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IN THE COURT OF THE III ADDL.SENIOR CIVIL JUDGE:
KAKINADA
PRESENT: SMT. T.MALLESWARI,
III ADDL. SENIOR CIVIL JUDGE, KAKINADA
FRIDAY, THE 24TH DAY OF JANUARY, 2020
O.S.NO.784/2014
Between:-
Smt Gorrela Kavitha, W/o.Naga Bhaskara Rama Venkata Rao @ Srinu, age 32 years, Housewife, R/o.Pepakayala Palem village, Karapa Mandal.
… Plaintiff
And
1.Smt Yalla Baby, W/o.Govindu, age 35 years, Housewife, Near Anjaneyaswamy Temple, Kajuluru village, Kajuluru Mandal.
2.Smt Achanta Bhavani, W/o.Srinu, Hindu, age 30 years, Housewife, R/o.Main Road, Pepakayalapalem, Karapa Mandal. … Defendants
The suit is coming before this court on 10-12-2019 for final hearing in the presence of Sri A.Venkatesh, Advocate for the Plaintiff and of Sri C.V.V.Satyanarayana, Advocate for Defendants and the matter having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1.The suit is filed (a) to declare as dead that the plaintiff’s husband Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu who have been missed from the last 9 years, leaving the plaintiff as his only legal heir.
(b) to pass a permanent injunction restraining the defendants not to interfere with the peaceful possession and enjoyment over the plaint schedule property.
(c) to grant costs of the suit.
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2.The averments of plaint in succinctly are as follows.
The plaintiff is daughter of Duba Venkata Rao and she got married with Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu who is brother of defendants 1 and 2. The marriage of the plaintiff is an arranged marriage and performed on 18-06-2005. Both the plaintiff and the said Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu lived together after the marriage. The husband of the plaintiff Gorrela Naga
Bhaskara Rama Venkata Rao @ Srinu purchased the plaint schedule property through registered sale deed dt.26-08-2004 under document no.3186/2004 of S.R.O., Tallarevu. Since then the husband of the plaintiff and after the marriage the plaintiff along with her husband are enjoying the property with absolute rights. The plaintiff and her husband are not blessed with any children. Mother in law and father in law of the plaintiff died long back.
3.The plaintiff further submits that after the Aashadam, the plaintiff along with her husband went to her in-laws house and staying there for some days. While so, on 25-09-2005, the plaintiff’s husband
Gorrela Naga Bhaskara Rama Venkata Rao went out from the house stating that he is going to marriage function and after that he did not return to the plaintiff till now. The plaintiff, her in laws and relatives searched for the husband of the plaintiff but in vain and they could not trace the plaintiff’s husband at anywhere. Then the plaintiff gave a police report to the concerned police in Karapa P.S., as a man missing case. The police registered the report of the plaintiff in Cr.No.119/2009 on 01-10-2009. The police investigated the matter and issued a notice to the plaintiff stating that the husband of the plaintiff was undetectable and closed the crime and the said endorsement served on 3 the plaintiff on 31-12-2011. Since missing of the plaintiff’s husband, the plaintiff came to her parents house and living with them. The plaint schedule property which is in the name of plaintiff’s husband is devolved to the plaintiff as his only legal representative to her missing husband. Hence the plaintiff is the only legal heir to her husband
Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu.
4.The plaintiff further stated that the defendants trying to grab the plaint schedule property by disturbing the possession of the plaintiff forcibly and trying to take over the plaint schedule property by saying that the plaint schedule property belongs to the brother of defendants 1and 2 which they do not have any right. The defendants have no right, title or interest over the plaint schedule property. The plaintiff has been in possession and enjoyment of the plaint schedule property since from the date of her husband missing. Hence the plaintiff has no option except to file the suit for declaration that the plaint schedule property devolved upon her as she is the legal heir of
Gorrela Naga Bhaskara Rama Venkata Rao who have been missing from last 9 years and consequential injunction against the defendants not to interfere with the peaceful possession and enjoyment over the plaint schedule property by the plaintiff.
