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IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE, KURNOOL.
Present:- Sri V. Srinivas, I Additional District Judge, Kurnool.
Monday, the 27th day of December, 2021.
ORIGINAL SUIT No.30/2014
1. K. Ramadevi
2. K. Rama Subbamma… Plaintiffs - Vs -
1. K. Nagamma [died]
2. K. Ravi Kumar @ K. Venkata Subbanna
3. K. Venkateswarlu
4. K. Ramakrishnamma
5. K. Sreenivasulu [amended as per orders, dt.06.08.2019
in I.A.203/219]... Defendants
This suit coming on 13-12-2021 for hearing before me in the pres- ence of Sri Yanamala Sreenivasulu, Advocate for plaintiffs,
Sri V. Venkateswara Reddy, Advocate for the defendants 2 & 3 and
Sri G. Karunakara Rao and Sri S. Babu Saheb, Advocates for the 5th defendant and 4th defendant having remained exparte, upon hearing the arguments and having stood over for consideration till this day, this Court delivered the follow- ing:
J U D G M E N T
This is a suit filed for passing of preliminary decree, seeking partition and separate possession of 1/6th share of plaintiffs 1 & 2 each and allot 1/6th share each to defendants 1 to 5, in the plaint schedule properties by metes and bounds; cancellation of settlement deeds vide document
Nos.304/2014, dt.17.02.2017 of SRO, Nandikotkur and 305/2014, dt.17.02.20214 of SRO., Nandikotkur, as void; to ascertain the mesne profits pending suit by separate application under Order 20 Rule 12 CPC., and for suit costs.
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2.The brief averments of the plaint are as follows:
(a)1st defendant and her husband Venkata Swamy are having three daughters and three sons i.e., plaintiffs and 4th defendant and defendants 2, 3 & 5, respectively and they constituted Hindu undivided joint family, to which, Venkata Swamy was head of the family and the schedule properties are in joint possession and enjoyment of their family. The said
Venkata Swamy died without making any partition of the schedule properties among them. But the defendants 2 and 3, taking advantage of the old age of their father, played fraud and got executed settlement deeds on 17.02.2014 under Doc. No. 305/2014 and 304/2014 in their favour, respectively towards the schedule properties by means of gift, which is against law.
(b)During the life time of their father in the year 2012, he was intending to partition the schedule properties, but defendants 2 & 3 did not cooperate and mislead the plaintiffs. Meanwhile, defendants 2 & 3 by influencing their father, who was hospitalized in February, 2014, on the pretext of better treatment, got discharged their father from the hospital, and took him to Sub-Registrar’s Office, Nandikotkur, where, created the said gift settlement deeds on 17.02.2014, though their father was not in a position to execute any document with free consent and volition.
(c)Their father died on 28.03.2014, on which, they requested defendants for amicable partition by cancelling the said deeds, for which, defendants 2 & 3 refused and defendants 4 & 5 did not show interest to join with plaintiffs for filing suit. The schedule properties though in joint possession and enjoyment of their family, defendants 2 & 3 are planning to 3 alienate the properties covered under settlement deeds, apart from other Items in the schedule properties. Since they are having 1/7th share in the schedule properties, and as there is no option left for them, they filed the present suit seeking partition of the schedule properties.
3.On receipt of summons, 4th defendant remained exparte. The 2nd defendant filed written statement, which was adopted by defendants 1 & 3, where as 5th defendant filed written statement, separately.
4.The 2nd defendant contended in the written statement as follows:
(a)The schedule properties are neither ancestral nor joint family properties. Late Venkata Swamy had acquired Item Nos.1 to 6, 8 and an extent of Ac.2.40 cents as per Item Nos.9,and Item No. 10, 14, 17, 18 & 19, shown in the suit schedule, are his own/self properties, purchased during his life time with his own earnings.
(b) In detail, Venkata Swamym (their father) and one Khadar
Saheb jointly purchased an extent of Ac.2.06 cents in Sy.No.780, thereby, half of the share of Venkataswamy i.e., Ac.1.03 cents was shown in Item No.1. Like- wise, Item No.4 of suit schedule property in an extent of Ac.2.00 in
Sy.No.758/3A, was purchased jointly by Venkata Swamy and Kuruva Naganna and as per their mutual understanding, Venkata Swamy took Ac.0.58 cents as his share. In Sy.No.7 to an extent of Ac.3.30 cents, shown in Item No.6 of schedule property purchased jointly by Venkata Swamy and Pedda Seshanna and an extent of Ac.1.65 cents fell to the share of Venakta Swamy and in Item
No.10 an extent of Ac.1.70 cents was taken by Venkata Swamy towards his 4 share, who purchased along with Sekhara Reddy, Veera Sudhakar Reddy and
Yellaiah jointly to an extent of Ac.6.80 cents in Sy.No.849/B.
