IN THE COURT OF SENIOR CIVIL JUDGE, MANGALAGIRI
Present: Smt.V.Bhavani,
Senior Civil Judge, Mangalagiri
Tuesday, the 5th day of May, 2020
O.S.No.32 of 2015
Between:
1. Bandlamudi Nagendram, W/o.Sambasiva Rao, Hindu, aged about years, House wife, R/o.Madepudi village, Pedakurappadu Mandal, Guntur District.
2. Dasari Suseelamma W/o.Augustinaiah, Hindu, aged about years, House wife, R/o.Venkatapuram village, Kurnool District.
3. Ramineni Krishna Kumari W/o.Sambasiva Rao, Hindu, aged about years, House wife, R/o.6-17-47-D, 17/3 Arundelpet, Guntur. ….Plaintiffs
And
1. Karumanchi Tirupathi Rao, S/o.Late Karumanchi Kondaiah, Hindu, aged about years, Agriculture, R/o.Tallayapalem village, Thulluru Mandal, Guntur District.
2. Vuyyuru Vijaya Lakshmi W/o.Vuyyuru Tulasipathi Rao, Hindu, aged about 45 years, House wife, r/o.Pedakakani village, Pedakakani Mandal, Guntur District.
3. Kolli Swarna Kumari S/o.Kolli Srinivasa Rao, Hindu, aged about 43 years, House wife, R/o.Navuluru village, Mangalagiri Mandal, Guntur District.
4. Karumanchi Pushpavathi W/o.Late Karumanchi Tirupathi Rao, Hindu, aged about 58 years, House wife, R/o. Tallayapalem village, Thulluru Mandal, Guntur District. (4th defendant added as per the orders dated 27.10.2017 in I.A.No.2064/2015) ……Defendants
This suit came before me on 19.03.2020 for final hearing in the presence of Sri A.R.Srinivasa Murthy and Sri T.Madhusudana Rao, Advocates for the plaintiffs and of Sri Lanka Nageswara Rao and Sri Lanka Sivaram Prasad, Advocates for the defendants 2 to 4 and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following :
:: J U D G M E N T ::
This suit is filed by the plaintiffs for partition of the plaint schedule property into 12 equal shares and out of it to allot 3 such shares to each of the plaintiff with separate metes and bounds and to deliver vacant possession of such three shares //2// O.S.32/2015 out of suit schedule property to each of the plaintiffs without any encumbrances and for costs.
2.The brief averments of the plaint is as follows :
The plaintiffs are the sisters of 1st defendant and the defendants 2 and 3 are his daughters. Plaintiffs and 1st defendant are the children of one Karumanchi
Kondaiah and Karumanchi Ramayamma.
Suit schedule property is the ancestral property of above said Karumanchi
Kondaiah and Karumanchi Ramayamma. Karumanchi Kondaiah died prior to 37 years back and after his death suit schedule property was equally devolved upon his wife Karumanchi Ramayamma and his children i.e., plaintiffs ad 1st defendant equally and they were in joint possession and enjoyment of the schedule property.
Thereafter, i.e., prior to 13 years back said Karumanchi Ramayamma also died intestate by leaving plaintiffs and defendant No.1 as her legal heirs and thereby the suit schedule property was equally devolved upon them and since then both the plaintiffs and defendant No.1 are in joint possession and enjoyment of the suit schedule property.
The suit schedule property is joint family property and also it is inherited as ancestral property only. Suit schedule property is in joint possession and enjoyment of both plaintiff and 1st defendant only. On several occasions plaintiffs demanded the 1st defendant to cooperate for partition of the suit schedule property but the 1st defendant procrastinated the matter on one pretext or other.
On enquiries of the plaintiffs a few days back they came to know that the 1st defendant colluded with his children i.e., defendants 2 and 3 with an evil intention to defeat the rights of the plaintiffs in the suit schedule property and hatched an evil plan and in execution of the same 1st defendant executed a registered gift deed in favour of defendants 2 and 3 under Doc.No.5867/2014 dated 01.11.2014 of SRO
Tadikonda. The said gift deed is sham, nominal and void and it was executed to defeat the rights of the plaintiffs, said gift deed was executed as if the 1st defendant is only having right in the suit schedule property by suppressing the rights of the plaintiffs. Even the alleged gift deed also evidences that the suit schedule property is ancestral property.
Such alienation made in favour of defendants 2 and 3 under //3// O.S.32/2015 doc.No.5867/2014 will not effect the rights of the plaintiffs and they will not bind them and such alienation is untenable before the eye of law and it is not valid and no rights will get to anybody in the suit schedule property by virtue of the alleged above said registered gift deed and even today suit schedule property is under the entity of joint family only and it is in joint possession only and the plaintiffs are each having 1/4th equal right in the suit schedule property along with 1st defendant.
Though the alleged gift deed was executed, suit schedule property is in joint possession and enjoyment of plaintiffs and 1st defendant only.
On several occasions plaintiffs demanded the 1st defendants to co-operate for partition of the suit schedule property but they procrastinated the matter on one pretext or other with an evil intention to evade plaintiffs share and they did not cooperated for partition of the suit schedule property, as the 1st defendant died intestate, while suit pending, by leaving the defendants 2 to 4 as his only legal heirs.
The suit schedule property is an ancestral property and that the defendants alone are not having absolute rights and that both plaintiffs and defendants are having joint possession and rights in the suit schedule property and that the defendants with an evil intention to knock away the share of plaintiffs they have colluded together and fabricated a sham, null and void gift deed in the name of defendants 2 and 3 and that the defendants colluded together and not cooperating for the partition of the suit schedule property and as such plaintiffs constrained to file this suit for partition of the suit schedule property into 12 equal shares and to allot one such 3/12th share to each of the plaintiff.
