started raising illegal construction without consent of coowners or permission from municipal corporation. At that juncture defendant No.2 on 07.06.2013 has moved an application in I.A.No.449/2012 in O.S.No.2152/2006 restraining the defendant No.1 from changing the nature of the suit property. The said application was heard by the V Senior Civil Judge and Statusquo order was passed and parties to the suit were directed to maintain their position.
Defendant No.11 having knowledge of the statusquo order brushed aside the orders of the status quo passed in this suit by the V Senior Civil Judge,
City Civil Court, Hyderabad and has continued raising construction in the suit property. The defendant No.11 along with defendant No.1 has forcefully constructed a staircase and a narrow shop on the ground floor, and constructed three AC sheet sheds on the first floor and are still continuing to make additional modifications with intention to dispossess coowners by blocking of access to the suit property. The construction is unsafe, and illegal and therefore needs to be demolished. Defendant
No.11 on a concocted cause of action filed suit O.S.No.1488/2012 on file of X Junior Civil Court, City Civil Court, Hyderabad on 29.06.2012 suppressing information about statusquo order passed in this suit to allow defendant No.11 to proceed openly and uninterruptedly with the illegal constructions. The illegal construction carried out by the defendant No.11 encroaches on common passages, substantially changing the nature of 25 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 property and was done with intention to grab the property. The common passage encroached is to west of the outhouse and east of room 4 and room 5. The encroached common passage to the west of the suit property measures 16’ x 6’ and is portion of area marked as C7 in the plan annexed to the plaint. The encroached common passage is needed for access to the suit property from the residence as an easement of necessity. Defendant
No.11 has constructed a Wall in common passage blocking access to the suit property from the residence. The construction of the Wall is illegal, done without consent and ought to be demolished. Defendant No.11 and defendant No.1 have merged the common passage marked as C7 in the annexed plan with room No.4 and room No.5 of the residence along with portion of th suit property into a single shop on the ground floor thereby completely changing the nature of property. Defendant No.11 on the ground floor has constructed a staircase measuring 3’ x 10’ and a narrow shop measuring 3’ x 8’ in the open space of the suit property which is illegal and ought be demolished. Further on the ground floor defendant
No.11 has merged the outhouse of the suit property with portion of common (C7) to the extent of 16 x 16 into a single shop on the ground floor along with room 4 and 5 thereby changing the nature of the property.
The common passage was to be used by all coowners to access the suit property from the residence and the illegal construction encroaching the common passage to the extent of 16’ x 16’ ought to be demolished and common passage restored as per schedule plan. Defendant No.11 in total has raised 150 Sq.Ft of illegal construction on the ground floor. The defendant No.11 raised three AC sheet sheds on first floor measuring 5’ x 12’, 11’ x 12’, and 12’ x 15’. Two sheds on the first floor measuring 5’ x 12’ 26 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and 11’ x 12’ are road facing and the third shed measuring 12’ x 15’ is to the west of the first two sheds. Defendant No.11 has made 252 Sq.Ft of illegal AC sheet construction on the first floor which ought to be demolished. Plaintiff has annexed a plan clearly showing the extent of illegal constructions done on the suit property after road widening. The very construction made by the defendant No.11 in the suit property without obtaining the consent and concurrence of other share holders is illegal and is liable to be demolished. In view of the subsequent developments, and the illegal construction made by defendant No.11, in the suit property and to common passages in blatant contempt of orders passed by this Court, plaintiff is entitled to seek relief of mandatory injunction against defendant No.11 directing her to demolish the illegal constructions made to the suit property including the staircase and narrow shop on the ground floor along with encroachments in common passages and wall blocking access to suit property and three AC sheet sheds on first floor and to restore the suit property and common passages to its original position as detailed in the schedule of the property. Plaintiff on inquiry in the month of November, 2012 came to know defendant No.11 was trying to alienate the suit property and induct third parties. The defendant No.1 and defendant No.11 posted “ToLet” signs for the suit property, even while the illegal construction was still being raised. Plaintiff on 10.12.2012, filed an application I.A.No.1279/2012 in this suit restraining the defendant No.1 from alienating the suit property and inducting 3rd parties, which was allowed on 21.01.2013. Inspite of having knowledge of orders passed defendant No.11 entered into a private lease agreement with
Mr. Laxman Das, defendant No.12 on 28.11.2012 without knowledge or 27 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 notice to other coowners. Defendant No.1 entered into an illegal agreement with defendant No.12 even before the construction was completed. Defendant No.11 and defendant No.12 have entered into a registered rental agreement dated 28.11.2012, registered as Doc.
no.3834/2012, registered in the office of the SubRegistrar, Chikkadpally,
Hyderabad. Defendant No.12 leased the common property for Rs. 27,000 per month and also paid an interest free deposit of Rs. 9,00,000/ to defendant No.11. Defendant No.11 artificially fixed a low rent in collusion with defendant No.12 to defraud other coowners, that defendant No.12 in collusion with the plaintiff has trespassed and forcefully occupied the illegal structure with intention to make the changes permanent thereby causing irreparable injury to other coowners, that defendant No.12 having knowledge of the status quo order passed by the V Senior Civil Judge in
I.A.No.449/2012 in suit O.S.No.2152/2006 and having knowledge that defendant No.11 is raising an illegal construction in balance and willful contempt of a court order, went ahead and entered into a private lease agreement with the defendant No.11. Defendant No.12 having knowledge that there are coowners in the suit property and that suits are pending on the suit property, has colluded with defendant No.11 to defraud other co owners. Defendant No.12 in collusion with defendant No.11 filed suit
O.S.No.13/2013 on the file of the X Junior Civil Judge, City Civil Court,
Hyderabad on 02.01.2013 against all coowners seeking perpetual injunction on a false and concocted cause of action, plaintiff is contesting the suit and the same is pending trial. Along with suit O.S.No.13/2013, defendant no.12 filed an I.A.No. 1 of 2013 in O.S.No. 13 of 2013 seeking adinterim injunction against all coowners and an order of statusquo was 28 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 passed on both parties to maintain their positions. While the matter stood thus, defendant No.12 has blatantly and willfully disregarded the orders of status quo and continued renovations and improvements of the suit property in direct contempt of the court orders and is punishable for the same. A contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt. Under the guise of the interim injunction petition, defendant No.12 in collusion with defendant No.11 sought to hold on to the illegal gains and is using the court process to cause delays thereby causing irreparable injury to all other coowners. Defendant No.12 having admitted knowledge of other coowners should have got the permission from all coowners to lease the suit property. Defendant no.11 has inducted defendant No.12 as a 3rd party and under the guise of a lease is trying to extend the duration of her illegal occupation. Collusion between defendant no.11 and defendant No.12 is evident by the very low rent fixed for the suit property and also the intermediating filing of a frivolous lawsuit O.S.No.13/2013 by defendant No.12. The suit O.S.No.13/2013 was filed by defendant no.12 on behalf of defendant No.11 using the service of her advocate allowing her to hold onto the fruits obtained by illegal occupation and with intent to dispossess other coowners. Collusion between defendant No.11 and defendant No.12 is further evidenced by the fact that defendant No.11 was not made party to suit O.S.No.13/2013 although she is a proper and necessary party. Defendant No.11 in March of 2013, has inducted another third party M. Nagaraju, defendant no.13.
Defendant No.13 in a private agreement leased a shop on first floor measuring 11’ x 12’ for Rs. 5,000/ per month and also paid an interest free deposit of Rs. 2,00,000/ to the defendant No.11. In October, 2013, 29 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 defendant No.11 inducted B. Laxman Rao, defendant no.14 as additional third party and leased the second shop measuring 3’ x 8’ on ground floor for Rs. 4,000/ per month taking an advance of Rs. 1,50,000/. Defendant
No.11 artificially fixed low rents in collusion with defendants 12 to 14 by taking huge interest free deposits to offset the low monthly rents thereby defrauding other coowners. Further, defendants 13 and 14 were inducted into the suit property in direct contempt of orders in I.A.No.1279/2012 in this suit prohibiting defendants from inducting third parties. Defendant
No.11 continues to induct other 3rd parties and has posted “ToLet” signs to lease out the remaining shop on the first floor. After the road widening of the suit property, defendant No.11 styling herself to be as absolute owner of the suit property and in the rear side varandah portion has raised construction consisting of ground and upper floors. Defendant No.11 has encroached on common passages surrounding the residential portion which is needed to access the suit property as easement of necessity. After completion of the construction, defendant No.11 has inducted defendant
No.12 to 14 in the constructions made in the suit property on monthly rents of Rs. 27,000/ Rs. 5,000/ and Rs. 4,000/ respectively. Apart from that defendant No.11 has also taken various sums of Rs. 9,00,000/ and
Rs. 2,00,000/ and another unknown amount as security deposit at the cost of fixation of low rents. The very constructions made by the defendant
No.11 in the suit property without obtaining the consent and concurrence of other share holders is illegal and is liable to be demolished. Defendant
No.11 has no right to receive the rent in respect of the constructions made in the suit property. In fact the very gift deed executed by defendant No.1 in favour of defendant No.11 is illegal and the same is not binding upon 30 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the plaintiff. Pending disposal of the suit defendant No.12 be directed to deposit the rent to the credit of the suit account. Plaintiff in the rent amount is entitled to 1/4th share. The Municipal Corporation of
Hyderabad in order to avoid congestion of vehicular movement due to heavy traffic and for the purpose of metro rail project has taken up road widening from Narayanaguda junction to Musheerabad junction to a width of 100 feet road and in this regard an area measuring 38.17 Sq..Yds of the suit property was acquired by the Special Deputy Collector, Land
Acquisition, GHMC, Hyderabad and compensation amount of
Rs. 14,38,876 was deposited to the credit of the account of Chief Judge,
City Civil Court, Hyderabad. At the time of filing of the suit, the suit property was tentatively measured at 75.8 Sq.Yds but infact the suit property measured 82.41 Sq.Yds. In view of the acquisition of an area of 38.17 Sq.Yds out of the suit property, the property now available for partition measures 44.24 Sq.Yds. Plaintiff has 1/4th share in the suit property now measuring 44.24 Sq.Yds and defendant No.1 and 2 are having 1/4th share each and the remaining 1/4th share is that of the defendants 3 to 7. (Amended as per orders dated 19.08.2016 in I.A.No.211 of 2016). Hence, the suit.
4. The 1st defendant has filed a written statement opposing the relief claimed in the suit with the following averments:
The gift deed is false and created and prepared when her mother was fell ill and not mentally sound. The said gift deed is for vacant space (nature) not for terrace. In this connection the plaintiff filed suit for terrace rights in the year, 1997 in O.S.No.2234/1997 and it was dismissed 31 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 on 21.01.2004, further there was no appeal and there was no terrace of the plaintiff. In this connection plaintiff’s appeal for sanction of the 1st and 2nd floors on the old damaged house No. 11213 on the open terrace but the town planning officer and concerned authorities of MCH refused against the complaint on 05.02.1997 by the D1, D2 and D3 and MCH authorities given acknowledgment to the defendant No.1. So there is no question of rights as per the gift deed Doc. No.550/1982, Book No.1 volume No.27 at pages 354 to 357 as the gift deed was not recognized by the family members and not signed by te D1, D2 and D3 at the time of registration.
So the gift deed is not maintainable by all means. The plaintiff has no right to claim for terrace as per the gift deed. B. Dharmalinga Chary her father was enjoying the property bequeathed to him by his wife. It is true that B. Dharmalinga Chary died on 25.10.1987 leaving behind the plaintiff, defendants 1, 2 and 3. The plaintiff admitted the facts that her husband retired as a professor in IIT, Madras and most of the time during service of her husband, she was at Madras and she was not in possession on even one inch place from the date and as on today. So she has no right to claim the suit schedule property as per the Gift Deed and Will Deed. Plaintiff states that in the property left her father, defendant No.8 is the tenant by the defendant no.1 occupying out house portion along with single room and stores, the defendant No.8 running a restaurant under the name and style of M/s. Govindas Andhra Meals in respect of the premises in occupation of defendant No.8 is paying monthly rent of Rs. 8,500/ and the said rent is being collected by the D1 who is the owner of suit schedule property. The defendant No.1 is the eldest son of B. Dharmalinga Chary who died on 25.10.1987, during his life time Mr. B.Dharmalinga Chary 32 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 given oral gift in favour of his eldest son in the matter of his sincere service to his father and developed the property by evicting the old tenants and paid the income taxes and all other taxes to be paid by
Mr. B. Dharmalinga Chary. Therefore, B.Dharmalinga Chary owner of the vacant place shop No. 8, 9 and 10 without house behind the shops in property bearing Municipal No. 11213/A/A situated at Chikkadpally,
Hyderabad which portion isunder the custody of the D1 was declared by his father as an absolute owner in the matter of enjoyment and at the time of declaring the defendant No.1 as owner, each and everybody of the family members and elders in the gold smith community appreciated and admitted the decision of the Kartha of Hindu undivided joint family. The defendant No.9 is running a business under the name and style of M/s.
Oriented Steel and Gas Stove Repair, shop No.10 is being occupied by
Defendant No.10 carrying on business under the name and style of M/s.
Prabhakar Ghee Stores paying monthly rent Rs 3,000/ through his authorized agent of defendant No.1. Plaintiff has no right to any profit and loss relating to the defendants 1 to 3 and she has no right to file any claim petition, objection on the suit schedule property. The defendant No.1 is the kartha of Hindu joint family property and the eldest son of Mr. B.
Dharmalingachary and Smt. Saraswathi according to Hindu law, the
Kartha is the supreme in the matter of decisions, borrowing and payments.
The plaintiff is the eldest daughter of B. Dharmalingachary who was married on 02.05.1996 at the age of 15 years. At the time of her marriage towards Pasupu Kumkumka, 600 yards vacant place at Vizag was given towards her share by Dharmalinga Chary and her family members. Now the plaintiff is having two houses at Miyapur, each house is 300 Sq.Yds, in 33 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 addition she is having two big flats at Jetkar Bhavan, at Chikkadpally, she is having 2000 Sq.Yds at Keesaragutta known as Gahtkesar. The plaintiff is having unlimited properties not only in A.P. but also having own houses at
T. Nagar, Chennai, and vacant lands nearby at Madras. The plaintiff has to return excess property acquired from her parents without justification of the defendants. The plaintiff has no right to demand any explanations accounts and to interfere in the personal mater of the Kartha of Hindu
Joint Family who is Mr. B. Siddartha as D1. This defendant therefore prays this court to dismiss the suit with exemplary costs.
5.The 2nd defendant has filed a separate written statement seeking dismissal of the suit by contending as under:
The suit filed by plaintiff is false, misconceived and not maintainable either under law or on facts. It is true that the defendants 1 and 2 are natural brothers of plaintiff, it is also true that late Ramachandra Chary who died in accident on 07.02.2006 is the brother of plaintiff and defendants 1 and 2. It is also true that late Ramachandra Chary through his first wife Smt. Jyothi had one daughter by name Dhatrisri who is defendant No.4. It is also true that late B. Ramachandra Chary married defendant No.3 through defendant No.3, defendants 5 to 7 were born. It is true that plaintiff is eldest daughter of B. Dharmalingachary and B.
Saraswathi. It is also true that defendants 1 and 2 including late B.
Ramachandrachary are younger brothers of plaintiffs. It is true that their mother late B. Saraswathi is the absolute owner and possessor of house bearing No.11213, admeasuring 672 Sq.Yds situated at Chikkadpally,
Hyderabad. It is also true that the same was purchased by B. Saraswathi 34 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 vide registered sale deed bearing Doc. No. 750/1953 dated 15.05.1953. It is also true that the dimensions mentioned in the plant in respect of four sides are true and correct. It is also true that there is an open area which leads to residential portions, which is located at northeast side of the suit schedule property. It is true that during life period of B. Saraswathi, she executed a registered Will bearing Doc. No.29/1981 dated 10.10.1981.
This will deed was executed in favour Dharmalinga Chary and her four children i.e., who are plaintiff and defendants 1 and 2 including late B.
Ramachandra Chary. It is also true that along with registered Will deed, a sketch plan was also enclosed giving details of the allotments. It is also true that as per the Will deed, shop No.7 was given to plaintiff. It is true that as per the will deed 75.8 Sq.Yds was allotted to late B. Dharmalinga
Chary who is the husband of B. Saraswathi and father of plaintiff and defendant No.1 and 2 and B. Ramachandra Chary. It is also true that the passage left is easementary right to all the family members. It is false to say that as per the gift deed bearing Doc. No.550/1982 dated 15.05.1982, the plaintiff is entitled for open terrace admeasuring 175 Sq.Yds covered by premises municipal No.11213, the said gift deed is fabricated by the plaintiff only for the purpose of this case and she is not entitled in respect of open terrace admeasuring 175 Sq.Yds. The said gift deed is not at all enforceable, as it is fabricated and no possession was given to the plaintiff as mentioned in the plaint and she is not at all a owner for the said terrace and she was not put in possession. Hence, she does not have any right in the terrace as she mentioned and no right was given to plaintiff to use two staircases. It is true that after the death of B. Saraswathi on 15.02.1983 the plaintiff and defendant No.1 and 2 including B. Ramachandra Chary 35 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and B. Dharmalinga Chary bequeathed the properties as per the registered will deed and the will deed came into force. It is true that late B.
Dharmalinga Chary died on 25.10.1987 leaving behind plaintiff, defendants 1 and 2 including late B. Ramachandra Chary as his legal heirs who succeeded to the property left by him. It is true that B. Ramachandra
Chary who is the brother of plaintiff and defendant No.1 and 2 died on 07.02.2006 leaving behind defendant no.3 to 7 as his legal heirs. It is true that plaintiff is entitled for 1/4th share in the property left by late
Dharmalinga Chary. It is also true that defendants 1 and 2 are also entitled for 1/4th share each in late Dharmalinga Chary property and for remaining 1/4th share the defendant Nos. 3 to 7 are entitled. It is true that plaintiff’s husband retired as professor in IIT Madras and it is also true that defendant No.8 is the tenant who is occupying the out house portion along with single room. It is also true that the defendant No.8 is running a restaurant under the name and style M/s. Govinds Andhra Meals. It is also true that defendant No.8 is paying monthly rent of Rs. 8,500/ to defendant No.1. It is false to say that after the death of late Dharmalinga
Chary shop No.8 was demolished by defendants 1 and 2, the said shop
No.8 was demolished by defendant No.1 but not defendant No.2. It is true that shop No.9 is occupied by defendant No.9 which is alloted to late B.
Ramachandra Chary and the defendant No.2 is not aware, how much rent is paid by defendant No.9. It is not true to say that shop No.10 is occupied by defendant No.10. The shop No.10 is occupied by defendant No.2 and defendant No.2 is running a public telephone booth through his wife by name B. Vijayabharathi for their livelihood, but the defendant No.2 is not receiving any rent as mentioned in the plaint. The said shops i.e., shop 36 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 nos. 8, 9 and 10 are completely fell to road widening in the master plan, hence those shops and the land covered under the shops do not fall to joint ancestral property. Hence the plaintiff is not entitled for any rent from defendant Nos. 1 to 3. It is false to say that the plaintiff called defendants 1 and 2 on 01.08.2007 along with defendants 3 to 7 for partition of the property left by late Dharmalinga Chary and it is also false to say that on such demand the defendant Nos.1 to 7 denied the plaintiff’s right in late
Dharmalingachary’s property and refused to partition the suit schedule property. The plaintiff herself has her share and she is enjoying accordingly, in order to extract financial gain this false suit is filed. The plaintiff does not have any right or share as prayed, as already she has her share according to the Will deed. The plaintiff got married long back, at the time of her marriage she was blessed with gold, silver, movable and immovable articles, after the same again the plaintiff was given share in this Chikkadpally property and she not satisfied with that property and she need some more financial gain from defendants, that is why she filed this false suit only to extract financial gain from defendants and she is not entitled for the share as prayed. The defendants 1 and 2 including late
Ramachandra Chary’s legal heirs are entitled in the said late Dharmalinga
Chary property but the plaintiff is not entitled in the said property. There is no cause of action to this suit as mentioned by the plaintiff and the court fee paid by the plaintiff is not correct as the schedule property which the plaintiff is claiming is in the hands of defendants 1 to 3. Hence, court fee paid by her is not sufficient. Neither the suit filed by the plaintiff is maintainable under law nor on facts, and has to be dismissed with costs.
37 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
6.The 3rd defendant has filed a written statement seeking to dismiss the suit by contending as under:
It is true that the plaintiff is the sister of defendants 1 and 2 and late
B. Ramachandra Chari. The allegation that B. Ramachandra Chari was having his 1st wife Smt. Jyothi is absolutely false. The allegation that D4 is the daughter of late B. Ramachandra Chari is also false, D4 is no way concerned with the property. D3 is the wife and D5 to D7 are the only children to late B. Ramachandra Chari. The plaintiff is a litigant and with an intention to cause loss to this defendant and her children, she made D4 as party and making all false allegations. It is true that the plaintiff is the eldest daughter of B. Dharmalingachari and Smt. B. Saraswathi. It is true that B. Saraswathi mother of D1 and D2 was the absolute owner of all that premises bearing No.11213 Chikkadpally. It is true that mother of D1 and D2 executed registered Will in 1981, in the said Will, the plaintiff was allotted only shop No.7 but not any other properties. She has no right in the suit schedule property and the suit is liable to be dismissed. The shop
Nos.8, 9 and 10 was allotted to the father of D1 and D2 B. Dharmalinga
Chari. The suit scheduled property is inherited by 3 sons, D1, D2 and B.
Ramachandra Chari. The plaintiff has no right to claim the suit property or any other properties except shop No.7. The allegation that the mother of plaintiff in the registered will has bequeathed open terrace measuring 175
Sq.Yds covered by the premises bearing No. 11213, is categorically denied and false. The premises bearing No.11213 covers in area 672
Sq.Yds. The husband of the plaintiff who is employee working in Hong
Kong recently shifted to Hyderabad along with plaintiff. The question of the plaintiff in possession of the property does not arise. The plaintiff has 38 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 no rights in the terrace. The shop No.7 of the plaintiff is going in road widening, that is the reason the plaintiff jealous on D1 to D3 making false claims. The plaintiff is having so many properties worth crores of rupees still she is claiming to trouble D1 to D3 with a litigation mind. B.
Dharmalinga Chari has not executed any will nor made any arrangement in respect of suit property hence the suit property equally goes to three sons,
D1, D2 and D3. Plaintiff and D4 are no way connected to the suit property. The defendants 5, 6 and 7 have right in the suit property as legal heirs of late B. Ramachandra Chari and children of D3. The plaintiff has no right in the suit scheduled property. The plaintiff is not entitled for 1/4th share in the rents collected and she is not entitled 1/4th share in the property. The allegation that the plaintiff called upon the defendants 1 to 7 to partition the property is categorically denied and false. The plaintiff never demanded the defendants to partition the suit scheduled property.
The defendant No.2 already filed partition suit is respect of 1/3rd share in the suit scheduled property in O.S.No. 2152/2006 on the file of Vth Senior
Civil Judge, at Hyderabad and the same is pending. Hence, this suit is
liable to be dismissed with costs.
7.The 4th defendant has filed a written statement with the following averments as under:
Even as per the document No.2 of the plaint filed by the plaintiff i.e., the certified copy of the registered will, dated 10.10.1981 the property left by B. Dharmalingachari i.e., father of the plaintiff should go to the father of the defendant No.4. It is true that B. Ramachandra Chari died on 07.02.2006 leaving behind defendant No.3 as his true legal heir. The 39 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 plaintiff has no right nor any locus standi to claim for the property of her father as the same should come to the share of the father of the defendant
No.4 as per the registered will deed dated 10.10.1981. In the paraV of the registered will, dated 10.10.1981 the mother of the plaintiff has bequeathed the room No.2 and 7 to the father of this defendant and also room No.1 to the father of the plaintiff and it is also clearly mentioned in the will that after th demise of the father of the plaintiff the same room
No.1 will go to the father of this defendant and in the said registered will the shop Nos. 1 and 2 were also proportionated the share of the father of this defendant. Till the death of this defendant’s father there were no disturbances in this defendant’s family and the property was jointly enjoyed by both this defendant and the defendant Nos. 3 and 5 to 7 along with this defendant’s father, but immediately after the death of this defendant’s father i.e., on 07.02.2006 the defendant Nos. 3, 5 to 7 created unpleasant situations, environment and also the step motherly attitude towards this defendant, for the best reasons know to them.
8.The 11th defendant has filed a separate written statement by contending as under:
It is true and correct that Smt. B. Saraswathi, mother of the plaintiff and defendant Nos. 1 and 2 and B. Ramachandrachari died on 15.02.1983 and on her death the bequests made by her in her registered will came in force. It is true and correct that her father B. Dharmalingachari died on 25.10.1987 leaving behind the plaintiff, defendant Nos.1 and 2 and her another brother B. Ramachandra Chari as his legal heirs who have succeeded to the property left by him, apart from shop Nos. 8, 9 and 10 40 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and the out house behind the shops in property bearing Municipal No.11 213, situated at Chikkadpally, Hyderabad. It is false and denied that B.