5.Defendants 1 and 2 in their written statement denied the material allegations made in the plaint and submitted that plaintiff is not the wife of Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu. The plaintiff married K.Mahesh Babu, S/o.Ramarao of Guntur and her name is Kanakaratnam and she married on 25-02-2015 at Annavaram. The plaintiff also blessed with one male child through her husband Mahesh
Babu at Ramya Hospital, Kakinada on 19-12-2015. The plaintiff 4 suppressed the real facts and circumstances and filed the suit. She is not the Legal heir of Gorrela Naga Bhaskara Rama Venkata Rao. The defendants father Gorrela Surya prakasarao purchased the plaint schedule property in the name of his son Gorrela Naga Bhaskara Rama
Venkata Rao. So as per the Hindu law, the plaintiff is not entitled to declare as legal heir to Gorrela Naga Bhaskara Rama Venkata Rao @
Srinu.
6.The defendants further submit that the name of the 1st defendant is Yalla Ananthalakshmi, W/o.Govindaraju. As such the plaintiff given the name of 1st defendant wrongly. She is the elder sister of Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu. 2nd defendant is younger sister to him. The husband name of 2nd defendant is Sathiraju but not Srinu. The plaintiff’s name is not Gorrela Kavitha, her name is
Smt K.Kanakaratnam. On 21-07-2010, the plaintiff executed consent letter stating that she will not marry again, if she marries, she will leave the property and hand over the same to Gorrela Surya prakasarao. She married again one K.Mahesh Babu and as such, the plaintiff herself has given up her right over the estate of Gorrela Surya
Prakasa Rao. The plaintiff never issued any legal notice prior to filing of the suit. There is no cause of action for the suit. Hence the defendants prayed to dismiss the suit with costs.
7.Basing on the above pleadings, the following issues have been settled for trial by my learned predecessor.
1. Whether the plaintiff is entitled for declaration that her husband Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu as dead?
2. Whether the plaintiff is entitled for permanent injunction 5 against the defendants as prayed for?
3. To what relief?
8. Since the issues framed are not sufficient for the relief claimed by the plaintiff, the following Additional Issue has been framed.
ADDITIONAL ISSUE:
1.Whether the plaintiff is entitled to declare that she is the only legal heir of her husband Gorrela Naga Bhaskara Rama Venkata
Rao?
9.To substantiate the case of the plaintiff, the plaintiff herself was examined as P.W.1 and got marked Ex.A.1 and A.2. On behalf of defendants, the 1st defendant was examined as D.W.1, the husband of the 2nd defendant was examined as D.W.2 apart from D.W.3 to D.W.5 and got marked Ex.B.1
10.Heard both sides. Perused the written arguments filed by both sides. Perused the record.
11.Since the issue no.1 and additional issue are interrelated to each other, these two issues are discussed under one common head.
ISSUE NO.1 AND ADDITIONAL ISSUE:
12.It is the case of the plaintiff that she is the legally wedded wife of Gorrela Naga Bhaskara Rama Venkata Rao, having performed her marriage with him on 18-06-2005. Her husband Gorrela Naga
Bhaskara Rama Venkata Rao purchased the plaint schedule property under registered sale deed dt.26-08-2004 under document
No.3186/2004. Since the date of purchase, the husband of the plaintiff and after the marriage, the plaintiff along with her husband are in possession and enjoyment of plaint schedule property with absolute rights. On 25-09-2005, the plaintiff’s husband Gorrela Naga Bhaskara 6
Rama Venkata Rao went out from the house and after that, he did not return till now. The search made by the plaintiff, her in laws and relatives of her husband are in vain and they could not trace the plaintiff’s husband. The plaintiff gave a police report to Karapa P.S., and the same was registered as Cr.R.No.119/2009 on 1-10-2009 and after investigation, the police issued a notice to the plaintiff stating that the husband of the plaintiff was undetectable and closed the crime and the said enforcement is served on the plaintiff on 31-12-2011. The mother in law and father in law of the plaintiff died long back. Hence the plaintiff is the only legal heir to her husband Gorrela Naga Bhaskara
Rama Venkata Rao. The defendants who are the sisters of her husband
Gorrela Naga Bhaskara Rama Venkata Rao are trying to grab the plaint schedule property without having no right, title or interest over the plaint schedule property. Hence the present suit.