As the defendants are not co-operating for partition of the suti schedule property, plaintiff constrained to file this suit for partition of the schedule property into 12 equal shares and to allot 3/12th share to each of the plaintiff by delivering vacant possession to them. As the gift deed bearing No.5867/2014 will not effect the rights of plaintiffs and they will not bind the plaintiffs and as such plaintiffs not seeking for cancellation of the said gift deed and only filed the suit for partition.
Hence the suit.
3. During the course of trial, the 1st defendant died intestate leaving behind defendants 2 to 4 as his only heirs and defendants 2 to 4 are added in the //4// O.S.32/2015 suit as per I.A.No.2064/2015 dated 27.10.2017.
4. Defendants 2 to 4 in their written statement contended that even during the life time of father of the plaintiffs and 1st defendant Viz., Kondaiah and even before performing the marriage of the 3rd plaintiff, the said Kondaiah and 1st defendant partitioned their joint family properties and executed a List of Partition dt.15.07.1965 in terms of which the said Kondaiah took A schedule properties covered thereunder and the 1st defendant was allotted and he took separate possession of B schedule properties covered thereunder subject to the conditions imposed in the said List of Partition for enjoyment of the properties. As per the said list of partition an extent of Ac.1.35 cents of land out of Ac.1.75 cents land at
Sakhamuru village, was allotted to the father Kondaiah for enjoyment with life interest and vested remainder in favour of the 1st defendant with absolute rights and the remaining Ac.0.40 cents is arranged for enjoyment of Kondaiah with absolute rights and ever since Kondaiah and 1st defendant took separate possession of the properties and began to enjoy as such.
After the death of Kondaiah, the 1st defendant became absolute owner of
Ac.1.35 cents of land out of Ac.1.75 cents and continued as such and the remaining
Ac.0.40 cents was land succeeded by the mother Ramayamma and thereafter at the instance of the elders and relatives, the 1st defendant and the mother Ramayamma executed among themselves another list of partition dt.20.08.1982 by making arrangements for enjoyment of the Ac.0.45 cents of land succeeded by
Smt.Ramayamma. As per it, it was so arranged that the 1st defendant has to take possession of the said extent after the life time of Ramayamma. However, for the sake of maintenance of the mother and maternal grand mother another mediatornama was executed on 18.01.1986 in terms of which the 1st defendant agreed to allow his mother and grand mother to enjoy the usufructs till their life time for their maintenance and to enjoy thereafter as absolute owner thereof.
Thus, after the life time of the parents and his maternal grand mother, the 1st defendant having become absolute and exclusive owner of the plaint schedule property enjoyed as such to the knowledge of one and all in the village and vicinity including the plaintiffs. The Revenue Authorities also having recognized the absolute and exclusive rights, title, interest and possession of the 1st defendant //5// O.S.32/2015 issued Pattadar Pass Book and Title Deed Book in his name on 18.06.1997 and the 1st defendant also availed loans from Banks by creating charge over the schedule property.
As matters stood thus, out of love and affection towards the defendants 2 and 3, the 1st defendant gifted and delivered possession of the plaint schedule property by executing Regd. Gift Deed dt.01.11.2014 bearing Doc.No.5867/2014 of SRO,
Tadikonda and ever since the defendants 2 and 3 are continuing as joint owners with absolute and exclusive rights, title, interest and possession and the Revenue authorities having recognized the rights and title of the defendants 2 and 3 issued
Pattadar Pass Book and Title Deed Book by making necessary mutations in the
Revenue records for the schedule land. Thus, except the defendants, the plaintiffs are not having any colour of right or share or claim in the plaint schedule property to seek for partition of the same and the plaintiffs were never in possession and enjoyment of the schedule land either with the father or with the 1st defendant or with the defendants as alleged and averred in the plaint and on account of the recent speculative rise in the values of the properties, knowing fully well that the 1st defendant is having absolute and exclusive rights and title to the schedule property and that he executed Regd. gift Deed in favour of the defendants 2 and 3, the plaintiffs being guided by the persons with the litigant attitude got filed the suit with false averments and claims for which they are not entitled to do so. There are no bonafides on the part of the plaintiffs in filing of the above suit and they did not approach this Court with clean hands and prayed to dismiss the suit.
5.Basing on the above pleadings, the following issues are settled for trial:
1. Whether the plaint schedule properties are joint family properties of plaintiffs and 1 st defendant ?
2. Whether the plaint schedule properties are available for partition ?
3. Whether on 15.07.1965 the plaint schedule properties and other properties were partitioned by Kondaiah and 1 st defendant ?
4. Whether the plaintiffs are entitled for partition of plaint schedule properties into 12 equal shares and out of it 3 such shares to each of the plaintiff by separate metes and bounds and deliver the vacant possession of such 3 shares out of plaint schedule properties to the plaintiffs without any encumbrance ?
5. To what relief?
//6// O.S.32/2015
6.During the course of trial, on behalf of the plaintiffs, PWs 1 and 2 are examined and Ex.A1 is marked. On behalf of the defendants, DWs 1 to 3 are examined and Exs.B1 to B31 are marked.
7. Heard both the sides.
8.Issues Nos. 1 to 4: Allthe issues are clubbed together to avoid the repetition in discussion.