Ramachandra Chari died 07.02.2006 leaving behind defendant Nos. 3 to 7 as his legal heirs, who have succeeded to the properties left by him, in the property left by her father she is having 1/4th share, likewise, defendant
Nos.1 and 2 are having 1/4th share each and the remaining 1/4th share is that of defendant Nos. 3 to 7. The deceased Sri B. Dharmalinga Chary, father of plaintiff and defendants 1, 2 and father inlaw of the defendant
No.3 during his life time itself orally partitioned the property and accordingly after his death on 25.10.1987 the defendants 1, 2 and defendant No.3 taken the possession of the properties in accordance with the oral partition made by the deceased B. Dharmalingachari. As per the oral partition deed the defendant No.1 coming to the possession of the room No.4 and 5 and accordingly defendant No.2 coming to the possession of shop No.10 was occupied by the defendant No.2 and the shop No.9 was occupied by the defendant No.3 and in the same way the open warandah behind the room nos. 5, 6 and 7 was occupied by the defendants 2 and 3 and they are in possession of the property from the date of death of their father and enjoying the property but unfortunately due to intimidating nature of the plaintiff and due to filing of false cases by the plaintiff no tenant is coming forward to occupy the above said shops, that’s why the above property was given to the tenants on meager rent only. The plaintiff being a very ambitious lady even though as an eldest member of family, she had got hold of major portion of properties of
Smt. B. Saraswathi and even after also she blackmailed and threatened the parents i.e.,. B. Saraswathi and B. Dharmalingachari and knocked away big 41 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 share of the properties from them and not satisfied with that also she had pressurized B. Saraswathi to make illegal gift of upper portion of the above said property which is not there vide Doc. no.550/1982. Although the above said gift is not valid as the gift has not transferred any property to the plaintiff. The Municipal corporation of Hyderabad in order to avoid congestion of vehicular movement due to heavy traffic and for the purpose of metro rail project has taken up road widening from Narayanguda junction to Musheerabad junction to a width of 100 feet road in this regard an area measuring 38.17 Sq.Yds of the suit property was acquired by the
Special Deputy Collector, Land Acquisition, GHMC, Hyderabad and compensation amount of Rs. 14,38,876/ was deposited to the credit of the account of Chief Judge, City Civil Court, Hyderabad. Due to the above said demolition the property of the defendant No.11 was effected and exposed to the road hence she had made some arrangements to close the property she had made like a shop and given the same on rent to the defendant
No.12 and he has also paid very meager rents in view of the threats and continuous harassment made by the plaintiff. The plaintiff is not a coparcener of the defendants 1 to 3 as the father of the defendants 1 to 3 partitioned the property between the defendants 1 to 3 only. The plaintiff is not entitled to claim any share in the suit property as a coparcener because the plaintiff is not a coparcener and cannot claim any share in view of judgment of Hon’ble Supreme Court of India in Civil Appeal
B.No.7217 of 2013 between Prakash and others Vs. Phulvathi. In the said judgment the Hon’ble Supreme Court of India restricted the right of women seeking equal share in the ancestral property and observed that the
Hindu Succession (Amendment) Act 2005 will not give property rights to a 42 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 daughter if the father died before the amendment came into force i.e., on 09.09.2005. Admittedly the father of plaintiff B. Dharmalingachary died on 25.10.1987 itself, as such the plaintiff is not entitled for any share in the property of the deceased B. Dharmalingachary. Even the plaintiff also knows about the oral partition effected by the B. Dharmalingachary that’s why only she had not made any claim upto 2006 but due to her ambitious nature and continuous litigant mentality and not able to see the defendants 1 to 3 prosper, she had filed this present suit and tried to harass and knock away the valuable share of he property highhandedly. Therefore, this suit is liable to be dismissed with exemplary costs.
9.The defendants 12 to 14 have filed a memo adopting the written statement filed by the defendant No.11.
10.On the basis of the above pleadings, the following issues are settled for trial on 23.06.2009 namely;
1. Whether the plaintiff is entitled for partition of the suit schedule property as prayed in the plaint?
2. Whether the plaintiff is entitled for possession of share in the suit schedule property?
3. Whether the plaintiff is entitled to seek relief to direct D8 to D10 to deposit rent to the credit of suit as prayed in the plaint?
4. To what relief?
11.On 19.04.2017 the following three additional issues framed as under:
1. Whether the plaintiff is entitled to seek the relief against defendant Nos. 12 to 14 to direct them to deposit the rent to the credit of the suit as prayed for?
43 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
2. Whether the plaintiff is entitled to seek the relief of mandatory injunction against defendant no.11 for demolition of illegal construction and restoration of suit property and common passage to is original position as prayed for?
3. Whether there is any oral partition between the defendant Nos. 1 to 3 and their father in respect of the properties as constructed by defendant No.1?
12.As already indicated above, the suit in O.S.No.1854/2007 is clubbed with O.S.No.2152/2006 and common evidence is recorded in
O.S.No.2152/2006 by treating the said evidence recorded in the said suit
as evidence in O.S.No.1854/2007 also.
13.In O.S.No.2152/2006, the plaintiff’s wife by name Smt. B. Vijaya
Bharathi is examined as PW1 and got marked Ex.A1 to A3 on her behalf.
The wife of the 1st defendant in O.S.No. 2152/2006 is examined as DW1.
The 6th defendant in O.S.No.2152/2006 who is the plaintiff in
O.S.No.1854/2007 is examined as DW3. Due to inadvertence, she is
described as DW3 instead of DW2 and therefore her evidence shall be treated as DW2.
14.Issue Nos. 1 and 2 in O.S.No. 2152/2006 and issues Nos. 1 to 3 and
additional issue Nos. 1 to 3 in O.S.No.1854 of 2007 :
PW1 B.Vijaya Bharathi is the wife of the plaintiff in
O.S.No.2152/2006. In her chief evidence affidavit, as P.W.1, she has
testified on behalf of the plaintiff to the contents of the plaint in the suit and claimed that late Dr. B. Saraswati wife of late B. Dharmalingachary was the mother of the plaintiff and was the absolute owner of 600 Sq.Yds in house No. 11213, Viveknagar Chikkadpally, Hyderabad, consisting of seven (7) shops and eight (8) rooms along with open space. PW1 has 44 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 further stated that B. Saraswathi during her life time has executed a registered Will deed under the original of Ex.A2 bearing Doc. No. 29/1981,
dated 10.10.1981 by dividing the constructed property among her three
(3) sons and a daughter and left the open space admeasuring 80 Sq.Yds and the said open space is the subject matter of the suit in
O.S.No.2152/2006 and as per the Ex.A2, the suit schedule property was
under the custody of late Darmalaingachary till his death and after his death, it became the common property of the plaintiff and the defendants as joint family property which is liable for partition but the 1st defendant has declined to partition the suit schedule property.
15.PW1 has also claimed in her chief evidence affidavit that
K. Jayasree (6th defendant in O.S.No.2152/2006 and plaintiff in
O.S.No.1854/2007) is entitled for 1/3rd share and the defendants 1 and 2
are entitled for 1/3rd share in the suit schedule property. She has also marked Ex.A1 which is the market value certificate of the suit schedule property and Ex.A3 which is another copy of the registered Will Deed
dated 10.10.1981, though, Ex.A2 is also a certified copy of the said Will.
16.In her crossexamination on behalf of the 2nd defendant in
O.S.No.2152/2006, PW1 has stated that Ramachandra Chary who is the
husband of D2 died recently and D2 and her children are residing in a portion of the suit schedule property.
17.In her cross examination on behalf of the 1st defendant in O.S.No.
2152/2006, PW1 has stated that without dividing the property covered under the Will, her fatherinlaw died 20 years back and denied a 45 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 suggestion that her fatherinlaw has orally gifted the suit schedule property in favour of the 1st defendant due to love and affection in the year, 1987.
18.PW1 has admitted in her further crossexamination that D1 is in possession of the suit schedule property, but denied a suggestion that D1 has gifted the suit schedule property to his wife. She further denied a suggestion that the 1st defendant is the owner of the suit schedule property and the plaintiff is not entitled for any relief.
19.PW1 is also cross examined by the counsel for the 3rd defendant on 30.07.2010 in which, she has stated that the husband of D2 has previously married one Jyothi who died in the year, 1990 and after the death of said
Jyoti, the deceased Ramachandra Chary married D2 and the 1st wife of the deceased Ramachandra Chary had a daughter by name Dhatrishree who is aged 23 years old and she is not added as a party in the suit. She nextly admitted that her motherinlaw bequeathed 80 Sq.Yds of property along with three (3) shops apart from open house under Ex.A3. She also admitted that her mother inlaw executed a registered gift deed on 07.05.1982 in favour of the 3rd defendant conveying the right to use the first floor (ground floor and terrace) together with all rights.
20.In her cross examination on behalf of D3, PW1 has admitted that her father inlaw did not have any right to alienate the suit schedule property.
She nextly admitted that her marriage was originally fixed on 06.02.1989, but it was postponed to 18.02.1989 due to death of B. Jyoti who is the wife of B. Ramachandra Chary and a paper advertisement was also given and after the death of Jyoti who is the 1st wife of B. Ramachandra Chary, they 46 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 shifted to Warasiguda from Chikkadpally.
21.PW1 has admitted Ex.B1 which is the plan showing the suit schedule property house bearing No. 11213 situated at Chikkadpally, and admitted that room Nos. 4 and 5, shop Nos. 8 to 10 and out house, and tht there is passage. She further admitted that the 1st defendant has modified the outhouse clubbing with room Nos. 4 to 6 and common passage, demolishing the walls without obtaining their consent. She has also admitted that the 7th defendant Dhatrishree is born to Ramachandra Chary and B. Jyothi out of their wedlock. She has also stated that the suit schedule property was mortgaged by D1 with United Bank and gifted the property to his wife. She nextly stated that herself and Nagarajamani posted notes on the walls of the suit schedule property that it is in court cases under these two suits. She further admitted that in Ex.B1(a), the affected portion in the road widening is shown and after construction of new building Smt. Nagarajamani inducted defendants 12 to 14 in O.S.No.
1854/2007 as tenants. She stated that the 1st defendant has no exclusive rights to gift 102 Sq.Yds and 179 Sq.Yds in favour his wife Nagamani and also portion of terrace rights to her in an extent of 288 Sq.Ft. PW1 also admitted Ex.B2 which is the photograph showing the old building of the suit schedule property, Exs.B3 and B4 showing the photographs about the demolition work undertaken in the suit schedule property by Nagamani,
Ex.B5 to B6 which are photographs showing the newly constructed building over the suit schedule property with the shops leased out to new tenants or defendants 12 to 14 and Ex.B17 which is C.D. containing the photos under Ex.B2 to B16. She admitted that the defendant No.12 in
O.S.No.1852/2007 is paying a monthly rent of Rs. 30,000/ to Nagamani
47 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 and has paid a sum of Rs. 12,00,000/ as security deposit. She further admitted in her cross examination at Page 6 of the typed copy as under: “There is a tenant in the first floor newly constructed building over S.S.P. and the said tenant is defendant No.13 in
O.S.No. 1854/2007 is paying a rent of Rs. 6,000/ per month to
Smt.Nagamani and the said tenant paid a sum of Rs. 2.00 lakhs to
Nagamani towards interest free security deposit. It is true that the said Nagamani was inducted a tenant by name B. Laxman Rao who is defendant No.14 in O.S.No.1854/2007 and he is paying a monthly rent of Rs. 4,000/ per month to Nagamani and the said tenant has also paid a sum of Rs. 1,50,000/ towards security deposit to Nagamani. There is another tenant inducted by
Nagamani in the 1 st floor who is doing real estate consultancy business and the said tenant is paying a sum of Rs. 5,000/ per month to Nagamani and he also paid a sum of Rs. 50,000/ towards security deposit to Nagamani.
Smt. Nagamani has no right to induct the tenants receiving rents from them and to receive security deposit amounts without the consent of coowners. It is true that Smt. Jayasri is only daughter to Smt. Saraswathi and Dharma Linga Chary. It is true that my motherinlaw in her registered Will made clear that after death of her husband the property alloted to him shall be shared by her children.
22.PW1 in her cross examination on behalf of the 7th defendant has admitted that the 7th defendant is the daughter of B. Ramachandra Chary and B. Jyothi and that B. Ramachandra Chary married Smt. Nagarajamani who is also elder sister of PW1 and after the demise of Smt. Jyoti, 7th defendant is brought up by Ramanuja Chary who has no issues. She nextly stated that Ramanuja Chary has no issues and Ramachandra Chary 48 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 used to visit Visakhapatjnam to see her daughter Dhatrishree and he used to stay for two to three months and Nagarajamani alone is receiving rents derived from the property belonging to Ramachandra Chary and after the death of Ramachandra Chary the relatives of Dhatrishree came and requested the 2nd defendant to give her share in the suit schedule property and also the other properties of Ramachandra Chary.
23.DW1 is the wife of 1st defendant in O.S.No. 2152/2006 and she testified in her chief evidence affidavit to the contents of the written statement filed by the 1st defendant. She has testified that her fatherin law late Dharmalingachary during his life time has partitioned the suit schedule property orally between this three sons and had given shop No.9 to late B. Ramachandra Chary, shop No.1 to the plaintiff in
O.S.No.2152/2006 and her fatherinlaw has given his remaining portion
of the property to her husband (1st defendant in O.S.No.2152/2006) and they are enjoying the said portions given by her father inlaw. She further claimed that Smt. Jayasree who is the daughter of Dharmalingachary is not entitled for any relief and the suit filed by her in O.S.No.1854/2007 is liable to be dismissed.
24.In her cross examination on behalf of the plaintiff in
O.S.No.2152/2006, DW1 has denied a suggestion that according to the
Will, (Ex.A1 and A3), her fatherinlaw Dharmalingachary is not having ownership rights over the suit schedule property, but admitted that her motherinlaw has not given ownership rights to her husband (Dharmalingachary) in respect of the suit schedule property and he is having only life time interest. She further admitted that she has not filed 49 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the gift deed executed by her husband in her favour and that in the road widening, portion of the suit schedule property was taken up by the
GHMC. In her further cross examination, at pages 2 to 5 of the typed copy,
Dw1 had admitted as under: “Myself and my husband made necessary charges to the
S.S.P after demolition by GHMC. After that we letout the premises to the tenants i.e., two tenants in the ground floor and in the 1 st floor 3 tenants to do their businesses. We are taking rents from the tenants. In the ground floor I am getting a rent of
Rs. 20,000/ per month and in the first floor I am getting Rs.
10,000/ per month. In the ground floor the tenants are Laxman
Das and Ram Das. In the first floor, Nagaraju, one Muslim person and Laxman Das. I received Rs. 9.00 lakhs from ground floor tenant as security deposit and another tenant gave Rs.
50,000/ as deposit. In the first floor one Nagaraju gave security deposit of Rs. 50,000/.
It is true that the registered gift deed executed by my husband on 19.10.2002 in my favour clearly shows that the SSP belongs to 3 brothers. It is not true to suggest that all the three brothers have equal rights over the rents derived from the tenants and it should be distributed among them.
I am in possession of original gift deed executed by my husband in my favour. I am not going to file the original gift deed into the court.
The xerox copy of registered gift settlement deed is confronted to the witness vide Document No.2862/2002 dated 19.10.2002 and the same is admitted by her and marked as
Ex.B18.
My husband will not come and depose in this case as 50 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 witness. I am also deposing on his behalf. It is not true to suggest that the plaintiff and defendants 2 to 6 are also having equal rights in the SSP and they are also entitled for share in the rents which are deriving out of SSP. The defendant No.6 impleaded in the present suit and she filed a separate suit vide
O.S.No.1854/2007 on the file of XVII Senior Civil Judge, CCC,
Hyderabad and the same is clubbed with the present suit. It is true that the GHMC officials deposited the compensation amount into the court with regard to the SSP due to the disputes are going on in between us.
My husband has signed the written statement and Addl.
Written statement in O.S.No.2152/2006. I am aware of the contents of W.S. and Addl. W.S. filed by defendant No.1. My motherinlaw name is Dr. Saraswathi. It is true that the SSP is owned by Dr. Saraswati, B. Dharma Linga Chari is the husband of Dr. Saraswathi. They blessed with three sons an don daughter.
They are Siddartha, Chandra Shekar, Ramachandra Chari and daughter name is K. Jayashree.
I have not gone through the W.S. filed by defendant No.3.
I am not going to examine any other witnesses in the suits. I am giving evidence in this case on behalf of my husband Siddhartha and also based on my personal knowledge. It is true that my mother inlaw was the owner of property at Chikkadpally measuring 672 Sq.Yds. It is true that the road side facing property is commercial property and rear side there are residential portions. My motherinlaw was a childrens’ specialist
I am not fully aware as to whether Ramachandra Chari was married to one Jyothi before marrying to Nagarajamani. It is true that on 10.10.1981, my mother inlaw executed a registered will in respect of properties owned by her. It is true that my motherinlaw has annexed a sketch plan to the Will. It is true that the said sketch plan shows the details of rooms, shops 51 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 etc., as detailed in the Will. I have gone through the contents of said Will and I am aware about the same. I am in possession of the original Will. It is true that the original title deeds of the property owned by my motherinlaw under the said registered
Will.
I am not aware whether my mother inlaw as to subsequent to the execution of registered Will has executed a registered gift deed in favour of her daughter Jayashree. I have gone through the contents of registered gift deed filed in the case.”
25.DW1 has also been cross examined by the counsel for D3 in which she admitted that late Dharmalingachary did not execute any document in favour of her husband in respect of the property alloted to him under
Ex.A2. DW1 also admitted Ex.B1 (a) which is the entire sketch plan. She nextly admitted that she has not filed any documents to show that late
Dharmalingachary made debts amounting to Rs. 6,00,000/ and denied a suggestion that her husband has not paid the old debts of
Dharmalingachary in a sum of Rs.4 or Rs 5 lakhs. She stated that the rentals for shop No.9 was collected by Ramachandra Chary and after his demise, Nagarajamani used to collect and for shop No.9, rent was collected by Chandra Shekar and Vijay Bharathi while Shop No.8 they (DW1) used to collect the rents. She has admitted Ex.B19 which are the two registered gift deeds executed by her husband in her favour and further admitted that in the road widening an area of 38.17 Sq.Yds was lost and the name of
Siddhartha was never mutated in municipal records in respect of the properties covered under Ex.B18 and B19 or the name of
Dharmalingachary. She further admitted about the deposit of a sum of Rs.
52 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 14,38,876/ as compensation for the acquired land by the Government to the credit of the Chief Judge, City Civil Court, Hyderabad and denied a suggestion that Jayashree is having 1/4th share in the suit schedule property and in the compensation amount for the acquired land.
26.D.W.1 has also denied a suggestion in her crossexamination that she made illegal constructions over the suit schedule property and converted room Nos. 4 and 5 into single shop. She further denied a suggestion that
Ex.B18 and B19 are not binding upon Jayashree and that she is liable to demolish the illegal constructions and liable to remove the AC sheets and shed on the 1st floor and further denied that compensation amount is to be divided among three sons and Smt. Jayashree.
a)DW1 is also cross examined by the counsel for the defendant No.7 in which she admitted that herself and Nagarajamani entered into the court hall together and have a cordial relation with each other and that there is an understanding between herself and Nagarajamani with regard to the suit schedule property. Dw1 stated that, she doesn’t know whether the 7th defendant in the suit is the daughter of B. Ramachandra Chary through his first wife. She further stated that B. Ramachandra Chary is her 2nd brother inlaw and the 1st defendant is her husband. She also admitted Ex.B20 which is the paper publication dated 07.02.1989, but added that they have not given any such paper publication. DW1 admitted about Ex.B21 which are 11 photographs showing B. Ramachanadra Chary, Datrishree who is the defendant No.7 and daughter of B. Ramachandra Chary, Jyothi,
Jayashree and fatherinlaw and also her husband Siddhartha. She nextly 53 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 admitted Ex.B22 which is the birth certificate dated 27.10.2007 issued by the GHMC containing the house No. 11213, Viveknagar, Chikkadpally,
Hyderabad, which is the suit schedule property and stated that the names and particulars mentioned therein are true and correct. She further stated that she doesn’t know whether the 7th defendant is entitled for half share in the property alloted to Ramachandra Chary. DW1 denied a suggestion that she is deposing false in collusion with Nagarajamani to avoid the share of the 7th defendant in the property of Ramachandra Chary.
27.DW2 (wrongly mentioned as DW3 due to inadvertance), is the plaintiff in O.S.No. 1854/2007. In her chief evidence affidavit she has testified to the contents of the plaint averments in the suit filed by her.
She has marked Ex.B23 which is the certified copy of the sale deed dated 25.05.1953 in the name of her mother B. Saraswathi, Ex.B24 which is the certified copy of the registered Will dated 10.10.1981 (already marked as
Ex.A2 and A3), Ex.B25 and B26 are the death certificates of her parents namely B. Saraswathi and B. Dharmalaingachary and Ex.B27 is the market value certificate of the suit schedule property.
28.In her cross examination on behalf of the plaintiff in O.S.No.
2152/2006, DW2 described as DW3 (plaintiff in O.S.No.1854/2007) has stated that her marriage took place in the year, 1966 and performed by her parents at Hyderabad, her mother passed away in the year, 1983 and her father passed away in the year, 1987. She denied a suggestion that she is not entitled for any share in the suit schedule property and that the suit filed by her in O.S.No.1854/2007 is not maintainable.
54 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
29.In her cross examination, DW1 on behalf of the 7th defendant has admitted that the 7th defendant is the daughter of B. Ramachandra Chary through his first wife and after the death of the mother of the defendant
No.7, B. Ramachandra Chary married Nagarajamani without informing them and that the 7th defendant is entitled for half share in the share of late B. Ramachandra Chary in respect of the suit schedule property. Dw2 (DW3) has further stated that B. Nagarajamani played fraud in collusion with the 1st defendant to avoid the share of defendant No.7.
30.DW2 in her cross examination on behalf of the defendant Nos. 1, 11 to 14 has stated that at the time of her marriage, she was 14 years and her brothers were quite young and that her husband was working as Associate
Lecturer at Madras at the time of her marriage. She further stated that the property which was given to her was 600 Sq.Yds of plot at Dondaparthi area of Visakhapatnam. She further stated that in her cross examination as under: “According to Will, I got properties i.e., 1 Shop, land at
Alwal admeasuring 800 Sq.Yds and my mother gave me terrace rights over the residential portion by way of gift.
At the time of filing of the suit, the violet, colour portion and red colour portion in Ex.B1 is the suit schedule property.
It is true that after the death of our father, my brothers, occupied the shop Nos. 8, 9 and 10 illegally. Witness adds that the rear side of the shops were also occupied by defendants 1 and 3. It is not true to suggest that when our father was on death bed he orally informed to my all brothers i.e., defendants 12, 2 and Ramachandra Chari to occupy the shop Nos. 8, 9 and 10.
55 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
It is not true to suggest that the space adjacent to room
Nos. 4 and 5 towards East and West of the suit house should go to Siddartha specifically and that the right of usage of well adjacent to the shops will be that of all the three sons and husband. Witness adds that my mother gave me all the rights in respect of the passage in the property owned by her and the same is clearly described in the registered gift deed.
It is true that the above mentioned my statement is not reflected in the registered Will. My mother has not executed any codicil to the registered Will during her life time. It is not true to suggest that the registered gift deed executed by my mother is not binding on Siddartha and Nagamani.
It is true that financially and educationally my three brothers were lesser than me. It is not true to suggest that keeping in view of my financial and educational capability my father gave rights in the suit schedule property to defendants1, 2 and Ramachandra Chari. It is not true to suggest that the defendant Nos. 1, 2 and Ramachandra Chari offered to sell the suit schedule property to me. Siddartha and Nagamani only have offered to sell their share to me after two years of death of my father. It is not true to suggest that the rents mentioned by me in the plaint are exaggerated and in reality there is no such rents in the locality. It is true that during the life time of my mother she had given the shops on rent for Rs. 100/ and odd.
It is not true to suggest that Siddartha i.e., defendant No.1 has taken so much of risk to got it vacated the tenants by spending huge amounts. It is not true to suggest that after the road widening programme the left over land is of no use as the extent has reduced drastically. It is not true to suggest that whatever the land is remained after road widening was away in setback.” 56 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
31.Having regard to the material on record including the oral and documentary evidence as discussed above, the undisputed facts that would emerge from the record are that originally B. Saraswathi who is the mother of the plaintiffs in O.S.No.2152/2006 and O.S.No.1854/2007 was the absoluteowner of the suit schedule property covered under both the suits and other properties which are bequeathed by her by way of a Will under the original of Ex.A2 (also marked as Exs. A3 and B24 bearing Doc. No.
29/1981, dated 10.10.1981). It is also not disputed that Smt. Dr.B.
Saraswathi wife of Dharmalingachary has died on 15.02.1983 and Ex.B25 is her death certificate. It is also not disputed that the husband of Dr. B.
Saraswathi by name B. Dharmalingachary has died on 25.10.1987 and
Ex.B26 is his death certificate.
a)The plaintiff in O.S.No.1854/2007 has claimed that the suit schedule property has become the joint family property after the death of her father as he was given only the right of enjoyment during his life time and after his death, the said property is liable for partition among the children of Dr.
B. Saraswathi and B. Dharmalingachary but the defendants 1 and 2 are not partitioning the suit schedule property and the defendants have raised illegal constructions on the suit schedule property including the staircase and encroached the common passage and wall and therefore she has sought various reliefs in the suit.
b)It is significant to notice that the plaintiff in O.S.No. 1854/2007 (DW2) sought for a share in the suit schedule property on the basis of
Ex.A2, A3 and A4 which are the certified copies of the very same registered 57 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 will executed by her mother Dr. B. Saraswathi on 10.10.1981.
32.The plaintiff in O.S.No.2152/2006 who is one of the sons of Dr. B.
Saraswathi and B. Darmalingachary also laid his claim for partition of the suit schedule property on the basis of the said registered will deed executed by his mother whose certified copies are marked as Exs.A2, A3 and B24.