13.On the other hand, the case of the defendants is that the plaintiff is not the wife of their brother Gorrela Naga Bhaskara Rama
Venkata Rao. The plaintiff is the wife of one K.Mahesh Babu and the plaintiff married him on 25-02-2015 at Annavaram temple and the plaintiff also blessed with one male child through her husband
K.Mahesh Babu. Hnece the plaintiff is not the legal heir of Gorrela Naga
Bhaskara Rama Venkata Rao. The plaint schedule property purchased by their father Gorrela Surya Prakasharao in the name of plaintiff’s husband Gorrela Naga Bhaskara Rama Venkata Rao. Hence the plaint schedule property is the ancestral property of Gorrela Surya Prakasa
Rao.
14.It is further case of the defendant that on 21-07-2010, the plaintiff executed consent letter stating that she will not marry again, if 7 she marries, she will leave the property and hand over the same to
Gorrela Surya Prakasarao. The plaintiff again married to K.Mahesh
Babu and as such the plaintiff herself has given up her right over the estate of Gorrela Surya Prakasa Rao. Hence the plaintiff is not entitled for the reliefs claimed in the suit.
15.The learned counsel for the defendants filed written arguments stating that the plaintiff is not at all entitled to declare herself as legal heir of Gorrela Naga Bhaskara Rama Venkata Rao. The plaintiff married one K.Mahesh Babu and their marriage was solemnized at Annavaram, E.G.District and the plaintiff was blessed with one male child through her husband. The plaintiff has suppressed the real facts and filed the present suit to have wrongful gain. As per
Ex.B.1, the plaintiff would not claim any right over the plaint schedule property. The plaintiff never in possession and enjoyment of plaint schedule property at any point of time. By virtue of her marriage with
K.Mahesh Babu, she cannot be treated as legal heir of Gorrela Naga
Bhaskara Rama Venkata Rao.
16.The learned counsel for the plaintiff filed reply arguments for the written arguments of the defendants stating that all the defendants stating that there is no dispute about the missing of the husband of the plaintiff in the year 2005 and from 2005, seven years lapsed by 2011. The defendants did not claim a particular date of death of the husband of plaintiff. There is no denial or claim of the particular date by the defendants. The succession automatically starts after lapse of seven years of date of missing as per the provisions of section 108 of
Indian Evidence Act. Even according to the defendants, the plaintiff got her 2nd marriage on 25-02-2015 and that the 2nd marriage was 8 performed after 10 years of the missing of plaintiff’s husband. Hence the succession starts in the year 2011. The plaintiff was not married by that time and she got married in the year 2015 i.e., after 10 years of missing and after 4 years of lapse of 7 years. The right of female over property is under the provisions of section 24 of Hindu Succession Act.
Section 24 of Hindu Succession Act:
Certain widows remarrying may not inherit as widows: Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a predeceased son or the widow of a brother shall not entitled to succeed the property of the intestate as such widow, if on the date of succession opens, she has remarried.”
17.Admittedly, the property is in the name of plaintiff’s husband and even according to the defendants there are no children to the plaintiff through her first husband. There is no evidence adduced on behalf of the defendants to show that the father of the defendants
Gorrela Surya Prakasa Rao purchased the property in the name of his son Gorrela Naga Bhaskara Rama Venkata Rao and the defendants did not even cross examine the plaintiff to that effect. Hence the plea of
Binami transaction is not proved by the defendants. Even Ex.B.1 document is marked as Angeekarapatram, the text of the document clearly shows that there will be a transfer of the property in future if the plaintiff got remarried. The property refereed in the document is landed property of an extent of one Acre which will be the value of more than Rs.100/-. Hence the document is compulsorily registrable document. A document which is compulsory registration is required and not registered it she shall not have any value to treat as evidence to 9 decide the title of the property in favour of the person claims through it. The plaintiff is not admitting the execution of Ex.B.1 document. Even for assumption relating to the contents of Ex.B.1, the evidence of defendants witnesses is not correlating with each other. Even if considering the execution of the document, the document is executed in the year 2010 and the father of the defendants died on 03-11-2010.