(i)The main contention of the plaintiffs is that the plaintiffs are sisters of 1st defendant and the defendants 2 and 3 are daughters of 1st defendant and the plaint schedule property is the ancestral property, and after the death of the parents of the plaintiffs and 1st defendant, the plaint schedule property devolved to the plaintiffs and 1st defendant equally and are in joint possession and enjoyment of the schedule property and when plaintiffs demanded for partition of the plaint schedule property the 1st defendant not cooperating with the plaintiffs and further 1st defendant executed registered gift deed in favour of defendants 2 and 3 by suppressing the rights of the plaintiffs, the said gift deed is void and it was executed to defeat the rights of the plaintiffs. To prove the same, plaintiffs examined PWs1 and 2 and Ex.A1 is marked.
ii)The learned counsel for the defendants argued that during the life time of father of the plaintiffs and 1st defendant i.e.,Kondaiah and even before performing the marriage of the 3rd plaintiff, the said Kondaiah and 1st defendant partitioned their joint family properties and executed a list of partition dated 15.07.1965 and same is exhibited as Ex.B1 and 1st defendant was allotted B schedule properties covered under Ex.B1 and further 1st defendant and the mother
Ramayamma executed among themselves another list of partition dated 20.08.1982 under Ex.B2 and as per it, 1st defendant took possession of the said extent after the life time of Ramayamma and for the sake of maintenance of the mother and maternal grand mother another mediatornama was executed on 18.01.1986 which is admitted by the 1st defendant agreed to allow his mother and grand mother to enjoy the usufructs till their life time for their maintenance under Ex.B3 and after that 1st defendant is actual possession and enjoyment of the plaint schedule property. To prove the same, DWs 1 to 3 were examined and Exs.B1 to B31 were marked.
//7// O.S.32/2015 iii)All the issues casts burden on the plaintiffs to prove that the plaint schedule properties are joint family properties and they are available for partition and there are no partition took place between Kondaiah and 1st defendant on 15.07.1965 and plaintiffs are entitled for partition.
(iv) To prove the case of the plaintiffs, 1st plaintiff herself examined as PW1, who filed her affidavit in lieu of examination-in-chief, wherein she reiterated the contents of plaint and as such the examination-in-chief of PW1 is nothing but replica of plaint and also exhibited Ex.A1 is marked and on perusal of Ex.A1, it is seen that Ex.A1 is the registered gift deed bearing No.5867/2014 of SRO, Guntur executed by 1st defendant in favour of defendants No.2 and 3.
(v)In cross examination of PW1 she admitted that her marriage performed 60 years back and her father performed the marriages of other plaintiffs and 1st defendant within 5 years from her marriage and from the time of her marriage she is residing at their in-laws house and she does not remember whether she mentioned in her plaint that when her father was died and they filed suit only regarding the property situated in Sakhamuri village and PW1 in her cross examination admitted that her father is native of Velagapudi village and after marriage of 1st defendant he partitioned with their father and migrated to
Talavapalem village and she does not know when her father and 1st defendant partitioned the property and she does not know whether defendants 2 and 3 filed written statement.
PW1 in her cross examination deposed that she does not know the documents filed by the defendants and she does not know the contents of her pleadings and her son got filed the suit through her and she does not know whether in the year 1965 her father and 1st defendant partitioned the property and executed list of partition and her father had not got any property in Velagapudi in partition and she does not know whether any debts are there to her father by the time of partition and she does not know whether the debts were also made liable to be paid by 1st defendant as per the list of partition and the 1st defendant never gave any amounts to them towards their share in usufructs and as per the family arrangements after the death of her father his share of properties were succeeded by her mother as absolute owner and they got the record to say that the plaint //8// O.S.32/2015 schedule property stands in the name of her mother and her son is having the records to show that the property stands in the name of her mother and she cannot say whether her mother died on 26.11.2001 and she does not remember the period when the 1st defendant tried to alienate property and they have not issued any notice to defendants and she does not know whether in the year 1982 her mother and 1st defendant reduced into writing the list of partition regarding the properties succeeded by her mother and she does not know which period the name of the 1st defendant is entered in revenue record and she did not enjoy the plaint schedule property jointly.
(vi) 3rd plaintiff Ramineni Krishna Kumari herself examined as PW2 who filed her affidavit in lieu of examination-in-chief wherein she reiterated the contents of plaint and as such the examination-in-chief of PW2 is nothing but true replica of the plaint.
PW2 in her cross examination deposed that the plaint schedule property devolved upon her mother by name Ramayamma after death of her father and she does not know the arrangements made by their mother with 1st defendant and PW2 in her cross examination admitted that prior to her marriage her father and 1st defendant partitioned the properties and executed a list of partition on 15.07.1965 and she did not got through the contents of partition list and she does not know the contents of written statement as well as the documents filed by the defnednat along with statement and her father died prior to the year 1982 and her mother is a literate and she studied upto primary education and her mother died at about 10 years back and till her death she had been in possession and enjoyment of the plaint schedule property.
PW2 in her cross examination deposed that they did not any endeavor to know whether the schedule property stood in the name of their mother in revenue records or not and her mother or her brother never shared the usufructs from out of the schedule property at any point of time to herself or to any other plaintiffs and
PW2 in her cross examination admitted that her mother and her maternal grand mother lived together after the death of their father and she does not know whether her mother and 1st defendant entered into one mediator name making arrangements that her mother and her maternal grand mother have to enjoy the property till their //9// O.S.32/2015 death and thereafter it will vested to 1st defendant.