(c)1st defendant being wife of Venkata Swamy and mother of plaintiffs and defendants 2 to 5, had also purchased an extent of Ac.4.92 cents in Sy.No.73/1 of Tartur village, jointly with Khadar Sab and she got Ac.2.46 cents towards her share in Item No.7 and Item No.10 consists of Ac.6.80 cents in Sy.No.849B, purchased by her husband along with others, Ac.1.70 cents fell to the share of 1st defendant, who succeeded the same after demise of her husband and the properties shown in Item Nos.12 and 13, are exclusively belongs to 1st defendant having absolute right, title and interest over it, as such, no one can seek share during her lifetime.
(d)The agricultural land to an extent of Ac.0.21 cents in
Sy.No.2A and an extent of Ac.4.04 cents in Sy.No.2B in total Ac.4.25 cents shown in Item No.9, is purchased by himself with his own earnings, thereby, he alone has absolute rights on it, in which, nobody can seek partition. Like-wise 3rd defendant also purchased agricultural land in an extent of Ac.0.10 cents in
Sy.No.261; an extent of Ac.0.30 cents in Sy.No.267/3; an extent of Ac.1.52 cents in
Sy.No.270 and an extent of Ac.0.50 cents in Sy.No.269/A3 of Nandikotkur with his own earnings and they are shown in Item No.11 of schedule property, on which, nobody can seek partition.
(e)During the life time of Venkata Swamy, he voluntarily gifted an extent of Ac.0.52 cents to the 2nd defendant and an extent of Ac.0.51 cents to 3rd defendant in Sy.No.780 shown in Item No.1; an extent of Ac.2.46 cents to 2nd defendant and Ac.2.45 cents to 3rd defendant in Sy.No.418/1 out of total 5 extent shown in Item No.2; an extent of Ac.1.87 cents to 2nd defendant and
Ac.1.87 cents to 3rd defendant in Sy.No.728 out of total extent shown in Item
No.3; an extent of Ac.1.65 cents and house bearing NO.17-86, Subba Rao peta,
Nandikotkur to 2nd defendant shown in Item No.17; an extent of Ac.0.58 cents in Sy.No.758/3A to 3rd defendant shown in Item No.4; an extent of 1.16 cents in
Sy.No.149/D to 3rd defendant shown in Item No.5 and house bearing No.17-101,
Subba Rao peta, Nandikotkur and house bearing NO.18-72 Sangaiah Peta,
Nandikotkur to 3rd defendant shown in Item Nos.18 and 19 under registered gift settlement deeds, dated 25.02.2014, respectively. Venkata Swamy being the absolute owner of said property, having right, gifted the same, thus, nobody has right to claim any self acquired property, thereby, plaintiffs cannot seek cancellation of settlement deeds, as plaintiffs are not at all parties to the settlement deeds.
(f)Item No.8 of suit schedule property was purchased by
Venkata Swamy, who had given to 1st plaintiff (transposed 5th defendant), who also obtained pattadar pass book and title deed in the name of his wife and he is having possession and enjoyment and 1st plaintiff also purchased Ac.4.00 cents in Sy.No.883/B out of total extent of Item no.15, but the survey number mentioned wrongly as 880/B and further 1st plaintiff also in possession of
H.No.17/83-4, Subba Rao Peta, Nandikotkur, which is purchased by Venkata
Swamy, who had given to him, but it is not shown in schedule and the remaining extent of Ac.5.50 cents in Sy.No.885/2 out of total extent mentioned in Item No.15, purchased by 1st defendant, is her self acquired property.
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(g)The plot in Sy.No.817 to an extent of Ac.0.05 cents of
Nandikotkur shown in Item No.14 of suit schedule, is not belongs to their family and no plot is in possession and enjoyment of late Venkata Swamy or his ancestors.
(h)The property shown in Item No.16 of suit schedule, was submerged in Srisailam Project during the life time of Venkata Swamy, for which, Government had paid compensation. Therefore, 1st plaintiff and defendants 1 to 3 being absolute owners of their respective properties, shown in suit schedule, are in enjoyment since long time.
(i)The court fee paid by plaintiffs u/S.34[2] of APCF & SV Act is wrong, as the property is not joint family property and not in joint possession and enjoyment, hence, they have to pay court fee u/S.34[1] of APCF & SV Act, as such, the suit is not maintainable and prayed to dismiss the suit with costs.