The 2nd marriage of the plaintiff is in the year 2015. The defendants as legal heir of their father claiming the property through Ex.B.1. But till now they did not initiate any action against the plaintiff to revert the property to them after performing the conditions of Ex.B.1. Hence the plaintiff proved her case beyond all reasonable doubts and the suit may be decreed in favour of the plaintiff and against the defendants.
18.In the cross examination of P.W.1 it is elicited that “her
husband left the house in the last week of Sravanamasam of the
year 2005. Herself and her husband lived together for three
months. The plaint schedule property is self acquired property
of her husband. She married one Mahesh Babu and they begot a
son.” It is the contention of the defendants that the plaintiff got remarried to one K.Mahesh Babu in the year 2015 and had a son through her second husband K.Mahesh Babu. Hence the plaintiff has no right over plaint schedule property in view of her second marriage. In the cross examination of D.W.1, it is elicited that “originally the
plaintiff was the wife of her younger brother but not now. The
plaintiff married to her brother on 18-06-2005. His whereabouts
are not known from September, 2005. The plaintiff and her
younger brother have no issues from their wedlock. The where
abouts of her younger brother are not known. By the time of
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death of her father, the plaintiff has not married to one Mahesh
Babu.” From the evidence of both sides, the court is inferred that the plaintiff got remarried to one K.Mahesh Babu in the year 2015 and the plaintiff begot one male child through her 2nd husband K.Mahesh Babu.
Since the 2nd marriage of the plaintiff with K.Mahesh Babu is not disputed by the plaintiff, it can be safely concluded that the plaintiff got remarried to K.Mahesh Babu in the year 2015. Ex.A.1 shows that the husband of the plaintiff Gorrela Naga Bhaskara Rama Venkata Rao purchased the plaint schedule property under registered sale deed dt.26-08-2004. From Ex.A.1, it is clear that the plaint schedule property is the self acquired property of the plaintiffs husband Gorrela
Naga Bhaskara Rama Venkata Rao. The contention of the defendant is that the father in law of the plaintiff’s husband Gorrela Surya Prakasa
Rao purchased the plaint schedule property in the name of plaintiff’s husband Gorrela Naga Bhaskara Rama Venkata Rao who is his son and therefore, Ex.A1 transaction is a binami transaction. However, there is no evidence on record to establish that the father in law of the plaintiff
G.Surya Prakasa Rao purchased the plaint schedule property in the name of plaintiff's husband Gorrela Naga Bhaskara Rama Venkata Rao and that Ex.A.1 is a binami transaction. It is a settled principle of law that mere pleading without evidence is of no use. Therefore, the defendants failed to establish that the plaint schedule property is self acquired property of G.Surya Prakasa Rao who is the father in law of the plaintiff and he purchased the said property in the name of his son who is the husband of the plaintiff Gorrela Naga Bhaskara Rama
Venkata Rao.
19. On the other hand, from Ex.A.1 it is evident that the plaint 11 schedule property is self acquired property of plaintiff’s husband
Gorrela Naga Bhaskara Rama Venkata Rao. D.W.1 in her cross examination stated that “even now the property is in the name of
her younger brother Gorrela Naga Bhaskara Rama Venkata Rao.
The title deed to the plaint schedule property is in the name of
her younger brother Gorrela Naga Bhaskara Rama Venkata Rao.
Her husband is cultivating the said land. The plaintiff gave
report to the police about missing of her younger brother
Gorrela Naga Bhaskara Rama Venkata Rao”
20.In the cross examination of D.W.3 it is elicited that “by the
time of execution of the document Surya Prakasa Rao was in
possession of the land and after execution of the document the
possession was delivered to the plaintiff.” From the admission of
D.W.1 and D.W.3, it is clear that the title deed to the plaint schedule property stands in the name of the younger brother of D.W.1 and husband of the plaintiff Gorrela Naga Bhaskara Rama Venkata Rao, and the plaint schedule property stands in the name of her younger brother Gorrela Naga Bhaskara Rama Venkata Rao and that plaintiff is in possession and enjoyment of the plaint schedule property. If at all the contention of the defendants that the plaint schedule property was purchased by the defendants father G.Surya Prakasa Rao in the name of his son Gorrela Naga Bhaskara Rama Venkata Rao is true the defendants ought to have taken legal steps claiming their right and title over the plaint schedule property. But no such steps were taken by the defendants. Further as stated by D.W.1, no documentary proof such as
Adangal to prove that her husband is cultivating the plaint schedule property.