33.It is thus evident that the entire crux of the controversy involved in these two suits revolve around the recitals of the said registered Will Deed executed by Dr. B. Saraswathi dated 10.10.1981 and the relevant clauses therein are enumerated, hereunder for better appreciation of the dispute involved in these two suits. The contents of the said will read thus:
“IV. Whereas I have taken into consideration of the marriage performed and yet to be performed, the Education, previous settlements and expenditure incurred and to be incurred for my four issues, the commitments like dues and taxes I have to meet, now I consider the following arrangements are equitable and just.
V. I do hereby settle the aforesaid properties income etc., on my four children, Husband and servant maid as follows:
i). In respect of the residential building bearing Municipal
No. 11213, with 8 rooms Nos. 1 to 8 marked in the plans:
Room No.1 ( 10 x 12) should be taken by my husband
Sri B. Dharmalingachari. After his demise it should go to
B. Ramachandrachari.
Room No.2 (10 x 12) and room No.7 (10 x 10) should be taken by my third son B. Ramachandrachari.
Room No.3 (10 x 12) and Room No.8 (12 x 16) should be 58 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 taken by my second son D. Chandrasekhar, and Room No.4 (10 x 14), room No.5, (10 x 10), and room No.6 ( 10 x 8 ) should be taken by my eldest son B. Siddartha.
The staircase by the side of Room No.7 and the Bath room below it and the open space should go to B. Ramachandrachari and be used by him.
The varandah flanked by rooms 8, 4 and 6 are commonly used by the two sons B. Siddartha & Chandra Sekhar.
The stair case by the side of rooms 1 and 2 be used by
Ramachandrachari, Chandrasekhar and Dharmalingachari. The room below the stair case go to B. Ramachandrachari.
When staircase is constructed for the first floor on mulgies, the room under the stair case should be taken by B.
Ramachandrachari. The space adjacent to room Nos. 4 and 5 towards East and West of the outhouse should go to
B. Siddhartha.
The right of usage of the passages surrounding the house and the right of usage of Well adjacent to the shops will be with all the three sons and husband.
(ii) In respect of the shops mentioned; (1). Shop No.2 I now being occupied by the Bamboob merchant
Sri P. Laxmaiah, and shop No.2 now being occupied by Tailors “Sky Way Tailors” should go to my third son
B. Ramanachandrachari.
(2). Shop No.3 and shop No.4 now being occupied by
M/s. Bhavani Silk House, should go to my second son
B. Chandrasekhar.
59 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 (3). Shop No.5 occupied by P.B. Silk Palace (Gents Textiles) shop
No.6 now being occupied by Sri Vithal and brothers (Satyanarayuana Vsthralayam) should go to my first son
Siddhartha.
(4). Shop No.7 now being occupied by Sri Prakash and Srinivas
Partners (Parkash Textiles) should go to my daughter Smt. K.
Jayasree.
As per the arrangements, aforesaid properties shall be enjoyed by the heirs absolutely with full rights of ownership.
VI. The three small shops numbered No.8 (occupied by Orient
Watch Repairing Centre) No.9 (occupied by Orient tin Steel
Repairing Centre) and No.10 (occupied by Prabhakar Ghee
Stores), and the Outhouse behind these shops marked B, and the open space adjacent to it and behind the small shops, earmarked for two big mulgies already sanctioned, shall be taken by my husband Sri B. Dharmalingachari. He will be the rightful owner for the usufruct (rent etc.,) income from the constructions on the said area for his life. If two proposed and sanctioned mulgies are constructed thereon, the usufruct from the two mulgies shall be enjoyed by him till the and of his life.
VII. From income out of the property mentioned in (VI) Rs. 75/ per month be given to Smt. T. Rajya Lakshmi, servant maid, as pension till end of her life, if she serves faithfully me and my husband till our demise, as consideration for the faithful services she would be rendering.
VIII. The fourth small mulgi No.11 now being occupied unauthorizedly by Sandhya Dhobis shall be demolished as per the 60 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 requirements of the Municipal Corporation of Hyderabad and the open space shall be used by B. Ramachandrachari.
34.Thus, from the aforesaid recitals of the will deed dated 10.10.1981, the executor Dr. B. Saraswathi has never permitted her husband B.
Darmalingachary to use the passage surrounding the house in her bequeath relating to shop Nos. 8, 9 and 10 and therefore after the death of
Dharmalingachary the said property is available for partition.
a) The 1st defendant in O.S.No. 2152/2006 has claimed that his father
B. Dharmalingachary out of love and affection has orally gifted the suit schedule property to him and he (first defendant) has paid the old debts of Rs. 6,00,000/ of late B. Darmalingachary and also paid another sum of
Rs. 4,00,000/ towards maintenance and development of the suit schedule property. However, for the reasons best known to him, the 1st defendant did not enter into the witness box to substantiate his claim in this regard and DW1 who is the wife of the 1st defendant in her cross examination has admitted that they have not filed any documentary proof to show that her husband has paid the debts of Rs. 6,00,000/ of Dharmalingachary and spent Rs. 4,00,000/ towards maintenance and development of the property. Moreover, there is also no satisfactory proof adduced by the 1st defendant to demonstrate and establish the oral gift of the suit schedule property in O.S.No.2152/2006 in his favour by Dharmalingachary, in the light of PW1 and PW2 categorically denying this aspect of the matter.
Therefore, from a careful perusal of the entire material on record including the recitals of Ex.A1, A2, A3 and B24 it is evident that the suit schedule property (in O.S.No.2152/2006) after the death of Dharmalingachary 61 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 remained without any bequeath as there is no further reference made by
Dr.B. Saraswathi as to the mode of disposal of the said property after the death of her husband B. Dharmalingachary. As a sequel thereof, the said property for all purposes devolved upon the children of Dr. B. Saraswathi and B. Darmalingachary who are their legal heirs, subject to their entitlement in accordance with law.
35.At this stage, the crucial point that has to be adjudicated is whether the plaintiff in O.S.No.1854/2007 is entitled for partition of the suit schedule property and the other reliefs claimed by her in the said suit. It is apparent from the admissions of the plaintiff in O.S.No.1854/2007 as DW2 in her cross examination that her marriage took place in the year, 1966 and her mother passed away in the year, 1983 and her father passed away in the year, 1987.
a)The right of a Hindu daughter to claim share in the property of her parents prior to the Central Amendment Act 39 of 2005 brought in the year 2005 to the Hindu Succession Act, was in accordance with Section 29A of the Hindu Succession (A.P. Amendment Act 13 of 1986) as held by the
Hon’ble High Court of Judicature at Hyderabad in a decision reported in
DAKA AUDEMMA Vs. INAGANTI VENKATESWARA REDDY AND OTHERS, {2017 (1) ALT 164}, in which it is held that when the marriage of a female took place prior to the commencement of the Hindu Succession A.P.
Amendment Act, which came into force on 05.09.1985, she does not have any right to claim share in the said property and the Hindu Succession
Amendment Act No. 39 of 2005 which is the Central Amendment does 62 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 apply to the case of the plaintiff as it cannot be given retrospect effect to a female to claim right in the property as coparcener in view of the decision of the Hon’ble Supreme Court reported in PRAKASH AND OTHERS VS.
PHULVATI AND OTHERS {2015 (6) ALT 34 SC}. The relevant observations of the Hon’ble High Court in the decision of DAKA AUDEMMA are in para Nos.25 and 26 which are extracted as under:
Para 25:
One of the requirements to claim share by a daughter of
Hindu, who became coparcener after passing of the Act, is that her marriage must have taken place after the commencement of amended Hindu Succession Act. In the present case, the marriage of the plaintiff has taken place prior to the commencement of the Hindu Succession (Andhra Pradesh)
Amendment) Act 13 of 1986. Hence, she is not entitled to claim right in the property as a coparcener. Both the trial court and the Appellate Court recorded a concurrent finding that the marriage of the plaintiff had taken place much prior to the date fixed under SubSection IV of Section 29A of the Act 13 of 1986. Therefore, the finding recorded by the trial court, affirmed by the appellate court cannot be disturbed while exercising power under Section 100 of CPC as it is limited to substantial question of law. If the date of marriage of the plaintiff as held by both the trial court and the appellate court is accepted, she is not entitled to claim benefit under Section 29A of the amended Act 13 of 1986, but taking advantage of subsequent Central Amendment to Hindu Succession Act i.e.,
Act 39 of 2005, she is contended that she is entitled to a share in the coparcenary property.
Para 26:
By the date of devolution of property on 1 st defendant, the plaintiff was not a coparcener. But by virtue of amended 63 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
Act 13 of 1986 she became entitled to right subject to satisfying the conditions laid down in Section 29A of the Act. To claim share in the coparcenary property, the nature of property held by 1 st defendant is in dispute. At this stage, it is not relevant to decide the nature of property since it is covered by 2 nd substantial question of law.”
36.The Hon’ble Supreme Court in the decision reported in PRAKASH
AND OTHERS VS. PHULVATHI’S case (cited supra) in para No.23 has categorically held that the Hindu Succession Amendment Act No.39/2005 (brought to the Hindu Succession Act, 1956) is only prospective in operation and the rights under the said amendment are applicable to the living daughter of a living coparcener as on 09.09.2005 irrespective when such daughters are born. The observations in para Nos. 22 and 23 of the said judgment of the Hon’ble Supreme Court in this regard, are extracted as under:
Para 22:
In this background, we find that the proviso to Section 6 (1) and Subsection (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20 th December, 2004 on which ate the Bill was introduced.
Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20 th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced.
Main provision of the Amendment in Section 6 (1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by 64 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 the appellants are not intended to be done away with for period prior to 20 th December, 2004. In no case statutory notional partition even after 20 th December, 2004 could be covered by the explanation or the proviso in question.
Para 23:
Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9 th
September, 2005 irrespective of when such daughters are born.
Disposition or alienation including partitions which may have taken place before 20 th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the explanation.
37.Thus, in view of the legal position enumerated above, it is necessary to refer to the case of the plaintiff in O.S.No. 1854/2007 on the touchstone of the observations made in the aforesaid decision. The factual matrix in this case would depict that the plaintiff in this suit claimed that she was in possession of the property which was gifted to her by her mother through registered gift deed on 15.05.1982 and also the shop No.7 which is gifted to her by her mother under the will under Ex.A2 and A3 and B24. She further claimed that the defendants 1 and 2 have demolished shop No.8 and using the said shop area as passage for the rear side portion by the defendant No.8. She has also claimed that the execution of the gift settlement deed bearing Doc. No.2395/1999, dated 04.10.1999 delivering northern portion of the house property by B. Siddhartha in favour of his wife (DW1) for 102 Sq.Yds is not proper as he has no such right. Further, the plaintiff in O.S.No.1854/2007 has claimed that the gift deed bearing
Doc. No. 2862/2002 dated 19.10.2002 executed by the 1st defendant 65 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 gifting the northern portion of house property covered by Municipal No.
101213 partitioning 179 Sq.Yds is not his property as he has no exclusive right over the same since the said property belongs to the plaintiff, defendants 1 and 2 and the legal heirs of B. Ramachandra Chary who are defendants 3 to 7. The plaintiff in this suit also claimed that another gift document No.550/1982, dated 15.05.1982 executed by the 1st defendant on the portion of terrace rights is not valid and further sought the mandatory injunction for directing the defendant No.11 to demolish the illegal constructions and for depositing of rents by the defendants 8 to 10 and 12 to 14.
38.However, as seen from the admissions of the plaintiff in O.S.No.
1854/2007 as D.W.2 and in the light of the legal position as enumerated above, the plaintiff in the suit whose marriage has been performed in the year, 1966 and whose father passed away on 25.10.1987 and whose mother passed away on 15.02.1983, cannot claim any partition of the suit schedule property as neither the amended provisions of Hindu Succession
A.P. Amendment Act 13/1986 or the amended provisions of the Hindu
Succession Act No.39/2005 are applicable to her case so as to claim any share in the suit schedule property, after the death of her father and mother respectively, in view of the ratio laid down in PRAKASH Vs.
PHULVATI’s case. Therefore, in the absence of the plaintiff placing any material on record to show her entitlement of a share in the suit schedule property, this court holds that the plaintiff in O.S.No. 1854/2007 is not entitled for the relief claimed in the suit.
39.The 7th defendant in O.S.No.2152/2006 has asserted that she is the 66 Common Judgment in O.S.Nos.2152/2006 & 1854/2007 daughter of B. Ramachandra Chary and she is also entitled for 1/8th share in the suit schedule property. In the cross examination of PW1 and DW2, they have categorically admitted that the 7th defendant is the daughter of
Ramachandra Chary and B. Jyothi. PW1 is none other than the own younger sister of the 2nd defendant B. Nagarajamani and she has categorically admitted in her cross examination that the 7th defendant is the daughter of B. Ramachandra Chary and B. Jyothi and after the death of
B. Jyoti, B.Ramachandra Chary has married the 2nd defendant. There is no contrary material available on record worth the salt to contradict or dispute this aspect of the matter. Therefore, in the absence of any rebuttal evidence to the contrary on this aspect, the 7th defendant is also entitled for a share along with the second defendant and her children in the suit schedule property in O.S.No. 2152/2006 in the share of her father late B.
Ramachandra Chary.
40.It is admitted by PW1 in O.S.No.2152/2006 who is the wife of the plaintiff in the said suit that the 1st defendant has no exclusive right to execute the gift deeds in favour of his wife Nagamani (DW1) in respect of the suit schedule property and the common passage as the said property is owned by the plaintiff in O.S.No. 2152/2006, and legal heirs of B.
Ramachandra Chary and Siddhartha.
41.The case of the plaintiff in O.S.No.2152/2006 is that the suit schedule property became 42.2 Sq.Yds after acquisition of a portion by the
GHMC which is also admitted by Dws1 and 2. However, as the plaintiff in the suit has proved that the suit schedule property is liable for partition as it became the joint family property after the death of his father B.
67 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
Darmalingachary, the said property is liable to be partitioned into three equal shares out of which the plaintiff is entitled for 1/3rd share and the 1st defendant is entitled for 1/3rd share and the defendants 2 to 5 and 7 who are the legal heirs of B. Ramachandra Chary are equally entitled for the 1/3rd share of late B. Ramachandra Chary These issues are answered accordingly.
42.Having regard to the aforesaid discussion and in the light of the legal position as enumerated above, this court holds that the plaintiff in O.S.No.
1854/2007 is not entitled for the relief claimed in the suit and the said suit is liable to be dismissed.
43.Issue No.3 in O.S.No.2152 of 2006 :In the result, O.S.No.
2152/2006 is decreed with costs by passing a preliminary decree by declaring that the suit schedule property is liable for partition into three (3) equal shares, and the plaintiff is entitled for one such share, the defendant No.1 is entitled for one such share and the defendants 2 to 5 and 7 are also entitled for one such share together equally being the legal heirs of late B. Ramachandra Chary. The 6th defendant is not entitled for any share in the suit schedule property.
43. Issue No.4 in O.S.No.1854 of 2007: In the result, O.S.No.
1854/2007 is dismissed with costs.
Dictated to Personal Assistant, transcribed and typed by him, corrected
and pronounced by me in the open Court on this the 11 th day of February, 2019.
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
68 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:FOR DEFENDANTS:
PW1: B. Vijay BharthiDW1: B. Nagamani DW2: K. Jayashree
FOR PLAINTIFFS:
Ex.A1: Market Value Certificate of the suit schedule property
Ex.A2 : Certified copy of the Will bearing Doc. No.29/1981
Ex.A3 Registered Will Deed bearing Doc. No.29/1981, dated 10.10.1981
FOR DEFENDANTS:
Ex.B1: Plan showing the suit schedule property
EX.B1(a). Plan showing the portion affected in road widening.
Ex.B2: Photograph showing the old building of suit schedule property
Ex.B3 and Ex.B4 are the photographs showing the demolition work in the suit schedule property undertaken by Smt. P. Nagamani
Ex.B5 to Ex.B16 are the photographs are showing the newly constructed building over suit schedule property with the shops leased out to new tenants i.e., defendants 12 to 14.
Ex.B17: CD pertaining to the photographs i.e., Exs.B2 to B16.
Ex.B18: Xerox copy of the registered Gift Settlement Deed
dated 19.10.2002 bearing Doc. No.2862/2002
Ex.B19: True copy of the registered Gift Settlement Deed
dated 04.10.1999 bearing Doc. No.2395/1999
Ex.B20: Paper publication dated 07.02.1989
Ex.B21: Photographs (11 in Nos.)
Ex.B22: Birth certificate dated 27.10.2007 issued by the GHMC
Ex.B23: Certified copy of the Sale Deed dated 25.05.1953
Ex.B24: Certified copy of the Registered Will dated 10.10.1981
Ex.B25: Death certificate of B. Saraswathi, dated 31.10.1987
Ex.B26: Death Certificate of B. Dharmalingachari, dated 28.06.2007 69 Common Judgment in O.S.Nos.2152/2006 & 1854/2007
Ex.B27: Market Value Certificate, dated 28.06.2007 issued by SubRegistrar, Chikkadpally
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
IN THE COURT OF THE XVII ADDL. SENIOR CIVIL JUDGE :
CITY CIVIL COURT : HYDERABAD
PRESENT : DR. S. SRINIVASA REDDY
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE.
DATED THIS THE 11 th DAY OF FEBRUARY, 2019
O.S.No. 1977 OF 2008
BETWEEN:
Miss B. Dhathri Shree
...Plaintiff
AND
1. K. Jayashree
2. B. Sidhardh
3. B. Chandra Sekhar
4. B. Nagarajamani
5. B. Raja Vinay Chandra
6. B. Shrividhya
7. B. Anand Sai
...Defendants
This suit coming for final hearing before me in the presence of Sri M.V.
Prasad, Counsel for Plaintiff and Sri S. Balchand, Counsel Defendant No.1, and of Sri Praveen Kumar, Counsel for Defendant No.3 and of Sri Madhava
Rao, Counsel for Defendant Nos. 4 to 7, and Defendant No.2 set exparte, and the matter having stood over till this day for consideration, this Court delivered the following:
: J U D G M E N T :
This suit is filed by the plaintiff seeking the following reliefs:
a). to pass judgment and decree for partition of suit schedule property i.e., room Nos. 1, 2 and 7 and Shop No. 1 and 2 into two equal shares and allot one such share i.e., 60.47 Sq.Yds., to the plaintiff;
b). to pass final decree and deliver exclusive possession of the allotted share to the plaintiff;
OS.NO. 1977 OF 2008 Page No.2
c). to appoint an advocate commissioner for partition the suit schedule property with meets and bounds;
d). to direct the defendants 4 to 7 to deposit mesne profits to the credit of the court account in respect of the different portions in their occupation as shown in the plan annexed hereto from the date of suit till the date of disposal of the suit and to pay fifty percent in the rent amount to the plaintiff;
e). to award costs of the suit.
2.The plaint schedule property is shown as under:
The property covered under Municipal No. 11213,, measuring 672 Sq.Yds situated at Chikkadpally, Musheerabad Mandal, Hyderabad and bounded as under:
East : CC Road to Mushirabad South : Road West : Property belongs to others North : 27’ Private Road
ITEM 3 (SHOP Nos.1 & 2)
The property covered under Municipal No. 11213, measuring 528 Sq.Mts equal to 58.72 Sq.Yds situated at Chikkadpally, Hyderabad and bounded as under:
East : Shop No.3 & 4 belongs to Defendant No.3 South : Municipal Road West : Open Land North : Verandah
3.The averments of the plaint for the purpose of adjudicating the issues involved in the suit are traced out as under:
Defendant No.1 is the paternal aunt of the plaintiff, defendants 2 and 3 are the paternal uncles, the defendant No.4 is the step mother of the plaintiff, defendant Nos. 5 and 7 are the step brothers and defendant No.6 is the sister
OS.NO. 1977 OF 2008 Page No.3
of the plaintiff. The father of the plaintiff i.e., late B. Ramachandrachari had remarried defendant No.4 after the death of the mother of the plaintiff and subsequently the father of the plaintiff died on 07.02.2006 leaving behind the plaintiff and the defendants 4 to 7 as his true legal heirs, who have succeeded to the properties left behind by the father of the plaintiff. Since the remarriage of her father, the plaintiff is residing with her maternal uncle to avoid the disturbances with her step mother at Visakhapatnam. Her paternal grand mother was the absolute owner and title holder of the suit schedule property bearing Municipal No. 11213 for an extent of 672 Sq.Yds situated at Chikkadpally, Hyderabad. The said suit schedule property was purchased by her paternal grand mother under a registered sale deed bearing Doc. No.
750/1953, dated 15.05.1953 and was registered in the office of the District
Registrar, Hyderabad. During the life time of her paternal grand mother by name Smt. B. Saraswathi, she has executed a registered will bearing Doc. No.
29/1981, dated 10.10.1981 registered in the office of the SubRegistrar,
Chikkadpally, Hyderabad bequeathing her properties in favour of her husband by name Sri B. Dharmalingachari (late) and her four children i.e,., defendants, 1, 2 and 3 and father of plaintiff. The paternal grand father of the plaintiff died on 25.10.1987 leaving behind the room No.1 of the property of the will, dated 10.10.1981 to the share of the father of the plaintiff. Till the death of the plaintiff’s father there were no disturbances in the plaintiffs’ family and the property was jointly enjoyed by both the plaintiffs and the defendants 4 to 7 along with the plaintiff’s father. But immediately after the death of the plaintiff’s father i.e., on 07.02.2006 the defendants 4 to 7 created unpleasant situations, environment and also the
OS.NO. 1977 OF 2008 Page No.4
step motherly attitude towards the plaintiff, with the best reasons known to them. With all fond hope, loving nature and with all expectations from her own family for affection, she waited for the days to change so that she can be accepted by one and all in the family with love, affection and care, but all proved futile and gone in vain. The plaintiff has repeatedly requested for mediation by the brothers and sister of the plaintiff’s father and partition the suit schedule properties as per the registered will of the late Smt. B.
Saraswati i.e., the paternal grandmother of the plaintiff. But to utter surprise, even they hesitated to come forward and rescue the plaintiff from her agony.
Observing the evasive attitude of the defendants and also their hesitation to proportionate the share of the father of the plaintiff, which was passed over as per Will, into two equal halves among the plaintiff and defendants 4 to 7, the plaintiff has approached all the defendants along with her natural maternal relatives and also along with village elders on 26.10.2008, but the defendants have as usual side stepped and escaping from the proportionate of shares. The plaintiff is entitled to the half share of the property of the plaintiff’s father, and that all the rents and mesne profits are presently being collected and enjoyed by the defendants 4 to 7 and used to send the rent collected to the plaintiff by way of money order. But for best reasons known to them, the defendants 4 to 7 had not remitted any rent to the plaintiff since
December, 2007. Hence this suit.
3.The 1st defendant has filed a written statement supporting the case of the plaintiff with the following averments, viz.,
The address of the defendants 2 and 3 as shown is not correct. The
OS.NO. 1977 OF 2008 Page No.5
defendant No.2 is a resident of House No. 11213, Vivek Nagar,
Chikkadpally, Hyderabad and defendant No.3 is a resident of House No. 31 642, Street No.4, Kakatiya Colony, L.B. Nagar, Hyderabad. It is true that defendant No.1 is paternal aunt of the plaintiff and defendants 2 and 3 are paternal uncles of the plaintiff. This defendant is the elder daughter of B.
Dharmalingachari and B. Saraswathi. Defendants 2, 3 and late B.
Ramachandrachari are her younger brothers. Late B. Ramachandrachari through his first wife Smt. Jyothi had one daughter by name Dhatrisri i.e., plaintiff herein, born on 26.05.1984 at Jaya Nursing Home, Narayanguda,
Hyderabad. After the death of Smt. Jyothi, late B.Ramachandrachari had married defendant No.4 and through her defendants 5 to 7 were born. It is true that late B.Ramachandrachari died on 07.02.2006 leaving behind plaintiff, defendants 4 to 7 as his legal heirs. After the death of Smt. Jyothi i.e., mother of plaintiff, plaintiff started residing with her maternal aunt at
Visakhapatnam. The mother of this defendant B. Saraswathi was absolute owner and possessor of property bearing Municipal No.11213 measuring 672 Sq.Yds situated at Chikkadpally, Hyderabad having purchased the same under registered sale deed bearing Doc. No. 70 of 1953 dated 15.05.1953 and the said document was registered in the office of District Registrar,
Hyderabad. There are shops facing south and eastern side of the above said property and from the southwest side of the said property there is an open area which leads to residential portion located on northwest side of the property. This defendant’s mother during her lifetime has executed a registered Will bearing Doc.No 29 of 1981 registered in the office of Sub
Registrar, Chikkadpally, Hyderabad bequeathing her property in favour of
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her husband by name Sri Dharmalingachari and her four children i.e., defendant Nos. 1 to 3 herein and late B. Ramchandrachari i.e., father of the plaintiff. Along with the said registered will, a sketch plan was also enclosed giving details of the bequest made therein. In terms of the said will, in property bearing Municipal No. 11213, Chikkadpally, Hyderabad, defendant No.1’s mother has bequeathed Room No.1 measuring 10x12 to her father B. Dharmalingachari and it was also stated in the will that after his demise the said room shall go to B. Ramachandrachari. Likewise, Room No.2 measuring 10x10 and Room No.7 measuring 10x10’6” was given to
B. Ramachandrachari. Room No.3 measuring 10x12 and Room No.8 measuring 12x16 was bequeathed to B. Chandrasekhar, Room No.6 measuring 10x8 was bequeathed to B. Siddhartha. There is a staircase by the side of Room No.7 and another staircase by the side of Room Nos. 1 and 2.