5.The 5th defendant contended as follows:
(a)The suit schedule properties are not ancestral properties of late Venkata Swamy, who acquired them with his own earnings. Item No.1 is gifted to defendants 2 and 3, who are also owners of Item No.2. Item Nos.3 to 6 & 10 are in possession and enjoyment of defendants 2 and 3. 2nd defendant is the owner of Item Nos.9 & 17 while 3rd defendant is the owner of Item Nos.11, 18 & 19 as per the gift settlement deeds executed by Venkata Swamy during his life time being the absolute owner of the same, whereas Item No.16 was acquired by Government.
(b)Plaintiffs have shown Item No.8 of plaint schedule property wrongly suppressing true facts, as the land in Sy.No.432C to an extent of 7
Ac.1.22 cents is self acquired property of Venkata Swamy, who had given to this defendant and he obtained pattadar pass book and title deed in the name of his wife Radha having possession and enjoyment and that the land in
Sy.No.432-2AC to an extent of Ac.1.22 cents is ‘D’ patta given to his wife and further he himself purchased Ac.4.00 of agricultural land in Sy.No.883/B, out of total extent of Item No.15, but survey number is shown wrongly as 880/B by plaintiffs and moreover, he purchased a house bearing No.17/83-4 situated in
Subbarao Peta, Nandikotkur with his own funds. Item Nos.7, 12 & 13 are the own properties of 1st defendant, who is their mother.
(c)Earlier, in November,. 2013, 1st plaintiff approached him stating that an amount of Rs.1,50,000/- is in the Court account pertaining to the land which was submerged in Srisailam project, then, himself along with 2nd plaintiff approached the remaining defendants, who stated that no amount is pending in the account of any court, later, 2nd plaintiff approached him stating that she had engaged an Advocate, who assured her that the amount will be returned to them, believing the words of 2nd plaintiff, he signed in blank vakalath, but to his surprise, in April, 2014, remaining defendants approached him and questioned about the suit, then, he asked 2nd plaintiff to remove his name from the suit record, for which, she gave assurance, but she did not do so. Later he came to know that deliberately, 2nd plaintiff kept his name in the suit records, on which, he has been transposed as 5th defendant in the suit.
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(d)The plaintiffs never in joint possession and enjoyment of plaint schedule properties and the court fee paid by them is not correct and finally prays to dismiss the suit with costs.
6.Basing on the pleadings of both parties, my learned predecessor has framed the following issues:-
1.Whether Items 1 to 19 of the suit schedule properties belong to the joint family of plaintiffs 1 to 3 and defendant No.4? If so, are they liable for partition?
2. Whether Item no.16 was acquired by the Government and compensation was given to K. Venkata Swamy? If so, is not available for partition?
3.Whether Item nos.7, 12 & 13 are the self acquired properties of defendant no.1?
4.Whether the Item nos.9 & 11 are self acquired properties of D2 and D3 respectively?
5.Whether Item nos.1 to 6, 8 to 10, 14, 17 to 19 are self acquired properties of late K. Venkata Swamy?
6.Whether plaintiffs are not entitled to seek for the cancellation of Registered settlement deeds in Dos.Nos.304/14 & 305/14, dt.17.02.2014?
7.Whether there is no joint possession of the suit properties as claimed? If so, the Court fee should have been paid u/S.34[1] of APCF and SV Act?
8.Whether there is no cause of action to the suit, and the alleged cause of action is an invented one?
9.Whether the plaintiffs are entitled for partition as claimed?
10. To what relief?
7.During the trial, on behalf of plaintiffs, they themselves examined as PWs.1 and 2, respectively and got marked Exs.A1 to A3 and no third party witnesses were examined on their behalf. On behalf of defendants, Dws.1 to 9 were examined and got marked Exs.B1 to B24.
8.Arguments:
a.The counsel for the plaintiff’s submitted that the Plaintiffs have filed the above suit seeking the reliefs against the defendants for 9 cancellation of settlement deeds, partition and separate possession of suit schedule properties Item nos.1 to 19. The counsel for the plaintiff further submitted that the head of their family, who is their father, late K.Venkata
Swamy was died intestate on 28.03.2014, and he resided at Nandikotkur by doing agriculture and that the Plaintiffs and defendants are constitute joint
Hindu family.
b.The counsel for plaintiffs further submitted that the suit schedule properties under Item Nos.1 to 19 are in joint possession and enjoyment of the plaintiffs and defendants, during the life time of K.Venkata
Swamy, their father late K.Venkata Swamy has been promised to partition and separate possession of the joint family properties among the coparceners and that the properties are situated in different places like wise, at Nandikotkur,
Mandlem, Tartur, Prathakota, Tatipadu and Loddipalli villages and being joint possession of Plaintiffs and defendants.