(vii) To disprove the case of the plaintiffs, 2nd defendant herself examined as
DW1 who filed her affidavit in lieu of examination-in-chief wherein she reiterated the contents of written statement and as such the examination-in-chief of DW1 is true replica of written statement. In addition to that she also exhibited Exs.B1 to
B31 and on perusal of Exs.B1 to B31 it is seen that Ex.B1 is the list of partition executed between Karumanchi Kondaiah and Tirupathaiah dated 15.07.1965.
Ex.B2 is the list of partition execution between Karumanchi Ramayamma and
Tirupathaiah dated 20.08.1982. Ex.B3 is the mediatornama executed between
Karumanchi Ramayamma and Tirupathaiah dated 18.01.1986. Ex.B4 is the pattadar pass book issued in the name of 1st defendant dated 18.06.1997. Ex.B5 is the title deed book issued in the name of 1st defendant dated 18.06.1997. Ex.B6 is the lift irrigation scheme book in the name of 1st defendant dated 23.03.2002.
Ex.B7 is the registration extract of registered gift deed No.5867/2014 of SRO,
Tadikonda executed by 1st defendant in favour of defendants 2 and 3 for the schedule land dated 01.11.2014. Ex.B8 is the ROR extract for the schedule land
dated 14.02.2015. Ex.B9 is the adangal extract for the schedule land dated
14.02.2015. Ex.B10 is the extract of registered gift deed No.3876/2015 of SRO,
Tadikonda executed by defendants 2 and 3 in favour of defendant No.4 for an extent of Ac.0.47 cents dated 29.05.2015. Ex.B11 is the extract of registered sale deed No.2950/2016 of SRO, Tadikonda executed by defendant No.2 in favour of defendant No.4 for an extent of Ac.0.13 cents dated 17.05.2016. Ex.B12 is the extract of registered partition deed No.3516/2016 of SRO, Tadikonda executed between defendants 2 and 3 dated 28.05.2016. Ex.B13 is the acknowledgement issued by CRDA unit No.19 Sakhamuru for the documents received from defendant No.2 dated 01.11.2017. Ex.B14 is the acknowledgement issued by
CRDA unit No.19 Sakhamuru for the documents received from defendant No.2
dated 01.11.2017. Ex.B15 is the acknowledgement issued by CRDA unit No.19
Sakhamuru for the documents received from defendant No.2 dated 01.11.2017.31.01.2019. Ex.B16 is the attested copy of residential plot allotment letter in favour of defendant No.2 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B17 is the attested copy of residential plot allotment letter in //10// O.S.32/2015 favour of defendant No.2 issued by CRDA Sakhamuru unit dated 21.09.2016.
Ex.B18 is the attested copy of commercial plot allotment letter in favour of defendant No.2 and 4 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B19 is the attested copy of residential plot allotment letter in favour of defendant No.4 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B20 is the attested copy of commercial plot allotment letter in favour of defendant No.2 and 4 issued by
CRDA Sakhamuru unit dated 21.09.2016. Ex.B21 is the attested copy of commercial plot allotment letter in favour of defendant No.3 issued by CRDA
Sakhamuru unit dated 21.09.2016. Ex.B22 is the attested copy of residential plot allotment letter in favour of defendant No.3 issued by CRDA Sakhamuru unit
dated 21.09.2016. Ex.B23 is the registration extract of registered development
agreement 9.14 supplementary deed bearing No.1382/2017 of Joint SRO,
Ananthavaram executed in between competent authority, CRDA, Sakhamuru in favour of defendant No.4 dated 03.11.2017. Ex.B24 is the registration extract of registered development agreement cum GPA deed bearing No.1318/2017 of Joint
SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B25 is the registration extract of registered development agreement cum supplementary deed bearing No.1339/2017 of Joint
SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B26 is the registration extract of registered development agreement cum supplementary deed bearing No.1340/2017 of Joint
SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B27 is the registration extract of registered development agreement cum GPA supplementary deed bearing No.390/2019 of
Joint SRO, Ananthavaram executed in between competent authority, CRDA,
Sakhamuru and defendant No.3 dt.30.01.2019. Ex.B28 is the registration extract of registered development agreement cum GPA supplementary deed bearing
No.420/2019 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.3 dt.30.01.2019. Ex.B29 is the registration extract of registered development agreement cum supplementary deed bearing No.1381/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017.
//11// O.S.32/2015
Ex.B30 is the registration extract of registered development agreement cum supplementary deed bearing No.1319/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B31 is the registration extract of registered development agreement cum supplementary deed bearing No.1339/2017 of Joint SRO,
Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017.
(viii) DW1 in her cross examination deposed that 1st plaintiff is the elder sister of 1st defendant and other two plaintiffs are younger sisters of 1st defendant and originally the plaint schedule property belongs to her paternal grand father by name Karumanchi Kondaiah and the said property is ancestral property of
Karumanchi Kondaiah and her father acquired the plaint schedule property by way of partition between himself and his father by name Kondaiah under Ex.B1 partition list and her paternal grand mother by name Karumanchi Ramayamma and her father i.e., 1st defendant partitioned the properties along with plaint schedule property under Ex.B2 and in Ex.B7 gift deed in which her father executed in her favour and 3rd defendant, the particulars of Ex.B1 to 3 are not mentioned and DW1 in her cross examination admitted that in Ex.B7 it is mentioned that the said property is ancestral property and he is the only legal heir to his parents and that he alone inherited the said properties and in Ex.B7 it is not mentioned about her maternal aunts.