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21.D.W.2 in his cross examination stated that “the husband
of plaintiff Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu is
his brother in law. The marriage of the plaintiff with his brother
in law was solemnized on 18-05-2005. From 25-09-2005 his
brother in law Gorrela Naga Bhaskara Rama Venkata Rao where
abouts are not known. On 01-10-2009 the plaintiff gave report
to the police about missing of her husband and the police
unable to trace him. The marriage of the plaintiff with K.Mahesh
Babu was performed on 25-02-2015 at Annavaram. After
missing of his brother in law, the plaintiff married Mahesh
babu.” From the evidence of D.W.1 and D.W.2, it is clinchingly established that the marriage of the plaintiff was performed with
Gorrela Naga Bhaskara Rama Venkata Rao on 18-05-2005 and the plaintiff’s husband whereabouts are not known since from the 25-09- 2005. The plaintiff gave police report about the missing of her husband in the year 2009 and the same was registered as Cr.No.119/2009 in
Karapa P.S. Thereafter, in the year 2015, the plaintiff got remarried to one K.Mahesh Babu.
22.Ex.A.2 clinchingly shows that the plaintiff gave report to
Karapa police about the missing of her husband Gorrela Naga Bhaskara
Rama Venkata Rao on 1-10-2009. Though the plaintiff stated that after investigation, police issued endorsement to her on 31-12-2011 stating that her husband was undetectable and closed the case, the plaintiff did not file the said endorsement given to her by the Karapa police dt.31-12-2011. But from the evidence of D.W.1 and D.W.2, it is clearly established that the plaintiff gave a report to Karapa Police about the missing of her husband and after investigation, the police unable to 13 trace him. Since there is no dispute with regard to giving of police report by the plaintiff with regard to missing of her husband, in Karapa
P.S., on 1-10-2008 and closing of the said case as undetectable is undisputed by the defendants, it can be safely concluded that since 25- 09-2005, the where abouts of the plaintiff's husband are not known and thereafter, he was not seen by anybody. At this juncture it is pertinent to mention section 108 of Indian Evidence Act.,
Section 108 of Indian Evidence Act: Burden of proving that
person is alive who has not been heard of for seven years:
Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
23.If the plaintiff’s husband is alive, the plaintiff and defendants have chances to naturally have heard of him. The defendants did not raise any defense that the plaintiff's husband is alive or date of the a particular date. If a person is not heard of 7 years by those who would naturally have heard of him if he had been alive, it can be presumed that the said person is dead and the burden of proof that the said person is alive is on the person who affirms it. Hence the date of death of plaintiff’s husband can be taken after lapse of 7 years of his missing i.e., from the month of September 2005 and 7 years period was lapsed by the year 2011. Hence the succession starts in the year 2011. As admitted by D.W.1 and D.W.2, the 2nd marriage of the plaintiff was in the year 2015 and the plaintiff was not married by the date when succession starts. Even according to the defendants, there are no children to the plaintiff through her husband Gorrela Naga 14
Bhaskara Rama Venkata Rao.
Section 14 of Hindu Succession Act says as follows:
Property of a female Hindu to be her absolute property:-
(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner.
Explanation: In this sub-section “property” included both moveable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or evertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately
before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument of under a degree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the degree, order or award prescribed a restricted estate in such property.
24.Therefore, even according to Section 14 of Hindu
Succession Act, the plaint schedule property got by the plaintiff by inheritance after her marriage being the only legal heir of her husband.
Hence the plaint schedule property becomes the absolute property of the plaintiff.