c.The counsel for plaintiffs further submitted that the
Defendants 2 and 3 played fraud and by taking a chance as their father was old aged and got executed the properties in their name by way of Settlement
Deed’s on 17.02.2014 vide Doc.No. 304/2014 in favour of D2 and 305/2014 in favour of D3 with a view to get wrongful gain by making fraud through which, they got some of the plaint schedule properties, as Gift from their father late
K.Venkata Swamy. In fact law does not permit that no joint family property be gifted by one of coparcener without permission of other concern, and that it is nothing but detriment of right of other holders under Hindu Succession Act.
10 d.The counsel for plaintiffs further submitted that as per
Section 6 of Hindu Succession Act, 1956 and as amended by Act 39 of 2005, with effect from 09.09.2005, a daughter or son are having equal rights in coparcenery property and entitled for their right. In fact, as D2 and D3 are not cooperated for amicable partition and separate possession of schedule properties and that D2 and D3 influenced K.Venkataswamy, when he was hospitalized in the month of February 2014, and they took him to Sub
Registrar’s office, where they have created above two fraudulent settlement deeds and that in fact at the time of execution of alleged documents ,late K.
Venkata Swamy was not in a position to understand and to transfer the properties with full state of mind in view of his ill health.
e. The counsel for plaintiffs further submitted that even on the request of plaintiff’s, D2 and D3 refused to cancel the documents, in fact, defendants and plaintiffs are entitled for 1/6th share each equally in the suit schedule properties. Having no other option the plaintiffs filed the present suit to cancel the documents bearings nos. 304/2014 and 305/2014 of SRO
Nandikotkur, in favour of D2 and D3 and filed the suit for partition and separate possession of schedule properties.
f. It is further submitted that late K. Venkata Swamy and his fore fathers lived by doing agriculture and in view of circumstances,late K.
Venkata Swamy had purchased the properties with the out come of agriculture income from joint family properties and specifically mentioned as tobacco leaves business, which is commercial crop, thereby all the properties are joint family properties. It is further submitted that even in alleged gift deeds, there 11 is clear recital as the properties are succeeded by the executor from elders. So it is crystal clear that the properties are ancestral properties in nature as per
Ex.A1 and Ex.A2 (Doc. No. 304/2014 in favour of D2 and Doc. No. 305/2014 in favour of D3).
g.The counsel for plaintiffs submitted that even in the evidence, DW1 admitted the facts as his father got prepared Ex.A1 and A2, and he know the contents of Ex.A1 and A2, and that settlement deeds with Doc.
Nos.304 and 305 of 2014, they are specified as the property got from ancestors by way of succession. DW2, who is another brother of DW1 also admitted the same facts in his deposition, and that the contents of the settlement gift deeds, i.e., Ex.A1 and A2 were read over to DW3/ one of the attestor of settlement deeds, and he admitted that properties shown in Ex.A1 and A2 are correct.
h.It is submitted that DW4, who is the husband of Defendant
No.4, admitted as his father in law late K. Venkata Swamy acquired some of the properties from his ancestors and some of them were purchased. In fact DW4, who is the elder son in law of K. Venkata Swamy was having knowledge of family affairs in detail and further admitted that the plaint schedule properties are ancestral and joint family properties.
i.It is further submitted that DW5, who is brother of DW1 and
DW2 also admitted the same facts as stated by DW1, hence it is crystal clear that the suit schedule properties Item no.’s 1 to 19 are ancestral and Hindu joint family properties and are liable for partition and so called settlement deeds are to be declared as void. It is further submitted that DW6 is the third party to the suit proceedings, examined on behalf of defendants, who is 12 related as maternal uncle to the wife of DW5. DW6 also admitted the fact as the defendants and their fore fathers are agriculturists and in fact he was admitted as Item nos.1 to 19 are joint family properties.
9.As against the arguments of plaintiffs, defendants submitted as follows:
These defendants submit that the suit schedule properties are not joint family properties and they are the self acquired properties of
Late K. Venkata Swamy who is the husband of defendant no.1 and father of defendants no.2 to 5 and plaintiffs. To prove the case of these defendants, they examined DW1 to DW4 and marked Exs. B1 to B13. The properties in Item nos.