DW1 in her cross examination further deposed that by the date of alleged partition dated 15.07.1965 under Ex.B1 the plaintiffs were born and she has not filed any document to show that her grand father gave amount to plaintiffs at the time of their marriages and DW1 in her cross examination admitted that in Ex.B3 mediatornama there is no signatures of plaintiffs and so also in Exs.B1 and B2 and
Exs.B10 and B11 are executed during the pendency of the suit in favour of 4th defendant.
(ix) To support the case of the defendants, 3rd defendant herself examined as
DW2 who filed her affidavit in lieu of examination-in-chief wherein she reiterated the contents of written statement and as such the examination-in-chief of DW2 is true replica of written statement.
//12// O.S.32/2015
DW2 in her cross examination admitted that all the 3 plaintiffs were born prior to the year 1965 and the plaint schedule properties are acquired by her grand father by name Karumanchi Kondaiah from his ancestors and 1st defendant and his father Kondaiah executed partition deed by partitioning the properties between them and except partition deed there is no any other document between them and in Ex.A1/Ex.B7 it is not recited about the partition between 1st defendant and his father Kondaiah under Ex.B1 and DW2 in her cross examination further admitted that it is not recited about the Ex.B1 in Ex.B2 and in Ex.A1/Ex.B7 it is not mentioned about the Ex.B2 and Ex.B3 and in Ex.B4 and Ex.B5 it is not mentioned how 1st defendant acquired the property.
(x) One Yarlagadda Prasad, who is the co-brother of 1st defendant examined as DW3 who filed his affidavit in lieu of examination-in-chief wherein he reiterated the contents of written statement and as such the examination-in-chief of
DW3 is true replica of written statement.
DW3 in his cross examination deposed that she know the plaintiffs and they are sisters of the 1st defendant who is his co-brother and he has seen the gift deed under Ex.A1 and Ex.A1 gift deed it is not mentioned how the executants acquired the said property and in the said deed it is mentioned that he acquired the said property from his ancestors and it is also mentioned that he is the only son and she has not read over the Ex.A1 completely and DW3 in his cross examination admitted that in Ex.A1 there is no mention about the other children of Karumanchi
Kondaiah.
(xi) Admittedly, there is no any dispute in regard to the nature of the property as ancestral one. PW1 admitted in her cross examination that as per partition took place in between her father and 1st defendant on 15.07.1965 itself and same is also proved by the 1st defendant by exhibiting the partition list as
Ex.B1 and as per Ex.B1 the 1st defendant and his father Kondaiah partitioned their joint family properties and executed a list of partition in terms of said Ex.B1,
Kondaiah took A schedule properties covered thereunder and 1st defendant was allotted B-schedule properties covered under Ex.B1 subject to the conditions imposed in the list of partition for enjoyment of the properties and as per said list of partition, an extent of Ac.1.35 cents of land out of Ac.1.75 cents land at //13// O.S.32/2015
Sakhamuru village, was allotted to the father Kondaiah for enjoyment with life interest and vested remainder in favour of the 1st defendant with absolute rights and the remaining Ac.0.40 cents was arranged for enjoyment of Kondaiah with absolute rights. As per above said evidence coupled with Ex.B1, it seems that even though the plaintiffs have knowledge about the parititon of the same, they maintained silence all these years and filed the suit in the year 2015 which shows the intention of the plaintiffs in creating the litigation having knowledge of the partition.
(xii) Another added dimension to dismiss the suit is that Kondaiah died about 30 years back before filing of the suit and as such, the plaintiffs take schelter under Section 29-A of the Hindu Succession Act, 1956 whereas the PW1 stated in her cross examination that her marriage took place at about 60 years back and the other plaintiffs marriage took place within a span of five years from the marriage of PW1 and as such, it can be assumed that their marriage took place in the year 1965. But Section Section 29-A of the Hindu Succession Act, 1956 comes into picture.
Section 29-A. Equal rights to daughter in coparcenary property :-
Notwithstanding anything contained in Section 6 of this Act :
(i)In a joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the rights to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son ;
(ii)(a) At a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son :
Provided that the share which a predeceased son or predeceased daughter would have got at the partition if he or she had been alive at the time of the petition shall be allotted to the surviving child of such predeceased son or of such predeceased daughter ;
Provided further that the share allotable to the predeceased child of a //14// O.S.32/2015 predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or of the pre-deceased daughter as the case may be;
(b) the share alloted to a female at a partition shall be held by her, subject to the terms of the partition, as a full owner ;
(iii)when a partible property includes a dwelling-house wholly occupied by members of the joint Hindu family, then notwithstanding anything contained in this Act, the right of a female coparcener to claim partition to the dwelling-house shall not arise until the male co- parcerners choose to divide their respective shares therein; but the female coparcener shall be entitled to a right of residence therein if she is unmarried or has been deserted by or has separated from her husband or is a widow;
(iv) Any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, not withstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition.
(v)Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the
Hindu Succession (Andhra Pradesh Amendment) Act. 1986.