25.The learned counsel for the plaintiff relied upon judgment reported in 2008 (2) ALT 8 (SC) between Cherotte Sugathan 15
(died) per LR’s and others Vs Cherotte Bharathi and others
where in it is held that “plea taken that widow is not entitled to her husband’s share after remarriage under Widow’s Remarriage Act of 1856. It is held that section 2 of Widow’s Remarriage Act of 1856 would not prevail over provisions of Hindu Succession Act of 1956 having regard to Sections 4 and 24 thereof in view of overriding effect of section 4 of 1956 Act. Succession opened on 2-8-1976 on the death of her husband she became absolute oner on that date by reason of inheritance from her husbands in terms of Section 14(1) of Succession
Act, 1956 widow remarried only on 12-02-1979 after succession opened. Remarriage after vesting of property in her absolutely by succession not a ground disentitiling her to her husband’s share in the property under section 24 of Succession Act.”
26.The learned counsel for the defendants relied upon decisions reported in AIR 2006 SUPREME COURT 1993 between
Sharad Subramanyan Vs Soumi Mazumdar and others wherein it was held that “property given to female by her deceased husband by making will. No material to indicate that property was given in lieu of her right of maintenance. Even in terms of Will she had right of enjoyment in respect of entire property.”
27.The decision relied upon by the defendants is not applicable to the present facts on hand, since it is not the case of the defendants that the property was given to the plaintiff in view of her maintenance.
Therefore, the facts on hand are entirely different from the facts in the decision relied upon by the defendants. Therefore, the defendants failed to establish that the plaintiff has no right of inheritance over the plaint schedule property being the legal heir of her 1st husband Gorrela 16
Naga Bhaskara Rama Venkata Rao.
28. The another contention of the defendants is that on 21-07- 2010, the plaintiff executed consent letter stating that she will not marry again and if she remarries, she will leave the plaint schedule property and hand over the same to her husband’s family members.
Since the plaintiff married again to one K.Mahesh Babu as such the plaintiff herself has given up her right over the plaint schedule property.
In support of the defendants contention, Ex.B.1 is marked though the nomenclature of the Ex.B.1 is mentioned as consent letter, but on the perusal of the contents of Ex.B.1, it shall be termed as relinquishment deed. The learned counsel for the plaintiff took an objection on consent deed dt.21-07-2010 when it was confronted to PW.1 stating that the said document is not a consent deed but recitals of it are of relinquishment deed. After payment of stamp duty and penalty, the defendants got marked Ex. B.1. On perusal of Ex.B.1, the recitals of it are in the nature of relinquishment deed but it is not a consent deed. At thus juncture, it is pertinent to mention section 17 of Indian
Registration Act.,
SECTION 171 OF INDIA REGISTRATION ACT
Documents of which registration is compulsory:- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian
Registration Act, 1866 or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877 or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property:
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future; any right, title or interest, whether vested 17 or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation,d declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property;]
(e) non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property:]
(f) any decree or order or award or a copy thereof passed by a civil court, on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under Section 35 of the Indian Stamp Act, 1899, such as registered title deed produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property; and
(g) agreement of sale of immovable property of the value of one hundred rupees and upwards;]
29.Ex.B.1 document is alleged to be written by the plaintiff in favour of her father in law to relinquish her right over the plaint schedule property if she remarries. Therefore, Ex.B.1 document is a relinquishment deed and the same shall be compulsorily registrable document as per section 171 of Indian Registration Act. A document which is compulsorily registered and if it is not registered it shall not have any evidentiary value. Therefore, Ex.B.1 which is not registered document cannot be used against the plaintiff for want of its 18 registration. Therefore, the defendants cannot be relied upon Ex.B.1 to declare their title over the plaint schedule property through which they are claiming their right over the plaint schedule property.