This defendant’s mother also bequeathed shop Nos.1 and 2 to late
Ramachahndrachari, shop Nos. 3 and 4 to B. Chandrasekhar and Shop Nos. 5 and 6 to B. Sidhartha and Shop No.7 to this defendant. Likewise, her mother bequeathed three small shops bearing Nos. 8, 9 and 10 and outhouse behind those shops along with open space measuring 75.8 Sq.Yds in favour of B.
Dharmalingachari. This defendant’s mother B. Saraswathi has executed a registered gift deed in her favour in respect of open terrace measuring 175 sq.yds covered by portion of premises bearing Municipal No. 11213, situated at Chikkadpally, Hyderabad. The said gift deed was registered as
Doc. No. 550/1982 in Book No.1, volume No.27 at Pages 354 to 357 in the office of the SubRegistrar, Chikkadpally, Hyderabad on 15.05.1982. Under the said gift deed, she was put in possession of the property and she is
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enjoying the same as absolute owner. Apart from the terrace rights, she has been given right and liberty to use the two staircases already in existence to reach the terrace of the said property. She was also given rights to use the well situated in the property for all purposes. This was at liberty to construct over head tank on the proposed first floor and the water from the well was to be used. B. Saraswathi died on 15.02.1983 and on her death, the bequests made by her in her registered will came in force. This defendant’s father B.
Dharmalingachari was enjoying the property bequeathed to him under the said will. This defendant’s father was given right to enjoy the property for the usufruct/income only, her after died on 25.10.1987 and since her mother did not make any provision for succession of the property which her mother did not make any provision for succession of the property which her father was enjoying and also as B. Siddhartha, B. Chandrasekhar and others have denied her share in the property, she was constrained to file suit for partition and separate possession in O.S.No. 1854/2007 on the file of V
Senior Civil Judge, City Civil Court, Hyderabad and the said suit is pending.
In respect of the subject matter of O.S.No.1854/2007, another partition suit is filed by defendant No.3 herein originally against defendant No.2 and 4 herein. In the said suit this defendant got herself impleaded as party defendant therein as her rights were being effected. Subsequent to execution of the will by her mother, she has executed registered gift deed in her favour conveying all that first floor (ground floor terrace) together with all rights, liberty, privileges, easements and appurtenance whatsoever to the said premises belonging or in anywhere appertaining or usually held or occupying therewith or reputed to belong or appurtenant thereto. The said gift deed
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made clear that this defendant can exercise all the rights over the well situated in the property by fixing electrical pump to draw the water to the premises that she may construct on the first floor and also draw water to the overhead tank. The said gift further made it clear that she has every right and liberty to use the staircase which already exists to reach the first floor. In view of the transfer or right by registered gift deed subsequent to the registered will, B. Siddhartha, B. Chandrasekhar and heirs of B.
Ramachandrachari will not have any right, title or interest over the terrace portion as referred above. To reach the stair case from the entrance of the house property, the way is from the open area in the common areas meant for usage by herself, B. Siddhartha, B. Chandrasekhar and legal heirs of B.
Ramachandrachari. The said common area is appurtenant to the property gifted to her and she has equal right for its usage and she also has undivided share in the land. B. Dharmalingachari, paternal grand father of the plaintiff died on 25.10.1997, on his death, as per the terms of the will, Room No.1 went to the enjoyment of the father of the plaintiff. After the death of father of the plaintiff, defendant No.4 created lot of problems and started disowning plaintiff as one of the legal heirs of late B. Ramachandrachari with malafide intention to usurp the property by herself and defendants 5 to 7. This defendant has all love and affection towards plaintiff and the plaintiff has equal right in her father’s share in the property. This defendant from her side has tried her best to mediate and settle the disputes between the plaintiff and defendants 4 to 7 but defendant No.1’s brother i.e., defendants 2 and 3 and her sister inlaw i.e., defendant No.4 did not cooperate in the matter and defendants 4 to 7 have denied plaintiff’s share in the property left by late B.
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Ramachandrachari. In the absence of any provision in the will for sharing the land area, the entire 672 Sq.Yds is to be shared by defendant No.1, defendant No.2, defendant No.3 and legal heirs of late B. Ramachandrachari equally i.e., each one of them will have equal undivided share of land measuring 168 Sq.Yds. The plaintiff along with defendants 4 to 7 have equal rights to be enjoyed in the allotments made by late Sri B. Saraswathi to B.
Ramachandrachari. On 26.05.2008, plaintiff along with her maternal uncle and other maternal relatives have approached defendants 2 to 7 to amicably settle the matter. In fact, on 26.05.2008, this defendant supported the plaintiff for her equal right in the allotments made by late B. Saraswathi, to her father B. Ramachandrachari. Plaintiff is entitled to her share in her father’s property. Allegation of the plaintiff that the rents and mesne profits are presently being collected and enjoyed by defendants 4 to 7 is correct.
The plaintiff is entitled to her share in the properties left by late B.
Ramachandrachari.
4.The 3rd defendant has also filed a separate written statement supporting the case of the plaintiff with the following averments:
The relations mentioned between the plaintiff and defendants are true.
It is true that the plaintiff’s father late B. Ramachandrachari had remarried to defendant No.4 after the death of the mother of the plaintiff and it is true that the father of the plaintiff died on 07.02.2006 leaving behind plaintiff and defendants 4 to 7 as his legal heirs who have succeeded to the properties left behind by the father of the plaintiff. It is true that the plaintiff is residing with the maternal aunt after the remarriage of her father. It is true that the
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plaintiff’s paternal grand mother was the absolute owner and title holder of the suit schedule property bearing H.No.11213, for an extent of 672 Sq.Yds, situated at Chikkadapalli, Hyderabad and it is true that the plaintiff’s paternal grand mother purchased the said property through registered Doc. No.
750/1953 dated 15.05.1953. It is true that during the life time of
Smt. B. Saraswathi, executed a registered WILL bearing Doc. No.29/1981
dated 10.10.1981 bequeathing her properties in favour of her husband late B.
Dharmalingachari and her four children i.e., defendant Nos.1, 2, 3 and father of plaintiff. It is true that in para V of the registered will dated 10.10.1981, the paternal grand mother of plaintiff has bequeathed the room Nos. 2 and 7 to the father of the plaintiff and also room No.1 to the paternal grand father of plaintiff. It is true that in the will it is mentioned that after the demise of the paternal grand father the same room No.1 will go to the father of plaintiff and also Shop No.1 and 2 were also proportioned in the share of the father of the plaintiff. It is true that the paternal grand father of the plaintiff died on 25.10.1987 leaving behind the room No.1 of the property of the will dated 10.10.1981 to the share of the father of the plaintiff. It is true that till the death of the plaintiff’s father there were no disturbances in the plaintiff’s family and the property was jointly enjoyed by both the plaintiff’s and defendants 4 to 7 along with the plaintiff’s father. It is true that after the death of plaintiff’s father the defendants 4 to 7 created unpleasant situations and also the step motherly attitude towards the plaintiff was also unpleasant.
It is true that the plaintiff repeatedly requested for mediation by the brothers and sister of the plaintiff’s father and partition of the suit schedule properties as per the registered will of late Smt. B. Saraswathi, but they hesitated to
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come forward and rescue the plaintiff from her agony. It is true that after observing the attitude of the defendants hesitation to proportionate the share of the father of the plaintiff into two equal halves among the plaintiff and defendants 4 to 7, the plaintiff has approached all the defendants along with her natural maternal relatives and also along with village elders on 26.10.2008. It is false to say that the plaintiff is entitled to the half share of the property of the plaintiff’s father. But she is entitled for 1/4th share and it is true that the rents and mesne profits are presently being collected and enjoyed by the defendants 4 to 7 and used to send the rent collected to the plaintiff by way of money order and it is true that the defendants 4 to 7 had not remitted any rent to the plaintiff since December, 2007. The plaintiff is entitled for the share as prayed for partition, separate possession and also for the mesne profits till the possession handed over to the plaintiff. This Court may pass a decree and judgment in favour of plaintiff as prayed by the plaintiff.
5.The 2nd defendant remained exparte.
6.The defendants 4 to 7 have filed a written statement and opposed the reliefs claimed by the plaintiff in the suit by contending as under:
Admittedly, the plaintiff is residing at Gajuwaka, Visakapatnam. These defendants are the only legal heirs of late B. Ramachandra Chary. The plaintiff and the defendants 1 to 3 with an intention to grab the property of the defendants 4 to 7 who are widow and minor children filed the present false suit. This defendant No.4 married late B. Ramachandra Chary on
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02.08.1990. The plaintiff never lived with these defendants from the beginning. These defendants alone are living in the suit property. The plaintiff is not the daughter of late B.Ramachandra Chary. The plaintiff is not the legal heir of late B.Ramachandra Chary. The plaintiff is not the legal heir of late B.Ramachandra Chary. Defendants 4 to 7 are the only legal heirs of late B. Ramachandra Chary. The plaintiff is not related to the defendants.
The contention that late B. Saraswati is the paternal grand mother of the plaintiff is absolutely false. It is true that mother inlaw of D4 and paternal grand mother of D5 to D7 was the absolute owner of premises bearing No. 1 1213, Chikkadpally, Hyderabad to the extent of 672 Sq.Yds. It is true late B.
Saraswati has executed a registered will dated 10.10.1981, but not the paternal grand mother of the plaintiff. The plaintiff is not entitled to any share in the suit property. It is true that late B. Saraswati the mother inlaw of D4 distributed the property to her husband and to her children under the said registered will. Late B. Saraswati was not the paternal grand mother of the plaintiff. B. Ramachandra Chary was not the father of the plaintiff. The plaintiff is not known to these defendants. It is true that late B.
Dharmalingachary died on 25.10.1987. The plaintiff is not the grand daughter of late B. Saraswati and the plaintiff is not the daughter of late B.
Ramachandra Chary. The plaintiff admits that she is not in possession of the suit property. Partition suit filed without possession, the court fee paid is not sufficient. The allegation that the plaintiff and D4 to D7 jointly enjoyed the property is categorically denied and false. There was no joint possession nor enjoyment with the plaintiff at any point of time. When the plaintiff is not residing in the suit property, the question of creating unpleasant situation
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does not arise. This D4 is not the step mother of the plaintiff. D4 to D7 are in exclusive possession and enjoyment of the suit property from the date of marriage of D4 i.e., from 02.08.1990 without any claim from any one. The allegation that the plaintiff has repeatedly requested for mediation by brother and sister is absolutely false and baseless. When the plaintiff not related to the defendants, the question of mediation does not arise. The defendant No.1 who filed cases against D4 to D7 and failed could not get the result, she is in collusion with the plaintiff filed the present false suit to grab the property.
The allegation that the plaintiff has approached all the defendants and relatives on 26.05.2008 is categorically denied and false. Nobody approached this D4 to D7 at any point of time. The plaintiff and the defendants 1 to 3 with an intention to grab the property filed present false suit. The birth certificate filed by the plaintiff does not belongs to B. Ramchandra Chari.
The D1 to D3 are made parties without seeking any relief against them. This clearly shows that the plaintiff and D1 to D3 are in collusion filed the present false suit and the same is liable to be dismissed.
7.On the basis of the pleadings, the following issues are settled for trial by this court on 16.07.2010 namely; 1). Whether the plaintiff is entitled to partition the suit schedule house property into two equal shares as sought for?
2). Whether plaintiff is entitle to mesne profits as sought by plaintiff?
3). To what relief?
8.To substantiate the case of the plaintiff, she got examined herself as PW1 and got marked Ex.A1 to A9. PWs 2 to 6 are also examined on behalf of the
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plaintiff. The 4th defendant examined herself as DW1 and got marked Exs.B1 to
B3 on her behalf.
9.Heard both sides and perused the record. Written arguments are filed on behalf of the plaintiff and on behalf of the defendants 4 to 7 which are taken on record.
10.Issue No.1: The case of the plaintiff which is evident from the plaint pleadings and the chief evidence affidavit of the plaintiff as PW1 is that the 1st defendant is the paternal aunt, the defendants 2 and 3 are the paternal uncles and the 4th defendant is the step mother of the plaintiff, while defendants 5 to 7 are the children of the 4th defendant. According to Pw1, her father late B.
Ramachandra Chary had remarried the 4th defendant after the death of the mother of the plaintiff/Pw1, and as he died on 07.02.2006, the plaintiff, and the defendants 4 to 7 have succeeded to the properties left by her father (which are shown in the schedule in the suit) are succeeded by the plaintiff and the defendants 4 to 7. PW1 also stated that after the remarriage of her father with the 4th defendant, she (plaintiff/PW1) is residing with her maternal aunt at
Visakhapatnam to avoid disturbances with her step mother. She also claimed that her grand mother who purchased the property bearing Municipal No. 11 213 in an extent of 672 Sq.Yds at Chikadpally, Hyderabad executed a registered
Will bearing No. 29/1981, dated 10.10.1981 bequeathing her properties in favour of her husband and her four (4) children and her paternal grand mother has bequeathed room Nos. 2 and 7 to the father of Pw1 and room no.1 will also go to the father of Pw1 after the death of the husband of her paternal grand mother Smt. B. Saraswati and her grand father died on 25.10.1987 but the
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defendants 4 to 7 have refused to partition the suit schedule property and falsely claiming that she is not the daughter of late B. Ramachandra Chary and denying the marriage of B. Ramachandra Chary with B. Jyothi who is the mother of the plaintiff.
11.PW1 has filed Ex.A1 which is the certified copy of the registered sale deed bearing Doc. No.750/1953, showing the purchase of the said property by B.
Saraswati, Ex.A1 which is the certified copy of the registered will deed Doc.
no.29/1981, dated 10.10.1981, Ex.A3 which is the birth certificate of PW1 showing that she is born to Ramachandra Chary and B. Jyothi on 26.05.1984,
Ex.A4 which is the Ration Card, Ex.A5 which is the paper publication in Eenadu
Telugu Daily Newspaper dated 07.02.1989 in which the death of the mother of
P.W.1 is mentioned due to which the marriage of defendant No.3 is postponed,
Ex.A6 is the letter addressed by the 4th defendant to the father of PW1, Ex.A7 is the letter addressed by her father to DW4, Ex.A8 is the death certificate of the mother of the plaintiff by name B. Jyothi to show that she died on 06.02.1989 and Ex.A9 are the photographs with negatives.
12.In her cross examination dated 01.02.2016, on behalf of the defendants 4 to 7, PW1 has stated as under:
“I studied MBA. Presently I am not working. I studied in
Visakhapatnam upto MBA, except LKG which I have studied in
Hyderabad. Presently, I am staying with my maternal uncle family
Chebrolu Ramanuja Chary. It is not true to suggest that I am staying in the house of Chebrolu Ramanuja Chary since my childhood. It is true that, I pursued my studies from 1 st class to MBA by staying in the house of
Chebrolu Ramanuja Chary. Witness adds that during holidays she used
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to visit her father at Hyderabad. It is not true to suggest that I am not the daughter of B. Rama Chandra Chary. I have not filed my education certificates in this suit. It is not true to suggest that I have not visited and not attended the funeral of B. Rama Chandra Chary. In school records my father’s name is recorded as Chebrolu Ramanuja Chary. Witness adds that the said Chebrolu Ramanuja Chary name is recorded as her guardian. I do not remember whether I have applied for ICET entrance examination during the year, 2009. It is true in my school records my name is recorded as Dhathri Shree Chebrolu. It is true I filed an impleading petition in the claim petition filed by D4 to D7 herein before the Railway Claims Tribunal, Secunderabad. It is true the said impleading petition was dismissed for nonprosecution. I have not taken any steps for restoration of my impleading petition. It is not true to suggest that I never visited Hyderabad an never stayed in the suit schedule property. It is not true to suggest that Ex.A4 is created by tampering it for the purpose of this suit. It is true there are some corrections in Ex.A4.
It is not true to suggest that I filed this false suit at the instigation of D1.
It is not true to suggest that D1 to D3 are misjoinder to the present suit as no relief is claimed against them in this suit. It is not true to suggest that I filed this false suit in collusion with D1 to D3 in order to grab the property of the D4 to D7.”
13.In her further cross examination on 25.02.2016, PW1 has stated that herself, Ramanuja Chary, his wife, his sister and aunt were residing in the house of Ramanujachary and the brothers and sister of ((PW1) are residing at
Hyderabad. She denied a suggestion that Ex.A6 and A7 are created by her and that the husband of the defendant No.4 never wrote the said letter. She admitted that Ramanujachari is the relative of B. Ramachandra Chary from the side of his mother. She denied that Ramachandra Chary never visited
Visakhapatnam to see his daughter. She also denied a suggestion that she has
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not filed her education certificates before this Court as in the said averments her father’s name is shown as Chebrolu Ramanujachary. She also denied a suggestion that she is the daughter of Smt. Savithri.
14.PW2 who is the maternal uncle of the plaintiff is examined to show that her mother Smt. B. Jyoti is given in marriage to B. Ramachandra Chary and after the death of B. Jyoti, B. Ramachandra Chary had remarried the 4th defendant and he died on 07.02.2006 leaving the plaintiff and the defendants 4 to 7 as his legal heirs who have succeeded to the properties of late B.
Ramachandra Chary and that after remarriage of B. Ramachandra Chary with the 4th defendant, the plaintiff was residing with the 2nd sister of PW2 at
Visakhapatnam. PW2 also testified about the execution of will by Smt. B.
Saraswati who is mother of B. Ramachandra Chary and further stated about the entitlement of the share of the plaintiff in the suit schedule properties as the legal heirs of B. Ramachandra Chary.
15.PW2 in his cross examination has stated that in the school records of PW1, her guardian name is shown as Ramanuja Chary and further stated that the name of PW1 in the school records is mentioned as Chebrolu Dathrisri. He denied a suggestion that PW1 is the daughter of Chebrolu Ramanuja Chary but not the daughter of B. Ramachandra Chary. He also admits that himself and
PW1 have not attended the funeral of Ramachandra Chary as they came to know about his death subsequently.
16.It is interesting to note that PW2 has not been cross examined on the
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aspects spoken by him in his chief evidence affidavit about the death of his sister
Smt. B. Jyoti who is the mother of the plaintiff and thereafter his brother inlaw
B. Ramachandra Chary (father of the plaintiff) remarrying the 4th defendant.
Absolutely the testimony of PW2 with regard to the marriage of B. Jyoti with B.
Ramachandra Chary has not been denied nor any suggestion is given to PW2 that the plaintiff is not born to B. Jyoti through Ramachandrachary. PW2 also testified that to avoid disturbances with her step mother, PW1 is staying with his 2nd sister at Visakhapatnam. This aspect has also not been contradicted on behalf of the defendants 4 to 7 by giving any suggestion to PW2 in his cross examination, to the contrary.
17.PW3 is the family purohit of the mother of the plaintiff and he testified that he performed the marriage of the plaintiff’s mother B. Jyoti with B.
Ramachandra Chary and he also performed all the rituals of the plaintiff from her childhood namely Barasala, Namakarothsavam and Aksharaabyasam. PW3 also stated that the plaintiff and her father resided at Visakahaptnam for some time after the death of B. Jyoti and the plaintiff’s mother B. Jyoti died in the year, 1989 and that the plaintiff resided with her family at Chikadpally,
Hyderabad upto the year 2006. In his cross examination, PW3 has stated that he doesn’t know in which school PW1 has studied at Visakahapatnam, he doesn't’ known English and that he doesn’t know the contents of his chief evidence affidavit.
18.PW4 is the cousin of late B. Ramachandrachary and she testified that her cousin brother B. Ramachandra Chary had married Smt. B. Jyoti in April, 1983
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and the plaintiff was born on 26.05.1984 at Jaya Nursing Home, Hyderabad with multiple defects which included a cleft lip and cleft palate with severe spinal deformities with deformed upper limbs and her parents regularly consulted her seeking medical advise for which she advised corrective surgery.
19.PW4 in her chief evidence affidavit also testified about the death of the mother of the plaintiff due to which the marriage of the 3rd defendant is postponed and she has visited the mother of the plaintiff B. Jyoti while she was in the ICU at Gandhi Hospital, due to cardiac failure. PW4 also stated that the plaintiff is staying at Visakhapatnam in the house of the elder sister of B. Jyoti who have no children and the plaintiff’s maternal aunt and her husband are acting as guardians with the support of B. Ramachandra Chary. PW4 has also testified about the properties bequeathed by Smt. B. Saraswati who is mother of
B. Ramachandra Chary and further stated that the plaintiff is entitled along with the defendants 4 to 7 in the properties of B. Ramachandra Chary as his legal heirs, but the defendants 4 to 7 are not agreeing for settlement.
20.In her cross examination, PW4 stated that she is staying at Vijayanagaram since 1990 and she also stayed at Hyderabad and she worked as Government
Doctor at Vijayanagarm. She denied a suggestion that from the date of her birth, the plaintiff is staying in the house of Ramanuja Chary at Visakaphatnam.
She further stated that she doesn’t know in the school records of the plaintiff, her father’s name is shown as Ramanuja Chary. PW4 has stated that B.
Ramachandra Chary died in the train accident while proceeding to Chennai and the 1st defendant and also her husband are with him at the time of train
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accident. She further denied a suggestion that the plaintiff is not the daughter of B. Ramachandra Chary and she is deposing false. She also denied a suggestion that the plaintiff never resided in Hyderabad and that no negotiations took place for settlement of the issues between the plaintiff and the defendants.
21.The aforesaid cross examination of PW4 shows that no suggestion is given to her on behalf of the defendants 4 to 7 that the plaintiff is not born to Smt.B.
Jyoti and B. Ramachandra Chary. Further, the testimony of PW4 about the birth defects of PW1 and the advise given by her as a Doctor to the parents of PW1 for corrective surgeryhas also not been contradicted by the defendants 4 to 7 in their cross examination of P.W.4. Moreover, the testimony of PW4 that the 4th defendant is the 2nd wife of B. Ramachandra Chary, after the death of Smt. B.
Jyoti who is the mother of the plaintiff, also remained uncontroverted as there is no cross examination on this aspect as spoken to by PW4. Further, the testimony of P.W.4 about the illhealth of B. Jyoti who died on 06.02.1989 and one Vijaya Bharathi who is younger sister of the 4th defendant was engaged to the 3rd defendant who is the elder brother of B. Ramachandra Chary and their marriage was postponed due to the death of B. Jyothi has also not been contradicted by the defendants 4 to 7.
22.PW5 is the cousin of late B. Ramachandrachary who is a retired employee of RTC and resident of Visakhapatnam. He also testified about the marriage of
Ramachandra Chary with B.Jyoti in the year, 1983, and it was attended by him with his wife, the plaintiff born to the said couple Ramachandra Chary and B.
Jyoti on 26.05.1984 with multiple birth defects, B. Jyoti died on 06.02.1989 at
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Gandhi Hospital due to heart failure, the marriage of B. Chandra Shekar who is the elder brother of of B. Ramachandra Chary was postponed due to the death of B. Jyoti and B. Chandrashekar married Vijaya Bharati who is the younger sister of the 4th defendant.
23.PW5 in his chief evidence affidavit also stated about the stay of the plaintiff at Visakahapatnam to avoid unpleasant disturbances with the 4th defendant who is married to B. Ramachandra Chary, during the life time of
Ramachandra Chary, he was looking after the plaintiff and supporting her financially, but after his death, due to the unpleasant situation, the plaintiff resided at Visakhapatnam with her maternal aunt who is the father of B. Jyoti and the 4th defendant has refused to partition the suit schedule property which originally belonged to the mother of B. Ramachandra Chary.
24.In his cross examination, PW5 has admitted that Ramanuja Chary is his relative, and Ramachandra Chary (father of the plaintiff) died in the year, 2006 in a train accident while he was proceeding to Chennai along with the 1st defendant, he has not attended funeral of Ramachandra Chary and he doesn’t know whether the father’s name of plaintiff is shown as Ramanuja Chary in her school records. He further denied a suggestion that the plaintiff is not the daughter of B. Ramachandra Chary and he is deposing false at the instance of the plaintiff due to his close relationship with the Ramanuja Chary.
25.It is worthwhile to notice that no suggestion is given to PW5 in his cross examination on behalf of the defendants 4 to 7 that the mother of the plaintiff
B. Jyoti is the first wife of B. Ramachandra Chary and after her death he married
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the 4th defendant. There is also no contradictory suggestions given to PW5 on behalf of the defendants 4 to 7 that the younger sister of the 4th defendant by name Vijaya Bharthi is married to B. Chandra Shekar who is the elder brother of
B. Ramachandra Chary. No suggestion is also given to PW5 in his cross examination that B. Ramachandra Chary never visited Visakhapatnam to look after the welfare of the plaintiff and never given any financial support to her during her life time. PW5 has also not contradicted by the defendants 4 to 7 in his cross examination about the death of B. Jyoti due to heart failure on 06.02.1989 who is the first wife of B. Ramachandra Chary and also his testimony relating to the birth of the plaintiff with multiple birth defects on 26.05.1984.
26.PW6 is the wife of one Benabaktula Acharya Venkata Prasad who is the cousin of late Ramachandrachary. In her chief evidence affidavit, PW6 has testified that B. Ramachandra Chary married B. Jyoti in the year, 1983 at
Visakhapatnam and the plaintiff was born on 26.05.1984, the parents of the plaintiff visited her house several times, B. Jyoti died on 06.02.1989 due to heart failure in Gandhi Hospital, Hyderabad, the marriage of the 3rd defendant with Vijaya Bharathi who is the younger sister of the 4th defendant was postponed due to the death of B. Jyothi and the 4th defendant is falsely denying the 1st marriage of B. Ramachandra Chary with the 4th defendant, the plaintiff was residing at Visakhapatnam with her maternal aunt to avoid the disturbances and that B. Ramachandra Chary supported the plaintiff financially during his life time and after his death the 4th defendant failed to partition the property to the plaintiff which belonged to B. Ramachandra Chary.