(xiii) As per Section 29-A of the Hindu Succession Act amended dated 05.09.1985, plaintiffs being a daughter of Kondaiah and their marriages took place prior to coming into force of Section 29-A of Hindu Succession Act, they are not entitled to seek the partition of the plaint schedule property. For this, the learned counsel for the plaintiffs argued that the plaintiffs are come under the amended
Section 6 of the Hindu Succession Act and as per Section 6 of the Hindu
Succession Act, the plaintiffs are entitle for partition. For this the learned counsel for the plaintiffs relied on the following citations :
a) In a decision rendered in (2018) 3 Supreme Court Cases 343 between //15// O.S.32/2015
Danamma @ Suman Surpur and another
Versus
Amar and others
Wherein the Hon’ble Apex Court at paras 19, 22 and 23 held as under :
“That apart, the amendment to Section 6 of the Hindu Succession Act, 1956 vide amendment Act 2005 clinches the issue, beyond any pale of doubt, in favour of the appellant daughters herein. This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives the same rights and liabilities in the coparcerner properties as she would have had if she had been a son. These changes have been brought in Section 6 of the Hindu Succession Act on the touchstone of equality, thus seeking to remove the perceived disability andprejudice to which a daughter was subjected. Section 6 of the Hindu Succession Act, 1956, as amended in 2005, stipulates that on and from the commencement of the said amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation and is well recognized one of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners eminate and flow from birth as is evident from Sub-Section (1)(a) and (b) of Section 6 of the Hindu Succession Act.
There is no dispute that the property which was the subject matter of the partition suit belongs to joint family and G was propositus of the said joint family property. In the said partition suit, share will devolve upon the appellant //16// O.S.32/2015 daughters as well. Since G died living behind two sons R and V, two daughters and a widow, both the appeallant daughters would be entitled to 1/5 th share each in the said property. The plaintiff is son of R. Since R will have 1/5 th share, the same would be divided into 5 shares on partition i.e., between R, his wife, his two daughters and son or plaintiff. In this manner, the plaintiff would be entitled to 1/25 th share in the property.”
The learned counsel for the plaintiffs further argued that mutation of land in the revenue records does not create rights or extinguish existing rights over the title of said land nor any presumptive value in the title. For this the plaintiffs relied upon a decision rendered in (2019) 10 Supreme Court Cases 259 between
Prahlad Pradhan and Others
Versus
Sonu Kumhar and others
Wherein the Hon’ble Apex Court held as under :
“As per Hindu Law in joint family property is self acquired property, proof of, lies on that member who admits joint family status but contends that some properties are self-acquired properties, appearance of name in revenue record does not make property as self-acquired property.”
The Transfer of Property Act, 1882, Sections 5, 7 and 8, Nemo Dat Quod non habet, competency of persons to transfer property, transfer of property by person without rights, inefficacy of. Held, a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer if for consideration or otherwise. No other interest, which he himself does not possess in tangible property. Once it is proved that on date of transfer or any tangible property, seller of property did not have any substantial right, title or interest over it, then buyer of such property would not get any right, title and interest in property. Such transfer would be illegal and void transfer.
Tenancy and Land Laws, Revenue Records, relevance of, reiterated, held they neither create rights nor extinguish existing rights, they do not have any presumptive value, they enable person in whose favour mutation recorded to pay land revenue, property law, revenue records, ownership and title.
35. It is a settled principle of law that a person can only transfer to other //17// O.S.32/2015 person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.
36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.”
c) Another decision rendered in (2019) 3 Supreme Court Cases 191 between
Bhimabai Mahadeo Kambekar (Dead) through Legal Representative
Versus
Arthur Import and Export Company and others
Wherein the Hon’ble Apex Court held as under :
“Tenancy and Land Laws, Revenue Records, mutation entries, relevance of, neither create nor extinguish title over property, mutation entries do not have any presumptive value of title, they only enables person in whose favour entries made is ordered to pay land revenue.
This court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor has it any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.”
The facts and circumstances of the above cases are not applicable to the present case on hand.
(xiv) The learned counsel for the defendants argued and relied upon the following decisions :
a) In a decision rendered in 2018 (5) SCJ 581 between
Mangammal @ Thulasi and another
Vs.
T.B.Raju and others //18// O.S.32/2015
Wherein the Hon’ble Apex Court held as under :
“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.
It is pertinent to note here that recently, this Court in Danamma @ Suman
Surpur and another v. Amar and others 2018(2) SCJ 268 = 2018 (1) Scale 657 dealt, inter-alia,with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet Court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not ? In such circumstances, in our view, Prakash and others (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property, Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the coparceners in the Hindu Joint Family
Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance.”
b) In a decision rendered in 1998 (0) SCJ online (AP) 1223 between
Secretary to Government of India, Ministry of Defence, New Delhi and another
Vs.
Indira Devi and another
Wherein the Hon’ble High Court of Anhdra Pradesh at para No.7 held as under :
“The Supreme court in Shikarchand vs. D.J.P.Karini Sabha held that Khasra is a record-of right. Although the record-of-rights is not a document of title, the
Court is perfectly entitled to take into consideration the entry in the record-of- rights for coming to the conclusion that certain person is the owner of the land in //19// O.S.32/2015 question. The party relying on presumption of correctness need not prove foundation or basis of correctness. Where the entry in the record-of-rights shows the suit land in the name of the plaintiff, the onus is on the defendant to prove that the said entry in favour of the plaintiff is not correct. As pointed out supra, the plaintiffs have produced the record of rights as well as the pahanis to establish their title to and possession of the suit land.”
c) In a decision rendered in 2011 (0) SCJ online (AP) 748 between
Yadla Venkata Subbamma and others
Vs.
Yadla Punnamma and others
Wherein the Hon’ble High Court of Anhdra Pradesh at para No.9, 10 and 13 held as under :
“9.It is not uncommon that suits for partition are filed by some of the coparceners or co-owners, not being aware of prior partition or a different kind of disposition, on earlier occasions. Though non-reference of the same in the plaint may not have any impact on the case ; at least when a specific plea on those lines is raised in a written statement, the plaintiff is under obligation to file a rejoinder, if he intends to dispute such plea. In the absence of rejoinder, the plea raised by the defendant virtually stands unrebutted.