30.Further, in the cross examination of PW.1, she categorically denied the execution of Angeekarapatram by her in favour of her father in law by mentioning that for any reason if she remarries, her property right will be relinquished in favour of her in laws. When the plaintiff is denying the execution of Ex.B.1 and her alleged signature on Ex.B.1 the burden is on the defendants to prove the execution of Ex.B.1 by the plaintiff. But the defendants did not take steps to prove the execution of Ex.B.1 by the plaintiff and the alleged signature of plaintiff on
Ex.B.1. For this reason also, the defendant failed to establish the execution of Ex.B.1 document by the plaintiff in favour of her father in law.
31.D.W.1 in her cross examination stated that “she does not
know personally whether the plaintiff signed on Ex.B.1 or not”
D.W.2 in his cross examination stated “he knows to some extent the
contents of Ex.B.1. Total six persons signed on it. The scribe
belongs to Karapa Village. After he signed they all signed. He
knows the names of some of them who signed on Ex.B.1.
Madduri Suryanarayana, Chodapindi Govindu, Duvva Srinu and
himself are among them and he does not know the names of
remaining persons.”
32.D.W.3 In his cross examination stated that “after missing
of the husband of the plaintiff a Panchayat was raised between
the plaintiff and the defendant. In the said Panchayat himself
and nine elders acted as elders. In the panchayat the
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defendants told the plaintiff that she can take Ac.0-50 cents out
of one acre of land of her husband and the plaintiff can remarry,
but the plaintiff insisted for one acre and then it was decided
that she shall give 10 bags paddy to her father in law for his
maintenance by retaining one acre of land and in case if she
remarries, the said one acre has to be given to the legal heirs of
her father in law. The documents were reduced into writing at
the house of the scribe called as Dattudu. Ch.Govindu,
Bogireddy Kondala Rao, himself, S.Prasad, the elder brother of
the plaintiff, Duba Srinivas, Achanta Sathiraju (D.W.2) signed
as witnesses. They all the elders together got prepared the
document through the scribe. All the elders together gave
instructions.”
33.In the cross examination of D.W.4 it is elicited that “he is a
document writer but he is not a licensed document writer. He
has been writing the documents since more than 25 years. He is
aware of the stamp duty and the procedure for registration.
When there is a recital regarding re-conveyance of the property,
it required stamp duty and registration. He did not inform the
parties that the document (Ex.B.1) requires registration. Surya
Prakasa Rao (father in law of the plaintiff), his daughter in law
(plaintiff) and several others came and informed the conditions
arrived between them and Surya Prakasa Rao, requested him to
write the document. On the date of the said document only,
they came to him but they did not give any information prior to
that date. In Ex.B.1, the names of the elders and that it is
determined before the said elders is not mentioned in Ex.B.1.”
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34.D.W.5 is the alleged 1st attestor of Ex.B.1. D.W.5 in his chief examination stated that he is a document writer at Kakinada. The signature of the 1st attestor on Ex.B.1 document is not his signature and he does not know about Ex.B.1 document. D.W.5 was summoned by the defendants and he expressed his ignorance about Ex.B.1 document and he denied his signature as 1st attestor for Ex.B.1 document, If really D.W.5 acted as 1st attestor to Ex.B.1 document what would be the necessity for him to depose that he did not know that he did not know about Ex.B.1 document and denial of his signature
as 1st attestor of Ex.B.1 document, that too when he was summoned by
the defendants.
35.According to the evidence of D.W.3, Ch.Govindu, Bogireddy
Kondala Rao, himself, S.Prasad, the elder brother of the plaintiff, Duba
Srinivas and D.W.2 together got prepared Ex.B.1 document through the scribe Dattudu and all the elders together gave instructions to prepare
Ex.B.1 document. According to the evidence of D.W.4, he is the scribe of Ex.B.1. But as per the evidence of D.W.2 and D.W.3 the name of scribe of Ex.B.1 is Dattudu. Therefore, there is no consistency in the evidence of DW.2 to D.4 with regard to the name and the person who scribed Ex.B.1. Therefore, the name and identity of the scribe of Ex.B.1 are not established by the defendants. If really, Ex.B.1 was prepared on the instructions given by all the above said persons, then the evidence of D.W.4 must be on the same lines and the said fact must have been reflected in Ex.B.1. But contrary to the evidence of D.W.3, D.W.4 stated that the plaintiff's father in law requested him to write the document.