1 to 6 and 8 are the self acquired properties of Venkata Swamy and he purchased the said properties covered in said Items under Exs.B4 to B7, B11 and B12. The said property purchased during his life time with his own earnings. The said K. Venkata Swamy purchased an extent of Ac.1.03 cents which is shown in Item no.1 in plaint schedule under Ex.B1.
10.ISSUE No 2:
a.Under this issue, it is to be settled, whether Item no.16 was acquired by the Government for Srisailam Project and compensation was given to K. Venkata Swamy as is pleaded by the contesting defendants ?, If so, is not available for partition? To answer this, as per the case of plaintiffs, per plaint, Item No.16 to an extent of Ac.3.74 cents in Sy.No.72/B known as
Satyamaiah Chenu in Prathakota [v] within the Sub Registration District of
Nandikotkur belongs to joint family property. Whereas, PW.1 in her evidence, strongly contended that all the properties, in particular Item No.16 also their 13 joint family property and her father was in possession and enjoyment, but when specific question was put to PW.1 in her cross examination, she stated that she has not filed any document to show that plaint schedule properties are ancestral properties and further stated that she do not know whether any properties were purchased by her father or he has acquired and that she do not know specifically about Item no.16, as well PW.2 also stated in her evidence that plaint schedule properties belongs to her ancestors by name
Jambanna and his father as per their contention. But she also stated in the cross examination that she do not know whether any documents filed to show plaint schedule properties are their ancestral properties and this witness in particular PW.2, categorically admitted some extent of land submerged in
Srisailam project, and land acquisition proceedings taken place, and her father received compensation, but she do not know the survey number or extent of land acquired by government.
b.Thus from the evidence of Pws.1 and 2, there is no material evidence in respect of Item no.16 to make believe this Item i.e., Item no 16 is their joint family property as is contended by plaintiffs in their evidence. On the other hand, both 2nd defendant as well as 5th defendant consistently state both in written statement and evidence that Item no.16 was acquired by government for Srisailam project, and that land was submerged, for which compensation was also given to their father. Further 5thdefendant categorically stated in his written statement that in November, 2013, 1st plaintiff i.e., Rama Devi approached him, stating that an amount of
Rs.1,50,000/- was in the court account pertaining to the land which was 14 submerged in Srisailam project, then himself along with 2nd plaintiff Rama
Subbamma went to the court and came to know that no amount was pending in the account of any court, but to his surprise, plaintiffs i.e., Rama Devi and
Rama Subbamma, using the papers which were signed by him and kept with them, on their behalf, and also on his behalf, filed suit for partition, saying that
Item no.16 is also available for partition. In-fact, no such land is available since it was submerged in Srisailam project and even before submerge, that land was acquired by government and compensation was also given to their father and same was reiterated by D1 and D2 as well D5 in the written statements.
c.Since the plaintiffs claimed suit property in particular Item no.16, is available for partition, but PW.2 admits same property was acquired by government and some compensation was paid to her father. So, the burden is heavily on the plaintiffs to prove that it was joint family property and available for partition and also disprove the contention of defendants that the land was not submerged nor acquired nor given any compensation to their father. As already stated supra, PW.2 admits same that the land i.e.,Item no 16 was acquired by the government and it is the specific case of D2 to D5 through their written statements that Item no.16 was acquired by government, thereafter compensation was also paid to their father and thereafter, this land was totally submerged in Srisailam project. In this back drop, it can be said that no such property is available for partition and no positive evidence is placed by plaintiffs that Item no.16 was not acquired by government rather available for partition and compensation was given to K. Venkata Swamy. In 15 view of these circumstances, this court negative the case of plaintiffs and answered the issue in favour of defendants.
11.ISSUE NO.3:
a.Under this issue, it is to be settled, whether Item nos.7, 12 & 13 are the self acquired properties of defendant no.1? It is the contention of defendants that Item nos.7, 12 and 13 are self acquired properties of 1st defendant. If the said properties are self acquired properties, the question that arose for consideration is whether those properties can be called as joint family properties, if so, whether they are liable for partition.
b.As it is the defense of defendant no.2 in his written statement that Item no.7, which is agricultural land to an extent of Ac.2.46 cents situated in Tartur [v] of Jupadu Bungalow known as Thatimanu chenu, was acquired by the mother of plaintiffs by name K. Nagamma (defendant no1), who is the wife of Venkata Swamy and she has purchased the said land along with one Khader Saheb and total extent is Ac.4.92 cents, out of which, half share i.e., Ac.2.46 cents was in her name, which is reiterated by D5 in his written statement in respect of this Item.