10. In this Case, the respondents filed the suit under the assumption that
Venkata Subba Reddy did not order any arrangement vis-vis the property and that it is available for partition. The appellants clearly mentioned in their written statement that Venkata Subba Reddy executed Ex.B14 on 11.07.1988. The details thereof are also mentioned to the effect that under Ex.B14, some properties were bequeathed to the respondents also and that the suit schedule property was exclusively bequeathed to the appellants. The respondents did not file any rejoinder..
13. In her cross-examination, she stated that she has not instructed anyone to file a suit, she does not know anything about the suit schedule properties and that she did not put her signature on the plaint. With this, the entire foundation for the suit became shaky. No effort was made by the respondents either to withdraw the statement or to disown it. As long as the statement remained in the record, the //20// O.S.32/2015 very suit became untenable. Therefore, another substantial question of law is “whether any relief can be granted in a suit at all, in case the plaintiff therein deposes that he did not instruct anyone to file the suit, she does not know anything in the suit claim and that she did not sign the plaint at all”. Here again, the answer is in the negative and the result thereof goes in favour of the appellants.”
The above decisions are squarely applicable to the present case on hand and the plaintiffs are not coparcerners in the Hindu Joint Family prepared in view of the 1989 amendment.
(xv) In view of the above said discussion, the plaintiffs are clearly failed to prove that the plaint schedule properties are joint family properties of plaintiffs and 1st defendant and the plaint schedule properties are available for partition and hence, the plaintiffs are not entitled for partition. Accordingly these issues are answered.
9. Issue No.5 : In view of the categorical findings, the suit is deserves to be dismissed.
In the result, the suit is dismissed. In view of interse relationship between the parties, there shall be no order as to costs.
(Dictated to the Stenographer and after transcribed by her, corrected and
pronounced by me in the open Court, on this the 5th day of May, 2020).
Senior Civil Judge,
Mangalagiri.
:: Appendix of Evidence ::
(Witnesses Examined)
FOR THE PLAINTIFFS: PW1 : Bandlamudi Nagendram PW2 : Ramineni Krishna Kumari
FOR THE DEFENDANTS : DW1 : Vuyyuru Vijaya Lakshmi DW2 :Kolli Swarna Kumari DW3 : Yarlagadda Prasad
EXHIBITS MARKED
FOR THE PLAINTIFF : Ex.A1 is the registered gift deed bearing No.5867/2014 of SRO, Guntur executed //21// O.S.32/2015 by 1st defendant in favour of defendants No.2 and 3.
FOR THE DEFENDANTS: Ex.B1 is the list of partition executed between Karumanchi Kondaiah and Tirupathaiah dated 15.07.1965. Ex.B2 is the list of partition execution between Karumanchi Ramayamma and Tirupathaiah dated 20.08.1982. Ex.B3 is the mediatornama executed between Karumanchi Ramayamma and Tirupathaiah dated 18.01.1986. Ex.B4 is the pattadar pass book issued in the name of 1st defendant dated 18.06.1997. Ex.B5 is the title deed book issued in the name of 1st defendant dated 18.06.1997. Ex.B6 is the lift irrigation scheme book in the name of 1st defendant dated 23.03.2002. Ex.B7 is the registration extract of registered gift deed No.5867/2014 of SRO, Tadikonda executed by 1st defendant in favour of defendants 2 and 3 for the schedule land dated 01.11.2014. Ex.B8 is the ROR extract for the schedule land dated 14.02.2015. Ex.B9 is the adangal extract for the schedule land dated 14.02.2015. Ex.B10 is the extract of registered gift deed No.3876/2015 of SRO, Tadikonda executed by defendants 2 and 3 in favour of defendant No.4 for an extent of Ac.0.47 cents dated 29.05.2015. Ex.B11 is the extract of registered sale deed No.2950/2016 of SRO, Tadikonda executed by defendant No.2 in favour of defendant No.4 for an extent of Ac.0.13 cents dated 17.05.2016. Ex.B12 is the extract of registered partition deed No.3516/2016 of SRO, Tadikonda executed between defendants 2 and 3 dated 28.05.2016. Ex.B13 is the acknowledgement issued by CRDA unit No.19 Sakhamuru for the documents received from defendant No.2 dated 01.11.2017. Ex.B14 is the acknowledgement issued by CRDA unit No.19 Sakhamuru for the documents received from defendant No.2 dated 01.11.2017. Ex.B15 is the acknowledgement issued by CRDA unit No.19 Sakhamuru for the documents received from defendant No.2 dated 01.11.2017.31.01.2019. Ex.B16 is the attested copy of residential plot allotment letter in favour of defendant No.2 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B17 is the attested copy of residential plot allotment letter in favour of defendant No.2 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B18 is the attested copy of commercial plot allotment letter in favour of defendant No.2 and 4 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B19 is the attested copy of residential plot allotment letter in favour of defendant No.4 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B20 is the attested copy of commercial plot allotment letter in favour of defendant No.2 and 4 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B21 is the attested copy of commercial plot allotment letter in favour of defendant No.3 issued by CRDA Sakhamuru unit dated 21.09.2016. Ex.B22 is the attested copy of residential plot allotment letter in favour of defendant No.3 issued by CRDA Sakhamuru unit dated 21.09.2016.
//22// O.S.32/2015
Ex.B23 is the registration extract of registered development agreement 9.14 supplementary deed bearing No.1382/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru in favour of defendant No.4
dated 03.11.2017.