He did not state the names of the other persons who came to him and informed the conditions to scribe Ex.B.1 document either in his chief 21 examination affidavit or in his cross examination. Therefore, the discrepancy in the evidence of D.Ws 1 to 5 makes the case of the defendants about the alleged execution of Ex.B.1 document highly doubtful and unreliable.
36.The learned counsel for the defendant relied upon decision reported in 2014(1) ALT 700 between Uppala Ramesh Vs
Elagandula Harinath and others wherein it is held that “admissibility of document styled as house sale deed evident treating it as not a conveyance. The said document sought to be marked during interlocutory proceedings for interim injunction. Application filed by revision petitioner/D.3 raising objection or its marking on the ground of insufficiency of stamp duty. The lower court dismissed the application taking the view that the document is a mere affidavit and not a conveyance and that therefore, ti does not require any stamp duty.
Hence the revision petition. In the revision it is held that the disputed document styled as sale affidavit intends to record a pass transaction executed on 1-11-1994 on stamp paper worth Rs.50/-. The transaction referred to therein is a sale deed in the sense, a white paper document, dt.13-06-1994 without stamp duty and registration such a document will not convey any title to the purchase thereunder. The document being unstamped, any further document which is in the nature of recording the previous transaction has to be stamped with the stamp duty as payable under the original document. Further, even if the deficit stamp duty or penalty are paid, it can be marked in evidence only to collateral purpose under the provision of section 49 of
Registration Act., and it cannot be received in proof of terms and contents of that document since the said document is compulsorily 22 registrable under section 17 of Registration Act.”
37.The above decision relied upon by the defendants is in favour of the plaintiff and against to the defendants. Even it is the contention of the plaintiff that Ex.B.1 document which is a compulsorily registrable document even though stamp duty and penalty was paid, it cannot be received in proof of contents of the said document for want of its registration under section 17 of Registration Act. Therefore, the decision relied upon by the defendants supports the case of the plaintiff.
38.From the foregoing discussion in the preceding paragraphs, this court is of considered view that the plaintiff is the only legal heir to her 1st husband Gorrela Naga Bhaskara Rama Venkata Rao as on the date of succession opens in the year 2011 (taken from the date of missing of plaintiff's husband i.e., from 25-09-2005, 7 years lapsed by the year 2011) and that she did not remarry on that date. Hence the plaintiff is entiteld to declare that her husband Gorrela Naga Bhaskara
Rama Venkata Rao is dead and she is the only legal heir of her husband
Gorrela Naga Bhaskara Rama Venkata Rao @ Srinu. Accordingly, these issues are answered.
ISSUE NO.2:
39.In view of finding on issue no.1, the plaintiff is declared as the only legal heir of her husband Gorrela Naga Bhaskara Rama
Venkata Rao @ Srinu. Therefore, the plaintiff is entitled for grant of permanent injunction in respect of plaint schedule property against the defendants. Accordingly, this issue is answered.
ISSUE NO.3:
40.In the result, the suit is decreed with costs by declaring 23 that the plaintiff's husband is dead and that the plaintiff is the only legal heir of her husband Gorrela Naga Bhaskara Rama Venkata Rao and for consequential relief for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the plaint schedule property.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in the open court, this the 24th day of January,
2020.
III ADDL. SENIOR CIVIL JUDGE,
KAKINADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:FOR DEFENDANT:
P.W.1:Gorrela KavithaD.W.1:Yalla Ananthalakshmi D.W.2:Achanta Sathi Raju D.W.3:Madduri Suryanarayana D.W.4:S.Venkata Subrahmanyam D.W.5:Chodapuneedi Govinda Rao
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1: Registered sale deed dt.26-08-2004 executed in favour of her husband in respect of schedule property.
Ex.A.2:Attested copy of F.I.R. dt.1-10-2009 relating to the Cr.No.119/2009 of Karapa P.S. for man missing.
FOR DEFENDANT:
Ex.B.1: consent letter dt.21-07-2018 executed by the plaintiff.
III ASCJ,
KKD.
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