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27.In his cross examination PW6 admitted that one Ramanuja Chary is his relative and he doesn’t know whether the plaintiff’s father name is shown as
Ramanuja Chary in her school records. He denied a suggestion that the plaintiff is not the daughter of B. Ramachandra Chary and he knows that the 1st defendant travelled with B. Ramachandra Chary when he met with an accident and fell down from running train during mid night. He admitted that he has no documentary proof to show that the plaintiff stayed in the house of B.
Ramachandra Chary.
28.A scrutiny of the cross examination of PW6 shows that no specific suggestions are given to him in his cross examination on behalf of the defendants 4 to 7 that the 4th defendant is not the second wife of the B.
Ramachandra Chary having married her after the death of B. Jyoti who is the mother of the plaintiff. Further, the testimony of PW6 is also not contradicted by the defendants 4 to 7 pertaining to the postponement of the marriage of the 3rd defendant with one Vijaya Bharathi who is younger sister of the 4th defendant due to the death of the mother of the plaintiff B. Jyoti.
29.As against the evidence of plaintiff as indicated above, the 1st defendant examined herself as DW1 and testified in her chief evidence affidavit to the contents of her written statement supporting the case of the plaintiff. She has also testified that the plaintiff is the daughter of her younger brother B.
Ramachandra Chary through Smt. B. Jyoti, born on 26.05.1984 and that B.
Ramachandra Chary has married the 4th defendant after the death of B. Jyoti and the defendants 5 to 7 were born to them. DW1 claimed that the 4th
OS.NO. 1977 OF 2008 Page No.24
defendant is falsely denying the marriage of B. Ramachandra Chary with B. Jyoti to avoid the plaintiff’s share in her father’s property. DW1 also stated about the properties bequeathed by her mother B. Saraswati in favour of DW1 and her brothers by executing the registered will deed.
30.In her cross examination on behalf of the plaintiff, DW1 has admitted that the plaintiff is not a party to O.S.Nos. 3538/2008 and 3690/2008 and the plaintiff came to know about the facts mentioned in para Nos. 14 and 15 (pertaining to the two suits) only after filing of the chief evidence affidavit.
a)Dw1 is cross examined on behalf of the defendants 4 to 7 in which she admitted that her marriage was performed in the year, 1966 and she denied a suggestion that they have not accepted the marriage of the 4th defendant with her brother B. Ramachandray Chary. She stated that she has not seen the school records of the plaintiff and she doesn’t know whether the father’s name of the plaintiff is shown as Chebrolu Ramanuja Chary in her school records and admitted that the plaintiff studied in Visakhapatnam. DW1 in her cross examination to a suggestion has stated as “may be true” that the father’s name of the plaintiff is shown as Chebrolu Ramanuja Chary in her school records. She has denied a suggestion that the plaintiff is not the daughter of B. Ramachandra
Chary and the Railway claim filed by the plaintiff against the death of B.
Ramachandra Chary was dismissed.
31.The 4th defendant examined herself as DW2 and testified to the contents of the written statement filed on behalf of the defendants 4 to 7 in her chief
OS.NO. 1977 OF 2008 Page No.25
evidence affidavit. DW2 who is the 4th defendant has stated in her chief evidence affidavit that the plaintiff is not the daughter of B. Ramachandra Chary, but is the daughter of Chebrolu Ramanuja Chary who is residing at Visakhapatnam and the plaintiff never lived with defendants 4 to 7 or with the late B.
Ramachandra Chary in the suit premises at any time. She has also stated that the plaintiff’s name is shown as Chebrolu Datrisri which is the sure name of C.
Ramunja Chary and she has not attended the funeral of B. Ramachandra Chary.
According to DW2 the defendants 4 to 7 are the only legal heirs of B.
Ramachandra Chary and the plaintiff is not entitled for the relief claimed in the suit.
32.DW2 has filed Ex.B1 which is the certified copy of the order dated 01.01.2010 passed by the Railway Claims Tribunal, Secunderabad in which the petition in I.A.No.303/2009 filed by the plaintiff herein to come on record in
O.A.A.No. 248/2006 is dismissed due to non representation. Ex.B2 is notice issued by the counsel for the defendants 4 to 7 to the counsel for the plaintiff to produce the school records of the plaintiff for verification. Ex.B3 is the copy of the downloaded hall ticket of the plaintiff for ICET2009 entrance examination with hall ticket No. 29140400 showing the name of the plaintiff as Datrisri
Chebolu. However, Ex.B3 is the marked subject to objection on the ground that it is not accompanied by the certificate under Section 65 of the Evidence Act.
b)However, at this stage, it is to be noticed that merely because Ex.B1 has resulted in dismissal for non representation and Ex.B3 which is not accompanied by any certificate under Section 65 B of Indian Evidence Act showing that the
OS.NO. 1977 OF 2008 Page No.26
plaintiff has not proved the name of her father as B. Ramachandra Chary but this Court is of the view that Ex.B1 and B3 do not in any way disprove the testimony of Pws1, 3 to 6 and Dw1 about the plaintiff being the daughter of
B.Ramachandra Chary and B. Jyoti.
33.In her cross examination, DW2 has admitted that her younger sister got married to the younger brother of Ramachandra Chary by name Chandra
Shekar. She denied a suggestion that her husband Ramachandra Chary got married with Jyothi in April, 1983 before her marriage with him and the plaintiff is born to them. She also admitted that she has not stated in her written statement that the plaintiff is the daughter of Ramanuja Chary. In her cross examination, DW2 has stated as under: “It is true that in Ex.A3 i.e., Birth Certificate father name is mentioned as Ramachandra Chari and mother name is mentioned as Jyothi. Witness adds that the said Ramachandra Chari is not my husband. The address mentioned in Ex.A3 as H.No. 11213, Vivek Nagar, Chikkadpally is the address of common address to all the occupants. The Ex.A3 is issued by Municipal Corporation of Hyderabad.
The Ex.A4 i.e., Ration Card bears my husband’s photograph but there are certain strikeouts and corrections on the said ration card. The H.No. 11213/A/A1 is my commercial shop address is the suit premises. It is true that in Ex.A4 at page No.4, the family members as shown as :
1. B. Ramachandra Chari 2. B. Nagarajamani
3. B. Datrishree 4,. Raja Vinaya Chandra B.
It is true that a paper publication was issued on 07.02.1989 in
EENADU Hyderabad Edition about the demise of Jyoti i.e., Ex.A5. It is true that the names and H.No. Mentioned in Ex.A5 paper
OS.NO. 1977 OF 2008 Page No.27
publication are true and correct. It is true that in Ex.A8 i.e., Death certificate mentioned as Jyoti, Father/Husband’s name is mentioned as B.R. Chari. It is not true to suggest that the B.R. Chari mentioned in Ex.A8 is my husband’s name. The Ex.A8 is issued by GHMC
Authorities.
34.In so far as the photographs under Ex.A9 are concerned, DW2 has stated in her cross examination as under: “The photographs under Ex.A9 are shown to the witness to identify the persons in it. The witness says that in photographs Nos. 1, 2 and 4 bears myself, my husband, my elder son and a female baby who is my relatives daughter, i.e., the daughter of Sri Ramanuja Chari. I do not know the name of the female baby who is in the above photos at that point of time. After I came to know that the female baby’s name is Datrishree. It is not true to suggest that generally we will not take any photographs with the other family members in our family photo and she is the daughter of my husband through Jyothi and as such we have taken photo including her in our family photo”.
35.DW2 in her crossexamination on behalf of the plaintiff has denied a suggestion that in photograph No.11 under Ex.A9, her husband’s father is there and also denied a suggestion that in photograph No.12 of Ex.A9 her husband is present. She admitted that there was Rent Control Case between her husband and one Kamal Singh who was a tenant in their premises since 22 years back, but she stated that the signature on her written statement and the signature on
Ex.A6 is slightly different and that she has not written any letter to her husband under Ex.A6 when she was at Visakhapatnam along with Datrisri. She further admitted that there is a reference of Kamal Singh in Ex.A6 but claimed that she is not the scriber of Ex.A6 and she has no objection to send Ex.A6 for comparison of the signature with her signature on her written statement and
OS.NO. 1977 OF 2008 Page No.28
Vakalath. She nextly admitted that Ex.B1 shows that the petition is dismissed for non representation and she has not filed any supporting documents under
Ex.B3.
36.In her cross examination dated 14.11.2017, DW2 has admitted as under: “It is true that as per Will, my husband got room Nos. 1, 2 and 7 residential portions for his share and shop Nos. are 1, 2, 9 and 11.
We are utilizing the room Nos. 1, 2 & 7 for our residential purpose.
The shop No.9 is taken/acquired for road widening and the compensation amount was deposited in the court on the file of
Hon’ble XXI Addl. Chief Judge, City Civil Court, Hyderabad. The shop
No. 11 is demolished by us and the open space is under my control.
In the shop Nos. 1 & 2 I am doing hotel Business. The rental value of each shop is Rs. 10,000/ per month. In the vicinity of my shop. My husband sold the half of the area of shop No.2 to third parties. It is not true to suggest that I am doing hotel business in the half of the portion of shop no.2 and I letout the shop No.1 to the tenants. It is not true to suggest that I am getting a rent of Rs. 30,000/ per month from the tenant. It is not true to suggest that the plaintiff is entitled half of the share in room Nos. 1, 2 and 7 and shop Nos. 1, 2, 9 and 11 as she is the daughter of late B. Ramachandra Chari. It is not true to suggest that so also the plaintiff is entitled half of the share of my late husband in the schedule of property mentioned in O.S.Nos.
2152/2006. It is not true to suggest that the plaintiff is also entitled mesne profits and present rents half of the share and in all the suit schedule properties.
I know the PW2, but he is not my relative on either side. I know
PW4 she is the relative of Jayashree. Jayashree is the elder sister of my husband. Benna Bhaktula Vijaya Chari is not my husband’s relative but he is the relative of Jayashree. My surname and b. Vijaya
Chari’s surname is one and the same. Sri Krishna Rai i.e., PW5 is not
OS.NO. 1977 OF 2008 Page No.29
my relative. It is not true to suggest that the PW5 is close relative of me through my mother side. It is not true to suggest that we threatened the brother of PW5 when he came to the court to give evidence. It is not true to suggest that the PW5 came to my house and requested me to give the share of the plaintiff so many times.
In our community, the ladies will not go to burial ground if anybody died. It is not true to suggest that the plaintiff is entitled half of the share in all the suit schedule properties as she is the daughter of late my husband through his first wife and that I am deposing false.
37.From the aforesaid cross examination of DW2, it is apparently manifest that she has admitted that her younger sister (Vijay Bharathi) was married to
Chandra Shekar (Defendant No.3) who is the brother of Ramachandra Chary (husband of DW2). The admissions of DW2 in her cross examination specifically indicated that though she has denied about the writing of Ex.A6 to her husband in which there is a reference of the plaintiff, but DW2 has denied the same by contending that the signature mentioned in Ex.A6 which is attributed to her is slightly different. DW2 claimed that she is not a scriber of
Ex.A6.
38.The aforesaid material on record demonstrates that the plaintiff is claiming to be the daughter of B. Ramachandra Chary and B. Jyoti. The 4th defendant who is the wife of B. Ramachandra Chary claims that the plaintiff is not the daughter of B. Ramachandra Chary and B. Jyoti is not the first wife of B.
Ramachandra Chary. However, the 1st defendant who is none other than the elder sister of B. Ramachandra Chary has specifically spoken about the first
OS.NO. 1977 OF 2008 Page No.30
marriage of B. Ramachandra Chary with B. Jyoti and the plaintiff is born to them and after the death of B. Jyoti, without informing them B. Ramachandra
Chary has married the 4th defendant. Nextly, the testimony of Pws.2, 4 to 6 as discussed above, clearly demonstrate that B. Ramachandra Chary has married B.
Jyothi and the plaintiff is their daughter born to them with certain physical deformities. PW2 is none other than the own brother of B. Jyoti and he testified about the marriage between his sister B. Jyoti and B. Ramachandra Chary and the birth of the plaintiff to them. As indicated above, the testimony of PW2 has not been contradicted by the defendants 4 to 7 about his sister B. Jyoti given in marriage to Ramachandra chary and after her death, Ramachandra Chary has married the 4th defendant. Further more, as indicated in the preceding paragraphs, PWs 4 to 6 have also not been confronted by the defendants 4 to 7 in their crossexamination pertaining to the marriage of Ramachandra Chary with Jyoti before the marriage of 4th defendant with Ramachandra Chary after the death of Jyoti. There is no cross examination of PWs 4 to 6 on this aspect and for the reasons best known to the defendants 4 to 7, they have not specifically cross examined these witnesses on their testimony pertaining to the marriage of Jyoti with Ramachandra Chary before the marriage of the 4th defendant with him. PWs 4 to 6 are also related to Ramachandra Chary and they stated that after the death of the mother of the plaintiff’, the plaintiff was staying at Visakahapatnam in the house of the sister of Jyoti and the guardian’s name of the plaintiff in her school record is mentioned as Chebolu Ramanuja
Chary. In this background of the factual matrix of the case, there is much force in the contentions of the counsel for the plaintiff that since the plaintiff is staying at Visakhapatnam with her maternal aunt, in her school records, the
OS.NO. 1977 OF 2008 Page No.31
guardian’s name is shown as Chebrolu Ramanuja Chary and mere non production of the school records of the plaintiff pursuant to Ex.B2 does not mean that the plaintiff is not the daughter of Ramanuja Chary in view of the evidence of Pw1 and PWs 3 to 6 who have specifically testified about the birth of the plaintiff to B. Jyoti after her marriage with B. Ramachandra Chary. Ex.A3 is the birth certificate of the plaintiff and though it doesn’t contain her name, but the names of the father and mother of the female girl born on 26.05.1984 shows as Ramachandra Chary and Jyoti. Though, Ex.A4 which is the Ration
Card as admitted by PW1 contains some corrections in which the head of the family is shown as B. Ramachandra Chary, but the name of the plaintiff is shown therein as one of the children. The defendants 4 to 7 have not taken any steps to summon the original records from the concerned Rationing officer to show that the names shows thereunder pertaining to the house hold card in the name of B. Ramachandra Chary in Circle No.9 to disprove the case of the plaintiff.
More over, the 4th defendant as DW2 has not specifically taken any steps to get the hand writing attributed to her in Ex.A.6 to disprove Ex.A6 in which it is mentioned that the 4th defendant has blessed the plaintiff. The 4th defendant has also not taken any legal permissible steps to disprove Ex.A7 which is the letter addressed by Ramanuja Chary to her pertaining to his stay with the plaintiff.
Pws.3 to 6 are not all cross examined pertaining to the marriage of
Ramachandra Chary with Jyoti by the defendants 4 to 7. The Hon’ble High
Court of Judicature at Hyderabad in a decision reported in YALLAPI RAJAMMA
Vs. PADITHAM NARAYANA RAO {2018 (1) ALT 251} has categorically held that when part of the chief examination of a witness is not touched in cross examination, it is taken to be admitted by the other side. The ratio laid down in
OS.NO. 1977 OF 2008 Page No.32
this decision squarely applies to the factual matrix of the present case, inasmuch as the testimony of P.Ws. 3 to 6, as spoken to by them in their chief examination remains unchallenged about the birth of the plaintiff to B. Jyothi and B.
Ramachandrachari and therefore, and is deemed to have been admitted by the defendants. The learned counsel for the plaintiff also placed reliance on a decision of the Hon’ble High Court of A.P. reported in MOHD. IBRAHIM AND
OTHERS Vs. Smt. MUNNI @ ZAINAB BEEY {2007 (1) ALT 511} to substantiate the case of the plaintiff that when a fact stated in the chief examination is not disputed in the cross examination, it should be deemed to have been admitted. This decision also applies to the facts of the present case.
Further more, DW2 in her cross examination also admitted about the Rent
Control Case between her husband and Kamal Singh whose reference is made in
Ex.A6. Nextly she has also admitted about Ex.A5 paper publication about the death of Jyoti and Ex.A8 death certificate pertains to the death of B. Jyoti and
Ex.A8 is issued by the GHMC authorities. PWs 3 to 6 are also the common relatives of Ramachandra Chary and they have specifically testified about the fact of PW1 being the daughter of B. Ramachandra Chary and B. Jyoti which fact is also asserted by DW1 who is none other than the elder sister of
Ramachandra Chary. If really B. Ramachandra Chary is not the father of the plaintiff, and has not married the mother of the plaintiff B. Jyoti, there is no necessity for these witnesses to speak false about the birth of the plaintiff to
Ramachandra Chary. The 4th defendant for the reasons best known to her, has not examined her younger sister Vijaya Bharthi to disprove the version of Pws.3 to 6 about the postponement of her marriage due to the death of B. Jyothi who is the wife of Ramachandra Chary.
OS.NO. 1977 OF 2008 Page No.33
a)The learned counsel for the plaintiff has submitted that in the connected suits between some of the parties to this suit which are pending on the file of this court in O.S.Nos. 2152/2006 and 1854/2007, the wife of the defendant
No.3 herein by name B. Vijay Bharathi who is none other than the own younger sister of the defendant No.4 herein has categorically admitted in her cross examination therein that the plaintiff herein is the daughter of B. Jyoti, that a paper advertisement was given for postponement of her marriage, originally fixed on 06.02.1989 due to death of B. Jyothi and after the death of B. Jyoti, B.
Ramachandra Chary married her sister Nagarajamni. It is, therefore, contended by the learned counsel for the plaintiff that the 4th defendant herein is intentionally denying the claim of the plaintiff, so also her legal status as daughter of B. Ramachandra Chary and B. Jyoti. The learned counsel for the 4th defendant has not disputed this aspect of the matter relating to the deposition of
B. Vijaya Bharathi but claimed that the admissions made by in the said suits have nothing to do with the relief claimed in this suit. However, taking a holistic view of the matter and since, the plaintiff has established by way of voluminous oral and documentary evidence on record, as discussed above, to the effect that she is the daughter of B. Ramachandra Chary and B. Jyoti, she is entitled for the relief claimed in the suit.
39.Therefore, having regard to the analysis of the oral and documentary evidence on record, this court holds that the plaintiff has specifically established that she is the daughter of the B. Ramachandra Chary and B. Jyoti. It is not
OS.NO. 1977 OF 2008 Page No.34
disputed that the 4th defendant is the second wife of B. Ramachandra Chary having married him after the death of B. Jyoti and defendants 5 to 7 are born to them. It is also not disputed by the 1st defendant and the defendants 4 to 7 that the suit schedule property fell to the share of B. Ramachandra Chary by virtue of will deed executed by his mother and also after the death of his father
Dharmalinga Chary. Therefore, the said properties are succeeded by the plaintiff and the defendants 4 to 7 after the death of Ramachandra Chary and as the defendants 4 to 7 have not specifically disputed this aspect of the matter, but only denied the claim of the plaintiff for partition, this court holds that the plaintiff being the daughter of Ramachandra Chary is entitled for partition of the suit schedule property as prayed for and she is also entitled for equal share in the suit schedule properties on par with the defendants 4 to 7. This issue is answered accordingly.
40.Issue No.2: The plaintiff has sought a direction to the defendants 4 to 7 to deposit mesne profits into the court pertaining to the portion in their occupation from the date of the suit till the date of disposal and to pay 50% in the rent amount. However, in view of the aforesaid discussion on issue No.1 that the plaintiff is also entitled for a share in the rents in the property which fell to the share of his father as his legal heir on par with the defendants 4 to 7, but the plaintiff shall file a separate petition for adjudication and determination of the mesne profits claimed by her against the defendants 4 to 7. This issue is answered accordingly.
41.Issue No.3: In the result, this suit is decreed with costs by passing a preliminary decree by declaring that the suit schedule property is liable for
OS.NO. 1977 OF 2008 Page No.35
partition and the plaintiff is entitled for equal share with defendants 4 to 7 in the suit schedule property. The plaintiff is entitled for mesne profits along with the defendants 4 to 7 equally along with them in respect of the suit schedule property from the date of the suit to till delivery of her share therein and she shall file a separate petition for adjudication and determination of the mesne profits.
Partly dictated to Personal Assistant, transcribed and typed by him, partly typed, corrected and pronounced by me in the open Court on this the 11 th day of February, 2019.
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:FOR DEFENDANTS:
PW1: Miss. B. Dhathri ShreeDW1: Smt. K. Jayashree
PW2: Mandharapu Venkata DW2: Nagaraja Mani Jagannadha Nageswara Rao
PW3: Dudhupudi Parameswara Chari
PW4: Dr. Vompolu Subhadra
PW5: Vedhuruparthi Venkata Krishna Roy
PW6: Bennabhaktula Vijaya Achary
DOCUMENTS MARKED
FOR PLAINTIFFS:
Ex.A1: Original certified copy of the registered Sale Deed Doc. No.750/1953
Ex.A2: Original certified copy of registered Sale Deed Doc. No.29/1981,
dated 10.10.1981
Ex.A3: Original Birth Certificate issued by Municipal Corporation of Hyderabad.
Ex.A4: Original Ration Card issued by Government of A.P
Ex.A5: Paper publication of Eenadu dated 07.02.1989
OS.NO. 1977 OF 2008 Page No.36
Ex.A6: Letter addressed by the defendant No.4 to her husband
dated 07.10.2004
Ex.A7: Letter address by the husband of defendant No.4 to defendant No.4 dated 14.11.2004
Ex.A8: Death certificate of plaintiff’s mother.
Ex.A9: Photographs with negatives and CD (12 photographs)
FOR DEFENDANTS:
Ex.B1: Certified copy of order dated 01.01.2010 of Railway Claim Tribunal in I.A.No.303/2009 in O.A.A.No.248/2006
Ex.B2: Notice issued by counsel to the counsel for the plaintiff to produce the school records of the plaintiff dated 19.10.2016
Ex.B3: Copy of the Hall Ticket of ICET2009 in the name of Dhatri Sri Chebolu.
I SENIOR CIVIL JUDGE
FAC XVII ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
IN THE COURT OF THE V SENIOR CIVIL JUDGE: CITY CIVIL
COURT, HYDERABAD
PRESENT: DR.S.SRINIVASA REDDY
V SENIOR CIVIL JUDGE.
Dated: Friday, this the 14 th day of October, 2016.
O.S.No.1101 of 2011
Between:
Mohammed Qurram S/o.Late Mohammed Akber, aged about 31 years, Occ: Business,
R/o.174223, Yakutpura, Hyderabad. ...Plaintiff
And
M/s.Bright Constructions Rep.by its Managing Directors,
1. Shaik Mohammed Waliuddin, S/o.Shaik Ahmed, R/o.H.No.1035/F/206, Mehdipatnam, Hyderabad.
2. Mrs.Safia Begum, W/o.Shaik Mohd.Waliuddin, R/o.193706, Ghazibanda, Hyderabad.
3. Syed Liakath Hussain, S/o.Syed Nusrath Hussain, aged about 49 years, Occ: Business, R/o.H.No.10414/1, Masab Tank, Hyderabad.
4. Syed Majid Hussain, S/o.Late Syed Ishrath Hussain, aged about 54 years, Occ: Business, R/o.H.No.10415, Masab Tank, Hyderabad.
5. Syed Aijaz Hussain, S/o.late Syed Ishrath Hussain, aged about 37 years, Occ: Business,
R/o.H.No.10416/A, Masab Tank, Hyderabad. ....Defendants
This suit coming on this day before me for final disposal in the presence of Sri Mohammed Shujauddin, Advocate for the plaintiff and Sri Syed Masood Ali, Advocate for the defendant Nos.3 to 5 and defendant Nos.1 and 2 are set exparte and the matter having been heard and stood over for consideration till this day, this court delivered the following:
J U D G M E N T
This suit is filed by the plaintiff seeking the following reliefs:
i) to pass a decree directing the defendants to execute and register the sale deed in respect of the schedule property i.e., flat
No.403 in A block on 5 th floor, Nasir's Residency, forming part of premises No.10414/1, 1014/2, 10415, 10416/A, admeasuring 975 sft with undivided share situated at Masab
Tank, Humayun Nagar, Hyderabad, in pursuance of the agreement of sale dated 28.12.2010 and deliver the physical possession of the schedule property in case the defendants failed to execute and register the sale deed this court may please to execute and register the sale deed in favour of the plaintiff and deliver the vacant and peaceful possession of the suit property, ii) and for costs of the suit.
2.The averments of the plaint in a nutshell which require adjudication of the issues involved in the suit, are traced out as under :
The plaintiff on 28.12.2010 agreed to purchase from the defendants 1 and 2 the Flat No.403 in A block on 5th floor, Nasir's Residency, forming part of premises No.10414/1, 10414/2, 10415, 10416/A, admeasuring 975 sft with undivided share situated at Masab Tank, Humayun Nagar, Hyderabad, for a total consideration of Rs.9,75,000/. In pursuance of the same, the defendants Nos.1 and 2 executed an agreement of sale on 28.12.2010 and they received a sum of
Rs.2,00,000/ out of Rs.9,75,000/. The defendants have also received another sum of Rs.2,00,000/ out of Rs.9,75,000/. Though the defendant Nos.1 and 2 have received substantial amount towards the sale consideration and promised to complete the construction of the flat and get the sale deed executed within a period of six months, but failed to do so. Having received the amount the defendant
Nos.1 and 2 did not complete the construction. The plaintiff approached and requested the defendant Nos.1 and 2 to complete the construction but they have failed to complete the same. The defendant Nos.1 and 2 are avoiding to execute and register the sale deed by completing the construction of flat. With a malafide intentions the defendants are trying to deal with the schedule property with third parties by misrepresenting the innocent purchasers and also suppressing the subsistence of agreement of sale dated 28.12.2010, as such the plaintiff was constrained to issue the legal notice dt.30.05.2011 to the defendants asking them to execute and register the sale deed in his favour by receiving the balance sale consideration amount in respect of the schedule property. The defendants instead of executing and registering the sale deed are trying to alienate, encumber, create charge and are inducting third parties in respect of the suit schedule property to give a go by to the agreement of sale executed in favour of the plaintiff. In case the defendants succeed in their attempts, the agreement of sale in favour of the plaintiff will be defeated and it may cause multiplicity of the litigation. Hence, the suit.