c.So far as Item no.12 is concerned, it is an agricultural land in
Sy.No.265 to an extent of Ac.3.56 cents situated in Loddipalli [v] of Orvakal [m] within the boundaries specified in the plaint schedule, is also exclusively belongs to K. Nagamma, as the documents are stand in her name and Item no.13 which is also an agricultural land in Sy.No.266 to an extent of Ac.0.50 cents known as Burdigundla Varimadi Chenu situated in Loddipalli [v] of 16
Orvakal [m]. This land is also stands in the name of their mother K. Nagamma and it is her exclusive property.
d.There is no cloud with regard to these particular extents of lands, because plaintiffs neither adduced any positive evidence as it is a joint family property or they were acquired by their father Venkata Swamy, in the name of their mother Nagamma.
e.On the other hand, as already stated by D2, D3 and D5 those
Items i.e., 7, 12 and 13 are absolute properties of D1-K. Nagamma, who died intestate during pendency of the suit, thereby, these properties are available for partition, because they are absolute properties of D1, which is stated by D2,
D3 and D5 in their written statements and D1 adopted the statement of D2, the land covered under Item nos.12 and 13 are that of her absolute properties. D1 is none other than a lady, who got land in her name, in view of S.14 of Hindu
Succession Act, she is the absolute owner, if she would not have been alive, these properties are not available for partition, but because of her death, during pendency of the suit, intestate, though they are absolute properties of
D1, it cannot be said the properties covered by Item nos.7, 12 and 13 are joint family properties and it can be safely said they are exclusive properties of D1.
Hence, I answered this issue accordingly.
12.ISSUE NO.4:
a.Under this issue, it is to be settled, whether Item nos.9 & 11 are self acquired properties of D2 andD3 respectively?.It is the specific case of defendants in particular D2, whose written statement was adopted by D3 is that Item nos.9 and 11 are self acquired properties of D2 and D3. When 17 perused the plaint schedule, Item no.9 is an agricultural land in Sy.No. 2A & 2B and 3, to an extent of Ac.6.65 cents in Thatipadu [v], Jupadu Bunglow, known as
Durgamma Chenu. D2 in his written statement specifically contended that an agricultural land to an extent of Ac.0.21 cents in Sy.No.2/A and an extent of
Ac.4.04 cents in 2/B in total Ac.4.25 cents shown as Item no.9 is purchased by himself with his own earnings, thereby, he alone has absolute right over it and nobody can seek partition. In support of the same, Defendant No.2 filed registered sale deed dated 21.06.1976 vide Doc.No.1096/1976 executed by one
Lakshmamma, V. Pedda Rosaiah and V. Rosaiah in favour of 2nd defendant
V. Subbanna @ K. Ravi Kumar covered under ExB9.
b.As against the same, there is no evidence placed by plaintiffs, except their pleadings in the plaint and they could not stand in the cross examination that Ex.B9 is a spurious document or fake document created by Defendant No2. When Ex.B9 stands in the name of D2, which related to
Item no.9, when there is no other positive evidence in favour of plaintiffs to make believe the said property belong to joint family and when 2nd defendant, who claimed it is his self acquired property, filed Ex.B9, contrary evidence is to be placed on, by the plaintiffs to prove that it is self acquired property of their father Venkata Swamy, who purchased in the name of D2 under Ex.B9 and nowhere they stated either PW.1 or PW.2 their father Venkata Swamy purchased Item no.9 in favour of 2nd defendant. Therefore, Item no.9 is purchased by D2 and proved to be the property of D2, thereby, it is his self acquired property and plaintiffs cannot claim any right over the said property.
18 c.Even D5, who is another brother of D2, states the same in his written statement. Thus, not only the pleadings as well as in the oral evidence,coupled with Ex.B9 states, it is the self acquired property. In these circumstances, this court is of the view that Item no.9 belongs to D2 and he alone has absolute rights on it, in which, nobody can seek partition.
d.Like-wise, it is the specific case of 3rd defendant that he has purchased an extent of Ac.0.10 cents in Sy.No.261, an extent of Ac.0.30 cents in
Sy.No.267/3, an extent of Ac.1.52 cents in Sy.No.270 and an extent of Ac.0.50 cents in Sy.No.269/A3 was purchased by him under Ex.B10, which was shown as Item no.11 of suit schedule. It is the specific assertion of D3 as it is his self acquired property and got it marked as Ex.B10 through Dw.1 that D3 was examined as DW.2 and in his evidence, he has categorically stated that Item no.11 is absolute property of him and cannot claim as joint family property by anybody.