Ex.B24 is the registration extract of registered development agreement cum GPA deed bearing No.1318/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B25 is the registration extract of registered development agreement cum supplementary deed bearing No.1339/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B26 is the registration extract of registered development agreement cum supplementary deed bearing No.1340/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B27 is the registration extract of registered development agreement cum GPA supplementary deed bearing No.390/2019 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.3 dt.30.01.2019. Ex.B28 is the registration extract of registered development agreement cum GPA supplementary deed bearing No.420/2019 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.3 dt.30.01.2019. Ex.B29 is the registration extract of registered development agreement cum supplementary deed bearing No.1381/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B30 is the registration extract of registered development agreement cum supplementary deed bearing No.1319/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017. Ex.B31 is the registration extract of registered development agreement cum supplementary deed bearing No.1339/2017 of Joint SRO, Ananthavaram executed in between competent authority, CRDA, Sakhamuru and defendant No.4 dt.03.11.2017.
Senior Civil Judge,
Mangalagiri. * 23 O.S.222/2012
IN THE COURT OF SENIOR CIVIL JUDGE, MANGALAGIRI
Present: Sri Karanam Chinranjeevulu,
Senior Civil Judge, Mangalagiri
Monday, the 18th day of January, 2016
O.S.No.222 of 2012
Between: Sangavarapu Lakshmi Gayatri, W/o.Purnachandra Babu, aged about 44 years, Hindu, House-hold, R/o.D.No.1-1347, Opp: South Galigopuram, Hospitals Road, Mangalagiri Town and JCJC, Guntur District. ….Plaintiff
And
1. Sanagala Kali Parameswari W/o.lakshmi Narasimha Sastry, aged about 75 years, Hindu, Old-age, R/o.D.No.1-1347, Opp: South Galigopuram, Hospitals Road, Mangalagiri Town and JCJC, Guntur District.
2. Sanagala Rama Hanuman, S/o.Lakshmi Narasimha Sastry, aged about 60 years, Hindu, Retd.School Teacher, R/o.Secondary Grade Teacher, C.K.Junior College, Mangalagiri Town and JCJC, Guntur District.
3. Rayapati Rajya Lakshmi W/o.RSGV Prasad, aged about 61 years, Hindu, Retd VRO, R/o.Opp: Sireesha Threatre Road, Kuchipudi village, Movva Mandal, Krishna District, Avanigadda JCJC.
4. Sanagala Sesha Anjaneya Gopal, S/o.Lakshmi Narasimha Sastry, aged about 45 years, Hindu, Teacher, ZP High School, R/o.D.No.10-318/7, Srinagar Colony, Yerrabalem village, Mangalagiri Town and JCJC, Guntur District.
……Defendants
This Suit is filed by the Plaintiff against the defendants for partition of the plaint schedule property into five equal shares and for allotment of one such share to the plaintiff and defendant 1 to 4 by metes and bounds and for separate possession thereof and for costs of the suit.
Plaint presented on: 27.12.2012 Plaint filed on:28.12.2012
Cause of action : The cause of action for the suit arose on 09.09.1978 when the late Lakshmi Narasaiah @ Lakshmi Narasimha Sastry purchased the plaint schedule property and on 14.12.2003 when the late Lakshmi Narasaiah @ Lakshmi Narasimha Sastry, died intestate on leaving behind him the plaintiff and defendants as his legal heirs and time to time when the plaintiff demands for partition of the schedule property did not give fruitful result due to non cooperation of defendants 1 and 2 and since one week days when the 2nd defendant open proclaiming that he certainly dispossess her from the plaint schedule property by hook and crook and at Mangalagiri town, where at the plaint schedule property is situated - all within the jurisdiction of this Court.
24 O.S.222/2012
Particulars of valuation :
The value of the plaint schedule properties is Rs.16,38,000/- X 1/5 = Rs.3,27,600/- ; on which a fixed Court fee of Rs.200/- is herewith paid U/s.34(2) of APCF & SV Act, 1956.
Jurisdictional value at Rs.3,27,600/-.
This suit came before me on 29.12.2015 for final hearing in the presence of Sri K.Siva Reddy, Advocate for the plaintiff and Defendants 2 to 4 were remained Exparte, and of Sri P.Sivannarayna, Advocate for the defendant NO.1 and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, this Court made doth order and preliminary decree as follows:
I)That the suit filed by the plaintiffs be and the same is hereby decreed preliminarily. ii)that partitioning the plaint schedule property into five equal shares and for allotment of one such share with separate possession to the plaintiff ; iii) there shall be no order as to costs.
Given under my hand and the seal of the Court, this the 18th day of January, 2016.
Senior Civil Judge,
Mangalagiri.
TABLE OF COSTS
Description For Plaintiffs: For For Rs. Ps.DefendantDefendantsNo.3 No.1and 2 :to 8 : Rs. Ps.Rs. Ps.
1 Stamp on Vakalat2-00---- 2 Plaint fees5526-00---- 3 Petition Stamp------ 4 Stamp on process------ 5 Pleaders Fees---- 6 Typing Charges------ 7 Writing Charges------
Costs taxed 5528=00ExparteCM and FC not Total Rs.CM and FC notfiled filed 25 O.S.222/2012
Note: 1. Plaint schedule is attached to the decree.
2. NB. An amount of Rs.5,526/- is paid towards deficit Court fee on 28.01.2020 as per orders in I.A.857/2019 in O.S.No.222/2012 dated 25.02.2020 as per the direction of the judgment dated 18.01.2016.
Senior Civil Judge,
Mangalagiri.