3.The defendant Nos.1 and 2 remained exparte.
4.A written statement is filed by the defendant Nos.3 to 5 with the following averments:
These Defendants are not aware of the alleged agreement of sale dated 20 122010 to sell the Flat No.403 in “A” Block on Fifth Floor, Nasers Residency, forming part of Premises No.10414/1, 10414/2, 10415, 10416/A admeasuring 975 Sft. with undivided share, situated at Masab Tank, Humayun
Nagar, Hyderabad for a total sale consideration of Rs.9.75,000/ . The Defendants 2 to 5 have entered into a Development Agreement with M/s. Bright Constructions represented through its Managing Director ,Mr. Shaik Mohammed Waliuddin and
Safia Begum, W/o. Mr. Shaik Mohammed Waliuddin to develop the Fifth Floor in the premises bearing No.10414/1, 10414/2, 10415, 10416/A admeasuring 1138 Sq.yds. Situated at Masab Tank, Humayun Nagar, Hyderabad on 20072010.
The said Developer did not obtain permission for construction from the GHMC,
Electricity and Water Works Departments and other concerned Departments which the builder has agreed to obtain the same as per unnumbered Para 2, of the
Development Agreement. The Developers expressed their inability to make construction in the Fifth Floor and requested to cancel the Development
Agreement therefore, the registered cancellation of the Development Agreement
Cum General Power of Attorney was executed between the Defendants 3 to 5, and
Defendants No.1 and 2 herein bearing document No.1511/2011 dated 30042011.
These Defendants 3 to 5 gave paper publication in the daily news paper siyasat on 01052011 to the effect that if any person have got any claim through the
Defendants No.1 and 2 and they may contact them and get the matter settled. But, nobody including the Plaintiff approached or put forth any claim. In pursuance of the said Development Agreement bearing No.2468/2010 dated 20072010 the
Defendants No.1 and 2 herein, who are the builders did not make any construction in the Fifth Floor. Further, after the cancellation of Development Agreement Cum
G.P.A between the Defendants 3 to 5 and 1 and 2 herein, the Defendants 3 to 5 have entered into a Development Agreement Cum General Power of Attorney
dated 30042011 bearing document no. 1513/2011 with Mr. Ali Khaja Ahmed and
Mr. S. Sudhakar Reddy. These Developers also did not obtain permission for construction from Electricity and Water authorities but have made partial incomplete construction. The value of the suit property as on the date of alleged agreement of sale for the suit flat was Rs.18,00,000/ and the Plaintiff and the
Defendants 1 and 2 in collusion with each other, without any right and authority have allegedly entered into an agreement of sale, which is ab initio void. The
Defendants No.1 and 2 have no right and authority to enter into any such agreement with the Plaintiff and it is a collusive transaction and the Plaintiff and
Defendants 1 and 2 are trying to knock away the valuable property of
Rs.18,00,000/ at Rs.9.75,000/. This is a collusive suit between the Plaintiff and
Defendants 1 and 2 which is filed with the malafide intention to knock away the property of these Defendants who are the admitted owners, and that too, at the throw away price. The allegations that the Plaintiff approached the Defendants 1 and 2 to complete the construction and receive the balance consideration amount as he is allegedly ready to pay the balance consideration amount etc., are false and are only stories created for the purposes of this case and to have illegal monitory gains by getting the sale deed executed in respect of the suit flat. The Defendants 1 and 2 do not have the right to make the construction or complete the construction or sell it to the Plaintiff herein. The Development agreement with the Defendants No.1 and 2 is already cancelled under a registered Deed of Cancellation of Development
Agreement sum G.P.A on 20122010. Therefore, the Defendants 1 and 2 are neither in possession, nor have got any right or concern to make construction or develop the Fifth Floor nor as a matter of fact, the Defendants No.1 and 2 have obtained necessary permissions from the concerned Departments and have not made any construction, therefore the alleged agreement of sale of the Plaintiff is not valid. In view of the cancellation of development Agreement the Defendants 1 and 2 cannot sell or alienate the suit flat or any other flat in the Fifth floor and as a matter of fact, the new Builder has also not obtained the necessary GHMC and other permissions and not completed the construction therefore, the Defendants 1 and 2 or the new builders or these defendants can sell or alienate or encumber the suit property as the construction permission from the GHMC and other authorities is not taken and construction is partly made and not completed. Therefore, even these Defendants will not be able to sell the suit flat or any flat in the fifth floor.The Plaintiff has not come to the court with clean hands, as such is not entitled for the discretionary relief of specific performance. The suit has to be filed on the market value as on the date of filing of the suit. Even in the alleged agreement of sale, instead of real market value of Rs.18,00,000/ the consideration amount has been falsely and with malafide intention mentioned as Rs.9,75,000/.
This suit is therefore, liable to be dismissed with costs.
5.On the basis of the above pleadings, the following issues are settled for trial.
Viz.,
1.Whether the development agreement between the defendant Nos.1 and
2 and the defendant Nos.3 to 5 was cancelled vide Doc.No.1511/2011
dt.30.04.2011 under registered cancellation of the development
agreement cum General Power of Attorney, if so by virtue of the said
registered cancellation deed construction or completed construction or
to sell the property to plaintiff as such the sale agreement dt.28.12.2010
in between the plaintiff and defendants is void abinitio, invalid and
illegal under law as contended by defendant Nos.3 to 5 ?
2.Whether the plaintiff is entitled to the relief of specific performance of
agreement of sale dt. 28.12.2010 by executing a registered sale deed in
respect of the suit schedule property by defendant Nos.1 and 2 and to
deliver vacant possession of the suit schedule property as prayed for ?
3.To what relief ?
6.To substantiate his case, the plaintiff examined himself as PW1 and got marked Ex.A1 to A10 on his behalf. (Ex.A10 is marked on behalf of the plaintiff in the cross examination of DW1). PW2 is also examined on behalf of the plaintiff.
On behalf of the defendant Nos.3 to 5, the third defendant examined himself as
DW1 and got marked Ex.B1 to B3.
7.Issue Nos.1 and 2 : Before the crux of the controversy involved in the suit is adjudicated in the right perspective, it is germane to notice that Ex.A1 which is the original agreement of sale dt.28.12.2010 is marked through PW1. However, the first page of Ex.A1 which is on a stamp paper of Rs.100/ denomination was found missing and therefore, permission was sought for by this court by addressing a letter to the Hon'ble Chief Judge, City Civil Court, Hyderabad, in Dis.No.124 of 2016 dated 28.03.2016 for reconstruction of the first page of Ex.A1. Accordingly, the Hon'ble Chief Judge, City Civil Court, Hyderabad, has granted permission in
Order No.CCCHyd/AW/E2/1496/2016 dated 04.04.2016, to reconstruct the first page of Ex.A1. Thereafter, I.A.No.414/2016 which is filed by the plaintiff under
Section 151 of CPC seeking to reconstruct Ex.A1 by receiving first page of the xerox copy of the agreement of sale dt.28.12.2010, was allowed on 01.06.2016 and the first page of Ex.A1 is reconstructed with its xerox copy.
Burden of proof in a suit for Specific Performance of agreement of sale:
8.Insofar as proof of execution of the specific performance of agreement is concerned, law places the initial burden of proof on the plaintiff. A Division
Bench of the Hon’ble High Court of Andhra Pradesh in MOHAMMED
IBRAHIM AND ANOTHER Vs. MOHAMMED ABDUL RAZZAK {2007 (5)
ALT 510} at para 25 has categorically enumerated as under: “It is settled proposition of law that the burden of proof is generally on plaintiff. Decision should rest on rule as to burden of proof under law and also the admitted or proved circumstances of the case. The strict meaning of the word ‘onus probandi’ is that if no evidence is given by the party on whom the burden is cast the issue must be found against him and only then the other party has the onus of rebuttal. The first principle of the Evidence Act is that a party who is to prove an allegation must do so. The Court cannot imagine evidence in the absence of it. The plaintiff must succeed on the strength of his own case and is not assisted by any weakness, real or apparent in the case of the defendant. The defect in evidence of the party on whom the onus of proof lies cannot be cured by criticism of the evidence of the other party”
9. In this regard, Section 20 of the Specific Relief Act also required to be noticed which is extracted hereunder:
20. Discretion as to decreeing specific performance (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1 : Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause
(b).
Explanation 2: The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
10. Keeping in view the above legal position, the case of the plaintiff has to be scrutinised to ascertain whether he has established his case to the satisfaction of this Court to exercise discretion in his favour for grant of the relief claimed in the suit.
a)The case of the plaintiff which is evident from the plaint pleadings and his chief evidence affidavit is that the defendants Nos.1 and 2 have executed the agreement of sale under Ex.A1 on 28.12.2010 in his favour agreeing to sell the suit schedule flat for a total sale consideration of Rs.9,75,000/ and received
Rs.2,00,000/ on that date by acknowledging the same. According to P.W.1, Ex.A2 is another receipt appended to Ex.A1 separately shown for receipt of a sum of
Rs.2,00,000/ by the defendants 1 and 2. The plaintiff has also filed Ex.A3 which is another receipt dt.22.02.2011 under which, the defendants Nos.1 and 2 have received another sum of Rs.2,00,000/ in cash being part of the sale consideration towards the suit flat and a balance amount of Rs.5,75,000/ is shown in Ex.A3 and the vendors therein have undertaken to register sale deed in favour of the vendee (plaintiff) or his nominees. The plaintiff has also filed Ex.A4 which is market value certificate showing that the value of the suit flat with a built up area of 975 sft is shown as Rs.8,40,000/ and the composite value per sq.feet is mentioned as
Rs.1400/ and it is issued by the SubRegistrar of Golkonda, Hyderabad.
b).Complaining of not honouring the agreement under Ex.A1 by the defendants
Nos.1 and 2, the plaintiff has issued a legal notice dt.30.05.2011 under Ex.A5 to the defendants Nos.1 and 2, whose copy is also marked to the defendants Nos.3 to 5, as under :
“1. My clients state that you No.1 and 2 being the Managing Directors of M/s.Bright Constructions have entered into an agreement of sale on 28.12.2010 agreed to sell the flat No403 in A block on 5 th floor, Nasirs Residency, forming part of premises No.10 414/1, 10414/2, 10415, 10416/A, admeasuring 975 sft with undivided share situated at Masab Tank, Humayun Nagar, Hyderabad, for a total sale consideration of Rs.9,75,000/.
2. My client state that in pursuance of the offer and acceptance you have executed an agreement of sale on 28.12.2010 and you have received a sum of Rs.2,00,000/ out of Rs.9,75,000/. My client states that you have further received a sum of Rs.2,00,000/ on 22.02.2011 in cash. Thus in this way you have received a consideration of Rs.4,00,000/ out of Rs.9,75,000/. My client states that though you have received a substantial amount towards the earnest sale consideration and promised to complete the construction of the flat and get the sale deed executed within a period of six months but failed to do so. My client states that having received the amount you have not commenced and completed the construction. My client states that he is ready and willing to perform his part of contract by paying sale consideration he is intending to have sale deed in his favour. My client states that he approached and requested you to complete the construction but you have failed to complete the same.
3. My client states that you are avoiding to execute and register the sale deed by completing the construction of flat. My client reliably learnt that you are trying to sell the property incomplete construction of flat to the third parties by suppressing the subsistence of agreement of sale in order to cheat my client.
Hence, my client is hereby call upon you to execute and register the sale deed within seven days from the date of receipt of this notice, failing which my client shall be constrained to take appropriate legal action against you in a court of law at your cost and consequences.”
c).Ex.A6 consists of the postal receipts for sending Ex.A5. Ex.A7 is the returned postal cover of the second defendant while Ex.A8 and A9 are the postal acknowledgments of the third defendant, viz., Nasirs Residency Owners Welfare
Society (Ex.A9).
11.According to the plaintiff as PW1, the defendants Nos.1 and 2 have promised to complete the construction of the suit flat and get the sale deed registered within a period of 6 months but they have failed to comply the same in spite of receiving the substantive amount of Rs.4 lakhs from him and that he is ready and willing to perform his part of the contract. PW1 in his chief evidence affidavit has further averred that the defendants Nos.1 and 2 have colluded with the defendants Nos.3 to 5 and have cancelled the development agreement on 15.11.2011 which is not binding and enforceable against him.
a)According to PW1, the construction of the suit flat is already completed by the defendants after filing of this case and in spite of the same, the defendants have not come forward and registered the sale deed. In his cross examination, PW1 has admitted that four storied building has already been existing and his agreement under Ex.A1 with the defendant Nos.1 and 2 is in respect of the 5th floor and the defendant Nos.3 to 5 are the owners of the said property and that construction was going in the 5th floor by the time of executing Ex.A1. He stated in his cross examination that the defendant Nos.1 and 2 have told him that they have applied for permission for the construction of the 5th floor and also for water and electricity connection and that he has not asked them whether they have obtained any permission for construction, electricity and water connection for 5th floor. PW1 further stated in his cross examination that though he has personally seen the 5th floor construction but he cannot say when he personally visited the 5th floor. He has denied a suggestion that he never went to the 5th floor, the second defendant is the wife of the Managing Director of the 1st defendant, he does not know whether the construction of columns and slab was laid after filing of the suit by Asif Khaza
Ahmed and S.Sudhakar Reddy. He admitted that Ex.A9 is the acknowledgment served on the society and it is true that the said Nasirs Residency Owners Welfare
Society is not a party to the suit. He denied a suggestion that he created Ex.A1 and the signatures on Ex.A1 to A3 are not made by him. He further admitted in his cross examination that in Ex.A5 notice, copies are marked to defendant Nos.3 to 5 and the said notice was not addressed to defendant Nos.3 to 5 and that as he is not concerned with Asif Khaza Ahmed and S.Sudhakar Reddy and therefore, he has not added them as parties to the suit. PW1 also admitted in categorical terms that defendant Nos.2 to 5 are not parties to Ex.A1 and denied a suggestion that Ex.A1 to A3 are forged by him.
b).To prove the execution of Ex.A1 by the defendant Nos.1 and 2 in his favour, the plaintiff has examined PW2 to show that in his presence Ex.A1 is executed by the defendant Nos.1 and 2 and that Ex.A1 is signed by M.A.Zaleel and Minhaj. PW2 is cross examined by the counsel for the defendant Nos.3 to 5 in which, he has stated that the suit flat was to be constructed in the 5th floor, he does not know how many stair cases were constructed in the said apartments, that the measurement of the flat did not take place in his presence, he cannot give the boundaries of the suit flat. According to PW2, the photostat copy of Ex.A1 was given to the builder and original agreement is with the plaintiff. In his further cross examination, PW2 also admitted that he cannot give municipal number of the residential house of the plaintiff, he came to the court at the request of the plaintiff but denied that he is deposing false at the instance of the plaintiff.
12.It is the case of the defendant Nos.3 to 5 which is depicted through the averments of their written statement so also the testimony of third defendant as
DW1 that they have entered into a development agreement with defendant Nos.1 and 2 for development of their property bearing premises No.10414/1, 104 14/2, 10415, 10416/A, admeasuring 975 sft with undivided share situated at
Masab Tank, Humayun Nagar, Hyderabad, for completion of construction of the 5th floor and Ex.A10 is the certified copy of the said development agreement which is marked through DW1 in his cross examination on behalf of the plaintiff. The third defendant who examined as DW1 in his cross examination has categorically admitted that they have executed Ex.A10 on 20.07.2010 in favour of defendant
Nos.1 and 2 and its contents are correct. A perusal of the relevant clauses under
Ex.A10 would specifically demonstrate as under :
“Whereas the second part has accepted the above offer of the first part and agreed to undertake the construction of the 5 th floor in the proposed residential complex over the schedule property known as Nasirs Residency by investing his own funds, and under his care and supervision and now it is agreed between the said parties as follows:
1.That the first party do hereby state and declare that the 5 th floor and any other construction in the property bearing MCH Nos. 10 414/1, 10414/2, 10415, 10416/A,with an undivided share of land for the entire 5 th floor and admeasuring 140 sq.yards; out of 1138 sq.yards; situated at Masab tank, Humayun Nagar, Hyderabad, (for brevity hereinafter called as schedule property) under the development agreement cum General Power of attorney to the schedule property, directly to second party.
2.The first party again categorically reiterates, that they are the absolute owners of the property bearing MCH Nos. 10414/1, 10 414/2, 10415, 10416/A, with an undivided share of land for the entire 5 th floor and admeasuring 140 sq.yards; out of 1138 sq.yards; situated at Masab tank, Humayun Nagar, Hyderabad, they are entitled to deal with the said property and that all receipts issued by the first party shall be binding in respect of the property which forms the schedule property.
3.The first party having granted irrevocable rights to the second party to develop the 5 th floor any other area in schedule property.
a. The owners being the first party, and the developer being the second party, have mutually agreed and decided upon a scheme for sharing of builtup areas of the proposed building among themselves; and accordingly the built up areas of the building shall be allocated among the parties as follows : b. The first party shall be allotted and entitled to 40% share in the 5 th floor in the schedule property and on A block to the party No.1 ofthe first party, the first party shall be entitled to 40% if any other construction is made in the proposed building except as mentioned above. The following flats are alloted to the party Nos.1 and 2 of the first party :
Floor Flat Nos. Area No.
Fifth A Block, Flat 1300 Floor No.402 sq.ft;
A block flat 900 No.404 sq.ft;
The party No.2 of the party is entitled and allotted as
Floor Flat Nos. Area No.
Fifth B Block, Flat 1150 Floor No.408 sq.ft;
B block flat 950 No.406 sq.ft; c. The second party shall be allotted and entitled to 60% share in the 5 th floor in the schedule property on ABlock, the second party shall be entitled to 60% if any other construction is made in the proposed building except as mentioned above. The following flats are allotted to the second party :
Floor Flat Nos. Area No.
Fifth A Block, Flat 1300 Floor No.401 sq.ft
A block flat 975 No.403 sq.ft
B Block, flat 700 No.405 sq.ft;
B block flat 1300 No.407 sq.ft; d. That both the parties hereby agreed that the parking area shall be allotted for only two car parkings for the second party.
e. The second party agrees to indemnify the first party against any claims, demands made by its employee's or servants with regard to any loss or damage caused by any fault on the part of the second party.
f. Further the second party shall with its own funds develop the entire 5 th floor with the super built up area which includes common area, circulation areas, lift, cars electrical transformer, parking.
4. the entire cost of the development/construction of the 5 th floor in the schedule property till its completion and all costs preceding it in relation to the proposed constructions shall be borne by the second party only and the first party shall have nothing to do with the same.
5. that the first party, and the second party are fully entitled to procure customers for flats and other spaces, falling to their respective shares and to enter into agreement of sale with such customers collect advances and to issue valid receipts to such purchasers in respect of their respective shares in the built up area.
7. The entire construction areas of the owners and developers must be completed and delivered to the party Nos.1 and2 and possession shall be given to them within a period of 9 months from the date of commencement of work or from the date of registering this document, whichever is early. However, before or after the completion of the construction both the parties shall be entitled to enter into agreements of sale and obtain advances, from the customers for the purchase of flats and other spaces falling to their respective shares only and a grace period of 90 days shall be given to the second party. In the event of second party fails to complete the construction within the stipulated period than the agreement shall be terminated and would be null and void or else rents would have to be paid for 4 flat owners as per existing rents.
12. The first party declares that they are the absolute owners of the parties hereto touching these presents the matter shall be referred to the arbitration and the award passed by such arbitrator shall be final and binding on both the parties and the relevant provisions of the arbitration and reconciliation Act shall apply.
13. In case of any disputes arising between the parties hereto touching these presents the matter shall be referred to the arbitrator and the award passed by such arbitrator shall be final and binding on both the parties and the relevant provisions of the arbitration and reconciliation Act, shall apply.
14. The second party hereby agrees to on as member of the society that is already exists by all the flat owners of the building complex and shall abide by the rules and bylaws of the society.”
13.In the light of the categorical admission of the third defendant as DW1 that they have entered into a development agreement with defendant Nos.1 and 2 and that its contents are correct, clause 5 of Ex.A10 which is extracted above, assumes significance in which, it is categorically enumerated that the first party and second party thereto are fully entitled to procure customers for flats and others spaces falling to their respective shares and to enter into agreement of sale with such customers, collect advances and to issue valid receipts to such purchasers in respect of their shares in the built up areas. In this view of the matter, in the absence of the defendant Nos.1 and 2 contesting the suit and denying the Exs.A1 to A3, the second party to Ex.A10 which is the builder is entitled to enter into an agreement under Ex.A1 with the plaintiff in respect of his share of flats. When the contents of Ex.A10 are admitted to be correct by DW1, therefore, Clause 5 thereof permits the defendant Nos.1 and 2 to enter into Ex.A1 with the plaintiff and to receive amounts as advance/sale consideration etc. and as such, the agreement under Ex.A.1 executed by the defendants 1 and 2 in favour of the plaintiff cannot be said to be contrary to the clauses under Ex.A.10 in the absence of any rebuttal evidence adduced by the defendant Nos.1 and 2 by contesting the suit by disputing the execution of Exs.A1 to A3.
14.It is the claim of the defendant Nos.3 to 5 that as the defendant Nos.1 and 2 have not obtained the permission for construction of 5th floor and requested them to cancel the original of Ex.A10, they have cancelled the same by executing a registered cancellation of the development agreement under Ex.B1 on 30.04.2011 which is also signed by the defendant Nos.1 and 2 and on the same day, they have entered into another development agreement under Ex.B2 with Ali Khaja Ahmed and Mr. S. Sudhakar Reddy for construction of the 5th floor on their property. A perusal of the recitals under Ex.B2 would show that they are similar to Ex.A10 and
Ex.B2 is also for construction of the 5th floor over the property of the defendant
Nos.3 to 5.
15.Admittedly, the defendant Nos.1 and 2 who entered Ex.A10 with the defendant Nos. 3 to 5 or the defendant Nos.3 to 5 have filed the municipal sanction plan for construction of the 5th floor over the property belonging to defendant Nos.3 to 5. The defendant Nos.3 to 5 in their written statement and also
DW1 in his chief evidence affidavit have claimed that the defendant Nos.1 and 2 did not obtain any municipal permission for constructing flats on the 5th floor and therefore, the alleged transactions under Ex.A1 to A3, between the defendant Nos.1 and 2 and the plaintiff is abinitio void and illegal and that the plaintiff in collusion with the defendant Nos.1 and 2 is trying to knock away the valuable property of Rs.18 lakhs @ Rs.9,75,000/ only.
16.The third defendant in his cross examination as DW1 has also stated that as on 30.04.2011 there were no columns or roof in the 5th floor and they have handed over the terrace to the defendant Nos.1 and 2. He further stated that there is no permission from the MCH and they had to stop the construction and till this date the construction is incomplete. He has also stated that at the time of execution of
Ex.A10, defendant Nos.1 and 2 were also present. He nextly admitted in categorical terms that the defendant Nos.1 and 2 had power to enter into the said agreement (under ex.A1) as per clause No.5. DW1 also stated in his cross examination that he has not issued any reply to Ex.A5 and in the year 2009 they sold two flats at the rate of Rs.1400/ per sq.feet in the first and second floor for which, there was sanction of MCH. At a later stage of his cross examination DW1 has admitted that they are in possession of the incomplete construction in the first floor and that they have not applied for regularization but he added that they have applied in the year 200809. He however, stated that he cannot file photos to show the present stage of construction in the 5th floor and he is having objection to get an advocate commissioner appointed to note down the physical features of the 5th floor. He nextly admitted that Ex.B3 is dated 09.01.2015 and he can produce the valuation certificate of the year 2010 for the said flat. He denied another suggestion that he can identify the signatures of defendant Nos.1 and 2 under
Ex.B1 which are marked as Ex.B1(B). He admitted in his cross examination that
Ex.B1(d) belongs to the first defendant and Ex.B1(c) is the signature of the 4th defendant.
17.It is evident from the record that there is no municipal sanction plan for construction of the 5th floor obtained by the developers under Ex.A10 or by the defendants Nos.3 to 5 pursuant to Ex.B2. However, Ex.B2 does not contain any specific recital as to the legality or otherwise of the agreements entered into by the defendants 3 to 5 under Ex.A10 with defendants 1 and 2. As discussed above, the recitals under Ex.A10 and Ex.B2 are similar to each other and they have been executed by the defendant Nos.3 to 5 for construction of the 5th floor without there being any municipal permission. In any event, DW1 in his cross examination though stated that he was not prepared for appointment of an advocate commissioner to note down the structures on the 5th floor and has not filed any photographs showing the existence of the said structures, but in all probability he has admitted in categorical terms that some structures were constructed. However, according to the defendant Nos.3 to 5 the said construction work was undertaken by the developers under Ex.B2 but not by the defendant Nos.1 and 2. The defendant Nos.1 and 2 though have remained exparte but the plaintiff has not specifically demonstrated about the construction work done by them pursuant to
Ex.A10.