e.Even for this Item also,there is no positive evidence adduced by plaintiffs to disprove the contentions of D3 nor any document to disbelieve
Ex.B10 and to disbelieve the testimonies of Dws.1 and 2 in that regard. D5 who is another brother consistently admits Ex.B10 which was covered by a sale deed said to be executed by one Narasimhaiah in favour of Venkateswarlu, who is D3 herein vide Doc.No.682/95, which is in respect of Item no.11 of schedule property on which, nobody can seek partition. As already stated the oral evidence coupled with documentary evidence placed by D2 and D3, through their testimonies and also proved Ex.B10 which Item no.11 belongs to
D3, and as there is no positive evidence in favour of plaintiffs to show it is a 19 joint family property as is contended in the plaint. In these circumstances, this court is of the view that Item nos.9 and 11 are self acquired properties of D2 and D3 respectively. I answered this issue accordingly.
13.ISSUE Nos.5 & 6:
a.Whether Item nos.1 to 6, 8 to 10, 14, 17 to 19 are self acquired properties of late K. Venkata Swamy And whether plaintiffs are not entitled to seek for the cancellation of Registered Settlement Deeds in
Dos.Nos.304/14 & 305/14, dt.17.02.2014?. To answer these issues, it is specific case of the defendants that Item nos.1 to 6, 8 to 10, 14, 17 to 19 are self acquired properties of late K. Venkata Swamy and that plaintiffs are not entitled to seek for the cancellation of Registered settlement deeds in Dos.Nos.304/14 & 305/14,dt.17.02.2014 as they are not parties to the deeds and in support of that pleading, they have filed documents to show those properties are self-acquired properties of late K. Venkata Swamy. Since D1, who died during pendency of suit, though Item Nos.7, 10, 12 and 13 are self acquired properties of D1, initially, subsequent to her death, they can be treated as self family properties of D1, remains property of family of D1.
b.Contra to the same, it is the contention of plaintiffs that they constituted Hindu Undivided Joint Family, to which, their father late Venkata
Swamy was head of the family and the schedule properties are in joint possession and enjoyment of their family. The said late Venkata Swamy died without making any partition of the schedule properties among them. But the defendants 2 and 3, taking advantage of the old age of their father, played fraud and got executed settlement deeds on 17.02.2014 under Doc. No. 305/2014 20 and 305/2014 in their favour, respectively towards the schedule properties by means of gift, which is against law. They further contended that during the life time of their father in the year 2012, he was intending to partition the schedule properties, but defendants 2 & 3 did not cooperate and mislead the plaintiffs.
Meanwhile, defendants 2 & 3 by influencing their father, who was hospitalized in February, 2014, on the pretext of better treatment, got discharged their father from the hospital, and took him to Sub-Registrar’s Office, Nandikotkur, where, created the said gift settlement deeds on 17.02.2014, though their father was not in a position to execute any document with free consent and volition.
It is specific defense that defendants obtained the documents under fraud and misrepresentation.
c.On this aspect, it is keep in mind that there is settled law relating to fraud and misrepresentation.
i.Krishyna Mohan Kul Alias Nani Charan Kul v. Pratima
Maity and others reported in 2004(9) SCC page 468 at para 12, the
Honourable apex court held:
“….A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage 21 has been taken of his position. This principle has been enshrined in Section 111 of the Indian Evidence Act, 1872……..”.
ii.In another Judgment reported in AIR 1951 SC 280 in between Bishunudeo Narin Vs. Seogeni Rai and Jagernath in which the
Apex Court held at para 28 that “there is one rule which is better established than any other, it is that in case of fraud, undue influence and coercion, the parties pleading must set forth full particulars and the case can be decided on the particulars as laid. There may be no departure from them in evidence.
Generally allegations are sufficient event of amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be , and the sa`1me applies to undue influence and coercion”.
iii.In another Judgment reported in (2010) 1 Supreme Court
cases 83,between Grasim Industries Limited and another Vs. Agarwal
Steel, in which Supreme Court held that : “when a person files a document, there is presumption, unless there is proof of force of fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful person (since their money is involved) would have ordinarily read and understood a document before signing. Hence the presumption would be even stronger in their case. There is no allegation of force or fraud in this case.” d.In the back drop the above settled law, it is to be seen, whether the plaintiffs who have taken the plea of fraud, the evidence in case of 22 fraud, undue influence and coercion, the parties pleading, must set forth full particulars and the case can be decided on the particulars as laid. But as could be seen from the pleadings and evidence, no such material placed by the plaintiffs. There is no evidence on record to show that the defendants 2 and 3, taking advantage of the old age of their father, played fraud and got executed settlement deeds on 17.02.2014 under Doc. No. 305/2014 and 305/2014 except their self serving pleading in their plaint. No evidence at all placed by the plaintiffs, on the other hand the defendants have to prove their case that their father executed the gift deeds in their father not under fraud and misrepresentation.