18. When Ex.A10 and Exs. B.1 and B.2 are juxtaposed to each other, it is apparent that the original of Ex.A10 has been cancelled under Ex.B1 by the defendant Nos.3 to 5 which was between themselves and the defendant Nos.1 and 2 and they entered into another agreement under the original of Ex.B2. However, as discussed above, when Ex.A10 is cancelled under Ex.B1 to which, the defendant Nos.1 and 2 have also appended their signatures as asserted by the defendant Nos.3 to 5 and thereafter, Ex.B.2 is also admittedly got executed which is also registered, but the effect of Ex.A1 to A3 pursuant to cancellation of Ex.A10 has not been mentioned in Exs.B.1 or B.2.
19.Having regard to the execution of Ex.B2 after cancelling Ex.A10 under
Ex.B1, it is the case of the defendant Nos.3 to 5 that the property was entrusted for construction of the 5th floor by the developers namely Ali Khaja Ahmed and Mr.
S. Sudhakar Reddy. The recitals of Ex.B2 would further demonstrate that there was no construction as on the date of execution of Ex.B1 and B2. Moreover, the legal notice issued on behalf of the plaintiff under Ex.A5 to the defendant Nos.1 and 2 whose copy is also marked to defendant Nos.3 to 5 also makes it discernible that the construction of the flat on the 5th floor has not been commenced and completed and thereby the defendant Nos.1 and 2 were called upon under Ex.A5 to hand over the possession of the constructed flat to the plaintiff to execute and register the sale deed within a period of 7 days from the date of receipt of the said notice. Therefore, a perusal of Ex.A5 issued on behalf of the plaintiff would itself depicts that the construction has not been completed by the defendants Nos.1 and 2 and as contended by the defendant Nos.3 to 5, and on account of the inability of defendants Nos.1 and 2 to complete the construction work, Ex.A10 was cancelled and the construction work was entrusted to two other builders under Ex.B2.
20. Therefore, in view of the aforesaid factual matrix of the case, when the defendants Nos.1 and 2 have been divested of the property pursuant to Ex.A10 on the basis of Ex.B1 and B2 and the agreement in their favour has been cancelled which has not been challenged by them, and since the property itself has not been completely constructed, the plaintiff cannot seek specific performance of Ex.A1 against the defendants Nos.1 and 2 seeking execution of a regular registered sale deed for which admittedly, there is no municipal approved sanction. Even at present also though DW1 has admitted that the structure over the 5th floor is almost completed except some electrical work and fittings, but there is no material on record to demonstrate that the said structures are approved by the Municipal
Corporation and are fit for alienation in favour of prospective purchasers.
Admittedly, defendants No.3 to 5 are not parties to Ex.A1 and they have not received the consideration under Ex.A2 and Ex.A3 which fact is also admitted by
PW1 in his cross examination. Therefore, as indicated above, when there is no municipal sanction or permission for the construction over the 5th floor of the property belonging to defendant Nos.3 to 5 and as the defendant Nos.1 and 2 have failed to complete the construction and their agreement under Ex.A10 is cancelled under Ex.B1, the plaintiff cannot seek the enforcement of Ex.A1 in respect of a property whose construction is not legally approved by the competent authority.
21.The defendant Nos.1 and 2, in view of Ex.B1 and B2, have been divested of the property and did not proceed with the construction nor having any authority to execute a registered sale deed in favour of the plaintiff in pursuance of Ex.A1 as they have become incapable to deliver the possession of the completely constructed flat to the plaintiff. There is no material on record adduced by the plaintiff that Ex.A10 has been cancelled by the defendants Nos.3 to 5 unilaterally without the consent of defendants 1 and 2 even though the defendant Nos.1 and 2 have obtained permission from the municipal corporation, electricity and water works department.
a) Even in terms of Ex.A5 as discussed above, the suit flat never came into existence pursuant to Ex.A1 which was executed by the defendant Nos.1 and 2 on the basis of Ex.A10 entered into between themselves and the defendant Nos.1 to 3.
Moreover, the suit is filed only on 15.06.2011 within 15 days from the date of
Ex.A5. Therefore, in view of the recitals of Ex.A5, when the defendant Nos.1 and 2 have not commenced and completed the construction, the plaintiff cannot seek registration of a sale deed pursuant to Ex.A1 in respect of a flat which has not come into existence as on the date of filing of the suit. The plaintiff has not placed any material on record to demonstrate that as on the date of filing of the suit, the defendant Nos.1 and 2 have completed the construction of the suit flat or a specific portion thereof and their agreement with the defendants 3 to 5 is still in force. In this view of the matter, Ex.A1 has become incapable of enforcement as it is hit by the doctrine of frustration.
b) The plaintiff also did not place on record the specifications and measurements of the completed structure, its sanctioned plan and also its dimensions seeking registration in his favour in respect of the suit flat. Therefore, in the above circumstances, it is also apparent that Ex.A1 is hit by the doctrine of impossibility and has become frustrated having regard to the fact that the defendants 1 and 2 have failed to complete the construction of the structure and were also divested of the right to complete the construction in view of Exs.B.1 and
B.2.
c)In this background, it is germane to refer to the provisions of Section 17 of the Specific Relief Act, 1963, which has got a bearing on the controversy involved in the suit, which are extracted as under:.
Section 17 Contract to sell or let property by one who has no title, not specifically enforceable.
A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor;
(a) who, knowing not to have any title to the property, has contracted to sell or let the property;
(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.
c)Therefore, in the light of the provisions of Section 17 of the Specific Relief
Act, 1963, defendants 1 and 2 are no longer holding their share and rights under
Ex.A.10 in respect of the property and in the light of Exs.B.1 and B.2 they have no valid and subsisting right to execute the regular registered sale deed, and as such,
Ex.A.1 executed by them in favour of the plaintiff becomes unenforceable. This proposition of law is enunciated by the Hon'ble Supreme Court in PEMMADA
PRABHAKAR Vs. YOUNGMEN'S VYSYA ASSOCIATION {2014 (7) ALT 38
(SC)} in which the provisions under Section 17 of the Specific Relief Act, 1963 have been clearly enumerated with reference to a suit for specific performance of a contract in the event of the vendors losing their rights to execute the registered sale deed pursuant to an agreement of sale. This judgment of the Hon'ble Supreme
Court clearly attracts to the factual matrix of the present case.
22.On a careful perusal of Ex.A10 and Exs. B.1 and B2 it is also limpid that there is no specific mention therein that in the event of the failure of the developers (defendants 1 and 2) to complete the construction or to perform their part of the contract, the burden is on the land owners (defendants 3 to 5) to step into the shoes of the developers (defendants 1 and 2) and perform their part of the contract on behalf of the developers. Moreover, when Ex.A10 has been cancelled through
Ex.B1 and in its place another agreement under Ex.B2 has been executed which fact has not been denied by the plaintiff as he has admitted some of the signatures of the executants and witnesses under Ex.B1, the defendant Nos.1 and 2 cannot be said to have any right in respect of the said property to execute the registered sale deed pursuant to Ex.A1 in favour of the plaintiff. Similarly, there is also no obligation on defendant Nos.3 to 5 to perform the rights and obligations of the defendant Nos.1 and 2 pursuant to Ex.A10 after its cancellation under Ex.B1 in the absence of any covenant to that effect under Exs.B.1 and B.2.
23. It is apparent from the record that the plaintiff has not sought for the alternative relief of recovery of a sum of Rs.four (4) lakhs from the defendant
Nos.1 and 2 paid by him pursuant to Exs.A.1 to A.3 in the event of the relief of specific performance being denied to him in the suit. The defendant Nos.3 to 5 admittedly have not received any amount from the plaintiff, much less, the amount under Exs.A2 and A3. In a latest decision reported in NARAYANA REDDY,
DIED PER L.RS. AND OTHERS Vs. KHAJA GULAM MUSTAFA {2016 (2)
ALD 503}, while analysing the provisions of Section 22(1)(b) of the Specific
Relief Act, 1963, the Hon'ble High Court of Judicature at Hyderabad has categorically held that if the plaintiff has not specifically asked for the refund of the earnest money in the relief portion of the suit, the Court cannot grant refund of the earnest money to him in the absence of such relief. In the instant case, the plaintiff also did not make any attempt even during the pendency of the suit to seek the alternative relief of refund of the earnest money paid by him to the defendants 1 and 2 under Exs.A.1 to A.3. Therefore, in the absence of the plaintiff seeking the alternative relief of refund of the amount of Rs.4,00,000/ paid by him to the defendants 1 and 2, and also failing to establish that the rights of defendant Nos.1 and 2 pursuant to Ex.A10, which were divested under Exs.B.1 and B.2, stood transferred and vested in defendant Nos. 3 to 5 pursuant to Ex.B1 and Ex.B2, this court holds that the plaintiff is not entitled to seek specific performance of Ex.A1
dated 28.12.2010. Therefore, issue Nos.1 and 2 are answered against the plaintiff.
24.Issue No.3: In the result, the suit is dismissed but in view of the peculiar facts and circumstances, there shall be no order as to costs.
Dictated to the Personal Assistant, typed by her, corrected and pronounced
by me in the open court on this the 14th day of October, 2016.
V Senior Civil Judge,
City Civil Court:Hyderabad
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:For Defendant: PW1: Mohammed Qurram DW1: Syed Liakath Hussain PW2: Mohammed Rafiuddin @ Khaja Pasha
DOCUMENTS MARKED
For Plaintiff: Ex.A1 is original agreement of sale dt.28.12.2010 executed by the defendant Nos.1 and2 (first sheet being xerox copy since reconstructed). Ex.A2 is original receipt dt.28.10.2010 executed by the defendant Nos.1 and2. Ex.A3 is original receipt dt.22.02.2011 executed by the defendant Nos.1 and2. Ex.A4 is valuation certificate. Ex.A5 is office copy of the legal notice dt.30.05.2011. Ex.A6 is postal receipt Nos.6. Ex.A7 is postal cover sent to defendant Nos.2 containing the legal notice with postal acknowledgment. Ex.A8 postal acknowledgment of defendant No.4 Ex.A9 is postal acknowledgment sending notice to Nasir Residency Owners Welfare Society Rep.by its Secretary Mohd.Yasin Hussain. Ex.A10 is certified copy of development agreement cum GPA.
For Defendants 3 to 5 : Ex.B1 is certified copy of cancellation of development agreement cum GPA. Ex.B2 is certified copy of development agreement cum GPA. Ex.B3 is market value certificate.
V Senior Civil Judge,
City Civil Court:Hyderabad
IN THE COURT OF THE V SENIOR CIVIL JUDGE: CITY CIVIL
COURT, HYDERABAD
PRESENT: DR.S.SRINIVASA REDDY
V SENIOR CIVIL JUDGE.
Dated: Friday, this the 10 th day of June, 2016.
O.S.No.2111 of 2012
Between:
K.Jayashree, W/o.Dr.M.S.Subrahmanyam, aged 56 years, residing in Flat No.202, Jatkar Bhavan, 18526, Street No.7,
Chikkadpally, Hyderabad. ...Plaintiff
And
1. B.Chandrasekhar, S/o.B.Dharmalingachari, aged about 51 years, Residing at H.No.11213, Chikkadpally, Hyderabad.
2. B.Nagarajamani, W/o.Late B.Ramachandra Chari, aged 43 years, Residing at H.No.11213,
Chikkadpally, Hyderabad. ....Defendants
This suit coming on this day before me for final disposal in the presence of Sri S.Balchand, Advocate for the plaintiff and Sri K.Laxmi Narayana, Advocate for the defendant No.1 and Sri K.Madhava Rao, Advocate for the defendant No.2 and the matter having been heard and stood over for consideration till this day, this court delivered the following:
J U D G M E N T
This suit is filed by the plaintiff seeking the following reliefs :
a) To pass a decree of perpetual injunction restraining the defendants from raising any construction and not to interfere with plaintiff's property on first floor (ground floor terrace) open terrace measuring 175 sq.yards covered by portion of premises bearing Municipal No.11213 situated at Chikkadpally,
Hyderabad.
b) To direct the defendant No.2 to deliver physical possession of the portion of the suit property measuring 324 sq.feet along with construction therein to the plaintiff as per plan annexed and delineated in red colour.
c) To direct the defendant No.2 to pay mesne profits at the rate of
Rs.10,000/ per month from the date of the suit till the date of actual delivery of the physical possession of the property measuring 324 sq.feet, and
d) for costs of the suit.
2.The averments of the amended plaint, in brief, for effective adjudication of the issues involved in the suit are delineated as under:
The plaintiff is the eldest daughter of Sri B.Dharmalingachari and
Smt.B.Saraswathi. The first plaintiff is the brother of the plaintiff and the second defendant is the wife of the deceased brother of the plaintiff by name
B.Ramachandra Chari. The mother of the plaintiff was the absolute owner and possessor of the property bearing No.11213 admeasuring 672 sq.yards situated at
Chikkadpally, Hyderabad having purchased the same under a registered sale deed bearing Doc.No.750 of 1953 dt.15.05.1953. The mother of the plaintiff has executed a registered will bearing Doc.No.29 of 1981 on 10.10.1981 bequeathing her properties in favour of her husband namely B.Dharmalingachari and her four children namely the plaintiff, first defendant, husband of the second defendant by name late B.Ramachandra Chari and B.Siddhartha. According to the said registered will, in the property bearing Municipal No.11213, Chikkadpally,
Hyderabad, plaintiff's mother has bequeathed room No.1 measuring (10X12) to her husband and it was also stated in the will that after his demise it shall go to husband of defendant No.2. Likewise room No.2 measuring (10X12) and room
No.7 measuring (10X10) were given to husband of defendant No.2. Room No.3 measuring (10X12) and Room No.8 measuring (12X16) were bequeathed to defendant No.1. Likewise room No.3 measuring (10X12) and room No.8 measuring (12X16) was bequeathed to defendant No.1. Room No.4 measuring (10X14) and room No.5 measuring (10x10) and room No.6 measuring (10X8) were bequeathed to B.Siddhartha. There is a staircase by side of room No.7 and there is another staircase by side of room 1 and 2. The mother of the plaintiff also bequeathed shop Nos.1 and 2 to husband of defendant No.2, shop No.3 and 4 to defendant No.1, Shop No.5 and 6 to B.Siddhartha, shop No.7 to the plaintiff.
Likewise, Smt.B.Saraswathi bequeathed three small shops bearing No.8,9 and 10 and outhouse behind those shops along with open space measuring 75.8 sq.yards in favour of Sri B.Dharmalingachari. Apart from the above bequests, allotments of the other property was also made by the mother of the plaintiff.
Smt.B.Saraswathi, the mother of the plaintiff has executed a registered gift deed in favour of the plaintiff in respect of open terrace measuring 175 sq.yards covered by portion of premises bearing 11213, situated at Chikkadpally,
Hyderabad. The said gift deed was registered as doc.No.550 of 1982 in Book
No.1, volume No.27 at pages 354 to 357 on 15.05.1982 in office of the Sub
Registrar, Chikkadpally, Hyderabad. Under the said gift deed she was put in possession of the property and plaintiff is enjoying the same as the absolute owner of the property. Apart from the terrace rights, plaintiff has been given right and liberty to use the two stair cases already in existence to reach the terrace of the said property. Plaintiff was given the rights to use the well situated in the property for all purposes. Plaintiff was also at liberty to construct the overhead tank and draw water from the well. The mother of the plaintiff died on 15.02.1983 and on her death, the bequest made by her in the said registered will came into force, the father of the plaintiff B.Dharmalingachari died on 25.10.1987 and after his death shop Nos.8,9 and 10 and the outhouse behind the shops in property covered by municipal no. 11213, situated at Chikkadpally, Hyderabad, devolved upon the plaintiff, defendant No.1, husband of defendant No.2 and B.Siddhartha equally i.e., each having 1/4th share. Since defendants Nos.1, 2 and B.Siddhartha and others denied plaintiff's share in the above property, she was constrained to file the suit for partition and separate possession O.S.No.1854 of 2007 on the file of the V
Senior Civil Judge, City Civil Court, Hyderabad.
According to the plaintiff, in view of the registered gift deed dated 15.05.1982 executed by her mother in her favour, she can exercise all the rights over the well situated in the premises by fixing electric pump to draw water to the premises that she may construct on the first floor and even on the overhead tank.
The gift deed further made it clear that the plaintiff has every right and liberty to use the stair cases, which already exist to reach the first floor. The plaintiff has accepted the said gift. In view of the transfer of right by registered gift deed subsequent to the will, defendant No.1, defendant No.2, her children and
B.Siddartha will not have any right, title or interest over the terrace portion as referred above. To reach the stair case from the entrance of the house property, the way is from the open area in the common areas meant for usage by the plaintiff and defendant No.1, defendant No.2 and her children, and B.Siddartha. The said common area is appurtenant to the property gifted to the plaintiff and plaintiff shall have equal right for its usage and also have undivided share in the land meant for common area.
On 08.10.2008 taking advantage of plaintiff's absence from the premises bearing municipal No.11213, situated at Chikkadpally, Hyderabad, defendant
Nos.1 and 2 to deprive the rights of the plaintiff in respect of the terrace portion have dumped bricks, sand, cement on the terrace portion with an intention to raise constructions. Keeping in view the holidays for Dassara, the defendants malafidely and illegally have engaged mason and other labours and have started raising construction on the terrace premises bearing Municipal No. 11213, situated at Chikkadpally, Hyderabad hastily. Defendants are not the owners of the terrace portion and the said portion exclusively belongs to the plaintiff.
Defendants have no right to raise any constructions on the terrace portion.
Defendants have colluded together to deprive plaintiff's rights in the property. On 09.10.2008 when she asked defendants to stop construction work defendants have openly said that it is open to the plaintiff to take whatever action she likes in her discretion and have threatened her not to interfere. On 09.10.2008 being Dasara,
Municipal Corporation office was closed. On 10.10.2008 the plaintiff lodged a complaint with the Municipal authorities but the officials of the corporation who are under influence of defendants are not taking any action against the illegal construction work. The second defendant has completed the construction work after filing of the suit and raised a room and bath room with asbestos roof and over head tank in the portion of the suit schedule property, by demolishing the portion of the parapet wall facing the open area on the southern side and a portion of the
South Eastern side of the suit schedule property resulting in causing damage to the old construction. The said defendant is liable to pay damages amounting to Rs.2 lakhs to the plaintiff. The second defendant has trespassed into the plaintiff's property and she has no right to continue to occupy the portion of the suit property and the second defendant be directed to deliver the suit property to the plaintiff and she is liable to pay mesne profits @ Rs.10,000/ from the date of the suit till the delivery of actual and vacant possession of the same to the plaintiff. Defendant
No.2 has made a false statement before this Hon'ble Court in the counter affidavit filed in I.A.No.384 of 2008 by stating that there was no construction activity as on the date of filing of suit. In fact, subsequent to filing of the counter she continued with the said construction. The defendant No.2 filed a photograph in I.A.384 of 2008 on 13.10.2008 of a semifinished construction of a brick structure before any plastering or flooring was done. The defendant No.2 also claimed that the brick structure was recent in I.A.No.383 of 2008 but subsequently claimed that structure was existing long back with intent to grab the property. Hence, the suit.
3.Originally the suit was only filed for the relief of perpetual injunction on the file of XXII Junior Civil Judge, City Civil Court, Hyderabad, as mentioned in
Clause (a) of the relief portion as mentioned above. However, I.A.No.87 of 2009 which was filed by the plaintiff under Order 6 Rule 17 CPC seeking to add para
Nos.8(a) to 8 (d) of the plaint, was allowed on 22.03.2010 pursuant to which, as the relief claimed in the suit exceeded the pecuniary jurisdiction of the said court, the suit came to be transferred to this court for disposal according to law.
4.The first defendant has filed a written statement by contending that the plaintiff is not having title over the suit schedule property at any point of time and this defendant has transfered his share in favour of his wife through registered gift deed vide doc.No.3872 of 1993 and his wife is in possession of part of the suit schedule property and as such, this suit is liable to be dismissed against this defendant. It is denied that the mother of the plaintiff executed a gift deed in her favour. The plaintiff is not in possession of the suit schedule property at any time.
The suit is therefore liable to be dismissed with exemplary costs.
5.The second defendant has filed a written statement by admitting the relationship between the parties and also admitting fact that the mother of the plaintiff and the first defendant was the absolute owner and possessor of the premises bearing No. 11213 admeasuring 672 sq.yards situated at Chikkadpally,
Hyderabad. However, it is claimed that the plaintiff after her marriage was never in possession of the property as she was in Hongkong. It was admitted that the mother of the plaintiff executed a registered will on 10.10.1981 bequeathing her property in favour of her husband and children in different portions. It is also admitted in para No.6 of the written statement of the second defendant that the mother of the plaintiff executed a registered gift deed in favour of the plaintiff to use the open terrace but the plaintiff never used the open terrace from the date of the gift. The second defendant is using the terrace, is in occupation of the same and therefore, the plaintiff has lost her rights, if any, on the open terrace under the alleged gift deed. The second defendant, her husband and children were in possession and enjoyment of the ground floor and first floor prior to 1989. The plaintiff has not claimed the terrace rights till today from the date of the alleged gift deed. The plaintiff is not entitled to claim terrace rights as the second defendant has already put a tin shed on the terrace long back and is in possession of the first floor. The gift deed has become infructuous since the plaintiff has not used the open terrace from the date of the gift deed. After the death of the father of the plaintiff, who was the absolute owner of shop Nos.8 and 9 and out house along with open space, his sons have equal share in the property and the plaintiff will not get any share in the 80 sq.yards. The plaintiff filed false suit in O.S.No.1854/2007 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad. The alleged gift deed dated 15.05.1982 is not a valid document as the plaintiff never used the terrace and was never in possession of the same. The tin shed asbestos sheet was constructed long back and I.A.No.383 of 2008 filed for interim injunction by the plaintiff was dismissed on merits. The second defendant is the absolute owner and possessor of all the structure and the terrace. The plaintiff has given a false complaint to the MCH. This defendant has already filed O.S.No.3690/2008 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad, which is pending. This suit is therefore liable to be dismissed with costs.
6.The second defendant has filed an additional written statement after the amendment of the plaint pleadings by contending that the second defendant is the absolute owner and possessor of the ground floor and first floor of the suit property since more than 20 years and therefore, the question of paying damages @
Rs.20,000/ and also Rs.10,000/ per month as mesne profits does not arise.
O.S.No.7631 of 2007 filed by this defendant against the plaintiff was decreed and
the plaintiff has no right on the terrace. The structure was existing on the first floor since long time. This defendant has filed O.S.No.1353 of 2010 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad for cancellation of the alleged gift deed. The second defendant is in occupation of the entire property and the plaintiff is not entitled for the relief claimed and as such, the suit is liable to be dismissed with costs.
7.On the basis of the above pleadings, on 03.02.2009 the following issues are settled for trial: viz.,
1.Whether the plaintiff is entitled to the relief of permanent injunction
against the defendants ?
2.To what relief ?
On 29.09.2010 the following additional issues are settled for trial: viz.,
1. Whether the plaintiff is entitled for perpetual injunction as prayed for ?
2. To what relief ?
Again on 10.06.2011 the following additional issues are settled for trial: viz.,
1. Whether there is any cause of action for recovery of possession
and delivery of the same by the defendant No.1 to the plaintiff ?
2. Whether the defendant No.1 is entitled for payment of mesne profits to the plaintiff ?
Further, on 15.12.2011 the following additional issues are settled for trial: viz.,
1. Whether there is any cause of action for recovery of possession
and delivery of the same by the defendant No.2 to the plaintiff ?
2. Whether the defendant No.2 is the owner and possessor of the suit schedule property as claimed ?
3. Whether the plaintiff is entitled for recovery of mesne profits from the defendant No.2 ?
It appears from the issues framed above, there is repetition of issues and they are also overlapping causing some element of ambiguity. Therefore, for the purpose of clarity, in the interest of justice, and as no prejudice would cause to any of the parties to the suit as the issues which are now framed is for the sake of convenience only, the above issues are recast, as under:
1. Whether the plaintiff is the lawful owner and possessor of the suit schedule property?
2. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants ?
3. Whether the second defendant is the exclusive owner of the suit schedule property as contended by her?
4. Whether the plaintiff is entitled for recovery of possession of the
suit schedule property from the second defendant and whether she has
trespassed into the suit schedule property belonging to the plaintiff?
5. Whether the plaintiff is entitled to recover the mesne profits from the second defendant?
6. To what relief?
8.To substantiate her case, the plaintiff examined herself as PW1 and got marked Ex.A1 toA13 on her behalf. The second defendant examined as DW1 but no documents are marked on her behalf.
9.Heard the learned counsel for the plaintiff and the learned counsel for the second defendant at length and perused the entire material on record.
10. Issues 1 to 4: On a careful scrutiny of the entire material on record coupled with the submissions of both sides, it is limpid that the controversy involved in the present suit pertains to the ownership of the ground floor open terrace admeasuring 175 sq.yards covered by portion of premises bearing No. 11213, situated at Chikkadpally, Hyderabad, which is the suit schedule property. Since the issue Nos. 1 to 4 which are now recast are inextricably interlinked, they are being discussed and decided together.
The case of the plaintiff as PW1 is that the first defendant is her brother, the second defendant is the wife of her another brother by name B.Ramachandra
Chari, that her mother Smt.B.Saraswati was the absolute owner and possessor of property bearing municipal No.11213 admeasuring 672 sq.yards situated at
Chikkadpally, Hyderabad, having purchased the same under a registered sale deed doc.No.750/1953 dated 15.05.1953. According to the plaintiff, her mother has executed a registered will dated 10.10.1981 under the original of Ex.A1 bequeathing her properties in favour of her husband by name B.Dharmalingachari and her four children namely, the plaintiff, first defendant, late B.Ramachandra
Chari who is the husband of the second defendant and Siddhartha. PW1 further testified that her mother B.Saraswati has executed a registered gift deed on 15.05.1982 under the original of Ex.A2 in her favour in respect of the open terrace admeasuring 175 sq.yards of the ground floor portion of premises bearing No.11 213, situated at Chikkadpally, Hyderabad. PW1 further testified that her mother
B.Saraswati died on 15.02.1983 and her father also died on 25.10.1987. PW1 therefore, claimed that she is entitled for a share in the property which fell to his father's share and she has filed O.S.No.1854 of 2007 on the file of the V Senior
Civil Judge, City Civil Court, Hyderabad for partition and separate possession of
the said property which is pending, the second defendant who has no right or title over the terrace portion, has completed the construction work of room and bathroom with asbestos roof and that also over head tank in the terrace portion of the suit schedule property and therefore, the plaintiff claims that she is entitled for the relief claimed in the suit.
11.The plaintiff as PW1 has also filed 33 photographs of the suit schedule property which are marked as Ex.A4 for which, Ex.A5 is the DVD for the said photographs, Ex.A6 is the certified copy of the notice issued to the second defendant under Section 452 of the HMC Act by the Commissioner, Municipal
Corporation of Hyderabad dt.15.10.2008 claiming that there was an authorized construction of 2 AC sheet rooms on the existing ground floor of premises bearing
No.11213 of Vivek Nagar, Chikkadpally, Hyderabad. It is evident from Ex.A7 which is the certified copy of the plaint in O.S.No.3690/2008 that the second defendant has filed the said suit against the notice issued to her under the original of Ex.A6 by showing the plaintiff herein as third defendant in which, the second defendant as plaintiff therein has claimed that the temporary shed in the first floor of the said premises was raised by her long back. Ex.A8 is the certified copy of the written statement filed by the GHMC in O.S.No.3690/2008 along with the chief evidence affidavit of their official as PW1, Ex.A9 is the letter dt.17.08.1998 written by the second defendant to the plaintiff which is in Telugu, Ex.A10 is another letter
dated 15.12.1998 written by the second defendant. However, there is no mention of
the name of the plaintiff or the signature of the second defendant therein. Ex.A11 is the postal cover for sending Ex.A10 which is addressed to the plaintiff by the second defendant, Ex.A12 is the copy of the affidavit of B.Ramachandra Chari who is the husband of the second defendant in which, it is mentioned that his mother who is also the mother of the plaintiff has executed a gift deed on 07.05.1982 gifting the terrace rights of the said residential portion to his sister who is the plaintiff herein and as his father died intestate on 25.08.1987, the properties bequeathed to him by their mother under the will dt.10.10.1981 fell to the four children of their parents, viz.,, the daughter (plaintiff) and their three sons. While
Ex.A3 is the copy of the complaint dt.10.10.2008 lodged by the plaintiff to the the
Commissioner, Municipal Corporation of Hyderabad against the second defendant herein.
12.A perusal of Ex.A2 which is the certified copy of the gift deed dated 07.05.1982, it is manifestly evident that the mother of the plaintiff Dr.B.Saraswati who retired as a Government District Medical and Health Officer has gifted the open terrace first floor of premises bearing No.11213 situated at Vivek Nagar,
Chikkadpally, Hyderabad approximately of 175 sq.yards absolutely, unconditionally and forever for which, the plaintiff herein as the donee has accepted the same and possession was also delivered to the donee on 07.05.1982. Ex.A3 is again marked as Ex.A13.
13.As discussed above, Ex.A2 specifically demonstrates that the plaintiff has become the owner having accepted the gift of the terrace over the ground floor of the premises bearing No.11213 which was gifted in her favour by her mother. The second defendant has in fact stated in her chief evidence affidavit as DW1 that she has filed O.S.No.1353/2010 seeking cancellation of the said gift deed dated 15.05.1982 under the original of Ex.A2. However, the second defendant has not placed any material on record to demonstrate before this court that the said suit was decreed by cancelling the said gift deed. Therefore, as on today, on the absence of any material to the contrary on record, the said gift deed is legally in force which confers the absolute title over the suit schedule property in favour of the plaintiff.
In so far as Ex.A12 which is the copy of the affidavit executed by the husband of the second defendant is concerned, as mentioned above, at para 3 therein at page 2, it was recited that the mother of the plaintiff has also executed a gift deed on 07.05.1982 which was registered as document No.550/1982 on 12.05.1982 by gifting the terrace rights over the residential portion of 175 sq.yards in favour of the plaintiff herein. Though the second defendant was questioned about the Ex.A12 in her cross examination but except denying the same, she has not specifically denied Ex.A12 nor placed any material on record before this court to demonstrate that the signature found in Ex.A12 does not belong to her husband nor placed any appropriate material to depict that Ex.A.12 is inadmissible in evidence. This is one aspect of the matter.
14.The other dimension of the case of the second defendant is that the plaintiff has never been in possession of the suit schedule property herein from the date of the gift under the original of Ex.A2 but the second defendant is in possession of the said terrace and also made construction and as such, the plaintiff has no right over the suit schedule property. According to the second defendant as DW1 she is claiming ownership of the ground floor residential portion by virtue of the registered will deed executed by the mother of the plaintiff in the year 1981.
However, the second defendant as DW1 has not placed any documentary evidence on her behalf to demonstrate her right over the said property. In her cross examination, DW1 has admitted that the mother of her husband by name
Saraswathi was the absolute owner of the property bearing No.11213 of Vivek
Nagar, Chikkadpally, Hyderabad, and executed a registered will during her life time and that she also executed a registered gift deed in favour of the plaintiff on 15.05.1982 in respect of the suit schedule property. Though DW2 has admitted that as per Ex.A2, her husband was allotted room numbers 1, 2 and 7 along with his brothers, as contended by the counsel for the plaintiff that she has not filed any legal heir certificate to show that she is the wife of late B.Ramachandra Chari.
15.The second defendant as DW1 in her cross examination has stated that she has constructed a room in the year 2008 but has not filed any record to show that there was a tin room existing prior to the year 2008 and that she has not obtained permission of the plaintiff before construction. DW1 has admitted that the photograph Nos.1 to 7, 9 to 14, 16, 20, 22 to 26 and 30 of Ex.A4 pertain to the terrace portion and that she has filed O.S.No.3690/2008 under the original of
Ex.A7 against the MCH which was dismissed on contest in which, the plaintiff herein got impleaded himself and as defendant. DW1 has also admitted that the terrace is covering entire 8 rooms but and her motherinlaw has not written in the said will (under Ex.A1), about the terrace. DW1 has also admitted in her cross examination that there is no document to show that prior to 2008 she had exclusive possession of the terrace except the will and that there is no title to show that the 324 sq.feet over the terrace exclusively belongs to her. She also admitted in her cross examination that the photograph numbers 6 and 7 under Ex.A4 were filed by her in O.S.No.3538/2008 on the file of the IX Junior Civil Judge, City Civil Court,
Hyderabad. She nextly admitted that the photograph No.1 under Ex.A4 is prior to construction of the room and photograph No.8 under Ex.A4 is the inside view of the room while photograph Nos.9,10 and 11 under Ex.A4 was taken by the plaintiff after construction of the room on the terrace. DW1 also admitted that photograph
Nos.14 to 18 who show the front view of the room of terrace No.1, entrance to the residential portion and the way leading to the terrace from ground floor and passage leading to the terrace. DW1 also categorically admitted that in photograph
No.23 and 24 under Ex.A4, the plaintiff is standing on the terrace. She nextly admitted that the photograph numbers 8 to 13 were taken either by the plaintiff or the persons accompanying her. DW1 has denied that she was never in exclusive possession of the terrace.
16.As discussed above, the terrace portion which is covering the entire 8 rooms admeasuring 175 sq.yards has not been assigned to any one of the children of late
B.Saraswathi exclusively except to the plaintiff under the original of Ex.A2 and therefore, the second defendant as DW1 in the absence of any documentary proof filed on her behalf, cannot claim exclusive ownership over the terrace portion of the said property to the exclusion of the plaintiff who has become its owner and possessor under the original of Ex.A2 which is the gift deed. Even the will under the Ex.A1 as per the admission of DW1 as extracted above does not confer any exclusive right over the terrace area to the legal heirs of Smt.B.Saraswathi who executed the same.
17.The second defendant as DW1 has also not filed any documentary proof to show that in the year 1997 she was staying in room No.7 under Ex.A1 along with her children as admitted by her in her cross examination. She has also not filed any documentary proof to show that after her marriage, she stayed in any one of the rooms as mentioned in Ex.A1 along with her husband. DW1 in her further cross examination has admitted that in the railway compensation case, she has filed her ration card to show her address proof and in the progress reports of her children, she has shown the address of Warasiguda in O.P.No.1616/2000 which was filed by her against her sister Bharati seeking her appointment as guardian for two children and her properties, she has shown her residential address as Jatkar Bhavan,
Chikkadpally, Hyderabad. She has also stated in her cross examination that she does not remember in the counter filed in on I.A.383/2008 on 14.10.2008, that she described that the construction as a recent one.
18.DW1 in her cross examination has categorically admitted that on 15.06.2010 in her cross examination in O.S.3690/2008, she has stated that she has not obtained prior permission from the Municipal Corporation to raise the above shed and that the disputed tin shed was raised in the month of May, 2008 and she also stated that the tin shed was laid long back. DW1 also categorically admitted in her cross examination that she cannot file any documentary proof to show that the construction over the terrace was in existence prior to 13.10.2008.
19.Another significant admission made by DW1 in her cross examination which would prove the case of the plaintiff against the defendants, is as under :
“It is true that on 22.11.2007, I have filed an objection letter to GHMC asking them not to permit any construction applied by
Smt.Jayasree. It is true that in the said letter I did not write anything with regard to the alleged structures on the terrace”
20.Therefore, from the aforesaid documentary evidence on record and in the light of the categorical admissions of the second defendant as DW1, the suit schedule property which is the terrace exclusively belongs to the plaintiff as it was gifted to her by her mother under the original of Ex.A2 and the said fact was also within the knowledge of the second defendant. For the reasons best known to her, as discussed above, the second defendant though claimed ownership over the said terrace, has not filed any documentary proof to establish her title over the same.
Even the second defendant has not placed any rebuttable evidence disputing the recitals or the signature of her husband under Ex.A12 except denying the same in her cross examination. Though it was claimed by the second defendant that the plaintiff was never in possession of the said terrace, but when the recitals under
Ex.A2 would clearly establish that the plaintiff has accepted the said gift under
Ex.A2 for which, none of the sons of Smt.B.Saraswathi who executed Ex.A2 raised any objection, the recitals under Ex.A2 deed have to be accepted which clearly demonstrate that possession of the said terrace has been delivered to the plaintiff by her mother who was the donor thereunder which was also accepted by the plaintiff as the donee.
21. As discussed above, the second defendant as DW1 admitted in her cross examination that on 22.11.2007, she filed an objection letter to GHMC asking them not to permit any construction which would be applied by the plaintiff. This admission of the second defendant as DW1 is indicative of the fact that the plaintiff has exercised her right over the suit schedule property which is the terrace as exclusive owner thereof and the second defendant has not placed any documentary proof to support her claim of ownership over the said terrace. When the categorical admission of the second defendant as DW1 that Ex.A1 does not speak of ownership right over the terrace to the beneficiaries thereunder would belie her case. The second defendant also did not place any documentary material on record that she was in exclusive possession of the said terrace prior to the year 2008 to the exclusion of the plaintiff and she was residing in one of the rooms of the ground floor of the suit schedule property ever since her marriage.
22.Merely because the second defendant has filed O.S.No.1353/2010 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, which is pending adjudication challenging the original of Ex.A2 which is a registered document, that by itself does not establish the right and title of the second defendant over the suit schedule terrace to the exclusion of the plaintiff. Though the plaintiff as PW1 is cross examined at length on behalf of the defendants No.1 and 2, but nothing is elicited in her cross examination to discredit her testimony and she has also denied a suggestion put to her on behalf of the second defendant in her cross examination on 22.06.2012 that the signatures appearing on Ex.A12 does not belong to the second defendant or her husband and that she has forged the signature of the second defendant and her husband and fabricated Ex.A12. No suggestion is also given to PW1 that she has created the original of Ex.A2 by forging the signature of her mother.
23.On behalf of the second defendant it is contended by placing a reliance on a decision reported in J.VENKATESWARLU AND OTHERS Vs. BANDARU
OMKARAIAH AND ANOTHER {2003 (3) ALT 612} that the amendment which was allowed by this court by permitting the plaintiff to add Para Nos. 8(a) to 8(d) in the plaint is impermissible which pertain to recovery of possession of the suit schedule property and that by itself shows that the plaintiff is not in possession of the suit schedule property. Learned counsel by placing reliance on this decision has contended that the amendment ought not to have been allowed by court by permitting the plaintiff to amend the plaint by incorporating the relief as it would change the nature of the suit, more particularly, in the light of the dismissal of
I.A.No.383/2008 by the court holding that the plaintiff is not in possession of the suit schedule property. However, though there is no dispute to the ratio laid down in the decision relied upon by the learned counsel for the second defendant,, but the same does not apply to the factual matrix of the present case, since the order passed in I.A.No.87/2009 dated 22.03.2010 by allowing the said amendment has become final and no material is placed before this Court to show that any appeal or revision is filed by the second defendant assailing the said order. Moreover, as held by the Hon'ble Supreme Court in a decision reported in PREETHI PAL
SINGH AND ANOTHER Vs. AMRIK SINGH AND OT HERS {(2013) 9 SCC
576}, which is relied upon by the learned counsel for the plaintiff, that amendment of pleading under Order 6 Rule 17 of CPC once allowed and incorporated, relates and goes back to the date of initial institution of the suit. However, the Hon'ble
Supreme Court has also held in this decision that this general rule is subjected to the restrictions if any, imposed by the court. However, there is nothing on record to suggest that any restrictions are imposed by the Court in this regard, while passing order on 22.03.2010 in I.A.No.87/2009 while allowing the amendment and as such, the said amendment relates back to the date of the institution of the suit and therefore, it cannot be said that the plaintiff is not entitled for the relief claimed by way of the said amendment.
24.It is also contended on behalf of the second defendant by placing reliance on a decision reported by the Hon'ble Supreme Court in KRIPAL KAUR Vs
JITENDER PAL SINGH {AIR 2015 SC 2967} that gift deed which is filed by the plaintiff under Ex.A2 has not been proved and as such, the plaintiff is not entitled for the relief claimed in the suit. On a careful perusal of the facts emanating from the said case, it is apparent that the gift deed which was setforth as defence, provided that physical possession of gifted property was already with the donee and therefore, only proprietory possession was being handed over to the donee and the plaintiff therein was in physical possession of some portion of the property in her independent right of her husband's share and therefore, the Hon'ble
Supreme Court held that in a suit for partition, execution of the said gift deed was not legally correct. The ratio laid down in the said decision, therefore, does not attract the facts of the present case, since the present suit is not for partition or that the suit schedule property is a joint family property but it was exclusive property of the mother of the plaintiff who has gifted the same in favour of her husband, her sons and the plaintiff under the original of Ex.A1 and A2.
25.It is nextly contended by the learned counsel for the second defendant by placing reliance on a decision of the Hon'ble High Court of Andhra Pradesh reported in DUDDUMPURI VENKATARAYUDU Vs. DUDDUMPUDI
RAJAGOPAL @ TOTABBAI AND ANOTHER {2012 (2) ALD 659} and also relying on a decision of Gowhati High Court reported in GOLAP BORAH AND
ANOTHER Vs. KORNESWAR BORAH @ KARNESWAR AND OTHERS
{AIR 2015 GAUHATI 99} that the gift deed under the original of Ex.A2 cannot be said to have been executed by the mother of the plaintiff withher free will and consent, that delivery of the possession to the plaintiff of the property gifted therein has not been proved and no attesting witness to the original of Ex.A2 was examined and therefore, the gift deed under the original of Ex.A2 cannot be said to be validly executed. This contention of the learned counsel for the second defendant cannot be countenanced in as much as, the second defendant in her written statement has not specifically denied the execution of the original of Ex.A2 by the mother of the plaintiff but only claimed that the plaintiff was never in possession of the property gifted to her. However, since the property under the gift was only a terrace without there being any structure, symbolic possession was received by the plaintiff which is evident from the recitals under Ex.A2 and further more, the recitals under Ex.A12 would also specifically demonstrate that the husband of the second defendant also acknowledged the execution of original of
Ex.A2 by the mother of the plaintiff in her favour. Even the second defendant has failed to establish her exclusive right and title over the suit schedule property and as such, the execution of the original of Ex.A2 in the absence of any contradictory material adduced by the second defendant, cannot be doubted. These decisions therefore, have no application to the facts of the present case.
26.It is lastly contended by the learned counsel for the second defendant by placing reliance on a decision reported in TIRUMALA TIRUPATI
DEVESTHANAMS Vs. K.M.KRISHNAIAH {AIR 1998 SC 1132} that the plaintiff ought to have filed the suit within six months from the date of dispossession and the present suit is not maintainable when the title of the second defendant was subsisting over the suit schedule property. However, this decision relied upon by the learned counsel for the second defendant does not help the case of the second defendant since the plaintiff is claiming recovery of possession of the suit schedule property on the basis of her title derived by her under the original of
Ex.A2 but not on the basis of her earlier possession over the suit schedule property.
In any event, as discussed above the second defendant has not placed any material on record that she was in possession of the suit schedule property as title holder.
No documentary proof is also filed by the second defendant demonstrating her title and lawful possession over the suit schedule property and her admissions in her cross examination as extracted above as DW1 would demonstrate that she has commenced the construction work of the tin shed over the suit schedule portion only in the month of October, 2008 as she expressed her inability to file any documentary proof to show that the said tin shed was in existence over the suit schedule property prior to May, 2008. Therefore, this contention of the learned counsel for the second defendant also does not merit consideration.
27.Having regard to the aforesaid discussion and in the light of the copious evidence adduced on behalf of the plaintiff and in the light of the categorical admissions of the second defendant as D.W.1, this court holds that the plaintiff has established her lawful possession over the suit schedule property on the basis of
Ex.A2 and that the second defendant failed to establish her lawful title and possession over the suit schedule property. The plaintiff has also established by cogent and acceptable evidence that the second defendant has tresspassed into the suit schedule property in an extent of 324 sq.feet by making construction over the same.
28.The discussion made in the preceding paragraphs would demonstrably make it evident that the second defendant has trespassed into the suit schedule property in an extent of 324 sq.feet and as she has failed to establish her title and lawful possession over the said property, the plaintiff is entitled for recovery of the possession of 324 sq.feet of the suit schedule property from the second defendant.
The plaintiff has not established by way of cogent and acceptable evidence that the first defendant is in unauthorized occupation of the suit schedule property. The first defendant though in his written statement has claimed that the has transfered his share in favour of his wife though registered gift deed vide doc.No.3872 of 1993 of subregistrar's office, Chikkadpally, Hyderabad but, he has failed to placed any documentary proof on record to substantiate his claim. He also did not enter into the witness box to establish his version taken in the written statement.
29.Learned counsel for the second defendant by placing reliance on a decision of the Hon'ble Supreme Court reported in THAMMA VENKATA SUBBAMMA
(DEAD) BY L.R. Vs. THAMMA RATTAMMA AND OTHERS {AIR 1987
SUPREME COURT 1775} has contended that gift of undivided share by co parcener is void and therefore, gifting of the suit schedule property under the original of Ex.A2 by the mother of the plaintiff in favour of the plaintiff is void and the plaintiff cannot derive any title over the suit schedule property. However, this decision also does not apply to the factual matrix of the present case, since it is an admitted fact that the suit schedule property is the self acquired property of the mother of the plaintiff. The second defendant also has not taken a plea that the suit schedule property forms part of the coparcener property. Moreover, even in Ex.A1 and Ex.A2 it is specifically mentioned that the said property was the self acquired property of Smt.B.Saraswathi who was a retired Medical Officer and she executed the said documents as absolute owner thereof. Therefore, in the absence of any material adduced by the defendants to establish that the suit schedule property is a joint family property, execution of the originals of Ex.A1 and A2 by the mother of the plaintiff who is the exclusive owner of the same cannot be characterized as invalid or against law. Hence, this contention advanced on behalf of the second defendant is rejected. Further more, since the suit is filed seeking the recovery of possession on the basis of title, the limitation period is 12 years in terms of Article 65 of the Limitation Act as held in a decision of the Hon'ble High Court of Andhra
Pradesh reported in ASHOK KUMAR Vs. GANGADHAR {2007 (2) ALD 313}.
30.Therefore, issue Nos. 1 to 4 are answered in favour of the plaintiff and against the defendants.
31. Issue No.5:The plaintiff though claimed mesne profits @ Rs.10,000/ per month from the second defendant from the date of the suit till the date of actual delivery of the physical possession of the property measuring 324 sq.feet but has failed to adduce any oral or documentary evidence on record in support of her claim to demonstrate that the said extent of 324 sq.feet would fetch the monthly rent of Rs.10,000/ towards mesne profits as claimed by her. Therefore, the plaintiff is not entitled for this amount in the absence of any proof to substantiate her claim in this regard.
32.Issue No. 6: In the result, the suit is decreed with costs in favour of the plaintiff and against the defendants by granting a perpetual injunction restraining them from raising any construction on the first floor (ground floor open terrace measuring 174 sq.yards) covered by portion of the premises bearing municipal
No.11213 situated at Chikkadpally, Hyderabad and they are restrained from interfering with the possession of the plaintiff over the said property. The second defendant is directed to deliver physical possession of the suit schedule property measuring 324 sq.feet along with the construction therein to the plaintiff as per the plan annexed to the suit within a period of 2 months form today, failing which, the plaintiff is entitled to recover the said property by following due process of law.
The claim of the plaintiff against the second defendant for mesne profits is dis allowed.
Dictated to the Personal Assistant, typed by her, corrected and pronounced
by me in the open court on this the 10th day of June, 2016.
V Senior Civil Judge,
City Civil Court:Hyderabad
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:For Defendant: PW1: Smt.K.Jayashree DW1: B.Nagarajamani
DOCUMENTS MARKED
For Plaintiff: Ex.A1 is the certified copy of registered will dt.10.10.1981. Ex.A2 is the certified copy of the gift deed dt.07.05.1982. Ex.A3 is the office copy of the complaint to the Municipal Corporation dt.10.10.2008. Ex.A4 are the photographs along with CD (33 Nos.). Ex.a5 is the DVD showing the suit schedule property. Ex.A6 is the certified copy of the notice dt.15.10.2008. Ex.A7 is the certified copy of the plaint in O.S.No.3690 of 2008. Ex.A8 is the certified copy of the written statement filed by GHMC in O.S.3690 of 2008. Ex.A9 is the letter dt.17.08.1988 by D2 to the plaintiff. Ex.A10 is the letter dt.15.12.1998. Ex.A11 is the postal cover under which Ex.A10 was received. Ex.A12 is affidavit of B.Ramchandrachari. Ex.A13 is copy of complaint given to Commissioner, MCH, Hyderabad.
For Defendants : Nil
V Senior Civil Judge,
City Civil Court:Hyderabad
Order Record 1,742 total
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|---|---|---|---|---|
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Frequently Asked Questions
How many cases has DR. SUNNAM SRINIVAS REDDY handled?
DR. SUNNAM SRINIVAS REDDY has handled 1831 court orders since 2015 at HYD, City Civil Court Complex. The average disposal rate is 18 orders per month.
What types of cases does DR. SUNNAM SRINIVAS REDDY hear?
Based on available records, DR. SUNNAM SRINIVAS REDDY primarily handles Civil matters (Original Suits, Execution Petitions) and Motor Accident matters (Motor Accident Claims) at HYD, City Civil Court Complex.
Where is DR. SUNNAM SRINIVAS REDDY currently posted?
DR. SUNNAM SRINIVAS REDDY is posted as II ADDITIONAL CHIEF JUDGE at HYD, City Civil Court Complex, Hyderabad, Telangana.
Are judgments by DR. SUNNAM SRINIVAS REDDY available online?
Yes. 38 judgments by DR. SUNNAM SRINIVAS REDDY are available on Legistro with full text, outcome, and sections cited.
How fast does DR. SUNNAM SRINIVAS REDDY dispose cases?
DR. SUNNAM SRINIVAS REDDY disposes approximately 18 cases per month, based on 1831 orders handled over their tenure at HYD, City Civil Court Complex.
Since when is DR. SUNNAM SRINIVAS REDDY serving?
DR. SUNNAM SRINIVAS REDDY has been serving at HYD, City Civil Court Complex since 2015.
Case Types
Posting History
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Nov 2023 — Apr 2024II ADDITIONAL CHIEF JUDGE · 352 orders
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May 2022 — Jul 2022XXV ADDL CHIEF JUDGE
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May 2022 — Nov 2023XXVI ADDITIONAL CHIEF JUDGE · 824 orders
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Jun 2018 — Feb 2019I SENIOR CIVIL JUDGE · 188 orders
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May 2017 — Feb 2019XVII ADDL SENIOR CIVIL JUDGE · 79 orders
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May 2017 — May 2018I SENIOR CIVIL JUDGE · 252 orders
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Nov 2016 — Apr 2017V SENIOR CIVIL JUDGE · 52 orders
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Aug 2016 — Sep 2016IV SENIOR CIVIL JUDGE
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Jul 2016 — Oct 2016V SENIOR CIVIL JUDGE · 20 orders
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Jun 2016 — Jun 2016V SENIOR CIVIL JUDGE
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Jan 2016 — Feb 2016I SENIOR CIVIL JUDGE
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Nov 2015 — Jun 2016V SENIOR CIVIL JUDGE · 64 orders
Outcomes on Record
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