e.But for the defense taken by the defendants 1 and 2, they placed the evidence. The first defendant who was examined as DW.1 (K. Ravi
Kumar) stated in the chief examination, reiterated his pleadings as they have not obtained the properties from their father under fraud and misrepresentation and in the cross examination that they are six(6) children to their parents. He further stated that plaintiff no.1 is his younger brother(before transposed) and plaintiffs 2 and 3 are his elder sisters. He further stated that Nagamma(D1) is his mother, D3-Venkateswarlu is his younger brother and D4-Ramakrishnamma is his elder sister. He further stated that his ancestors have no property, and his father was having agricultural lands in six different villages, which are Nandikotkur, Mandlem,
Tartur, Tatipadu, Loddipalle and Prathakota, which are his self acquired properties and that his father died at the age of 95 years on 28.03.2014.
23 f.He further stated that his father got it prepared Ex.A1 and
A2 on his own volition and he know the contents of Exs.A1 & A2, wherein his father stated that the properties mentioned in them were acquired by him [K. Venkata Swamy] from his ancestors by way of succession. This part of evidence is taken by the plaintiffs to cancel the gift deeds, on which only, this suit is filed. But it is only a stray sentence and that the other documents filed by defendants 1 and 2 clearly show otherwise. Thus this part of statement can be taken as sole and final to decide the properties are ancestral. Not only stated above, he also stated in his evidence that his father was doing Tobacco business. That was not denied by the plaintiffs and that fact was not focused by plaintiffs.
g.The Second defendant who was examined as DW2 (K. Venkateswarlu) stated in the chief examination, reiterated his pleadings and in the cross examination that his mother was having immovable properties in Loddipalli village. He is working as ASI, Central Armed Force in the year 1995 and worked in different states all over India. His father was hale and healthy even at the time of his death and died due to old age ailments at 95 years old. His father gave sufficient properties to his sisters and then, he also gave properties to them. In the year 1995 he was aged 19 years. The above fact was also not rebutted by the plaintiffs.
h.The fifth defendant who was examined as DW.5 by name
K. Sreenivasulu stated in his chief examination reiterated his pleadings and in the cross examination that the plaintiffs are his elder sisters and that he know the contents of the documents filed by the elder brother and the younger 24 brother, who are Defendant Nos.1 & 2 and that his father was raising tobacco, cotton and groundnut crops in his land. His father was an agriculturist, where as his maternal grand father was a Shepherd. His father was not an Income
Tax Assessee.. It is elicited in the cross examination that the contents of documents filed by D1 to D3 are correct. His father was healthy till his death but plaintiffs filed suit to claim share in amount, received from land acquisition officer for acquiring their lands.
i.One of attestor in the gift deed was examined as DW.3 by name M. Maddilety, who deposed in the chief examination in consistent with the case of the defendants and in the cross examination, it is elicited that he lives by doing cultivation at Nandikotkur and he is an illiterate and he can only sign in Telugu and he knows where plaint schedule lands are situated and further stated that his maternal uncle Venkataswamy was aged about 90 years at the time of his death, he was hale and healthy till his death. Thus his evidence established that execution of Exs.A1 & A2 settlement deeds by late
Venkata Swamy, while in sound state of mind, in question, are not at all due to any misleading facts by the defendants.
j.The plaintiffs, who have taken the plea of fraud, the evidence in case of fraud, undue influence and coercion has not all proved, on the other hand, defendants, who have taken the defence that the the suit Items 1 to 6, 8 to 10, 14, 17 to 19 are self acquired properties of late K. Venkata Swamy and they were settled by their father and in order to prove the same not only their oral evidence but also examined DW.3 by name M. Maddilety, who is attestor of settlement deeds through him, proved their case, but also placed 25 documentary evidence i.e., Ex.B1: Registration copy of registered sale deed, dt.28.01.1980 and Ex.B2: Registered sale deed, dt.08.06.1951,Ex.B3: C.C. of sale deed, dt.24.02.1983,Ex.B4: Registered sale deed, dt.06.07.2002,Ex.B5: Registered sale deed, dt.17.05.2001,Ex.B6: Registered sale deed, dt.22.07.1952, Ex.B7: Copy of registered sale deed, dt.20.08.1980, Ex.B11:Registered sale deed, dt.14.06.2004,Ex.B12:Registered sale deed, dt.15.06.2004, and Ex.B13:Certified copy of sale deed, dt.25.01.1980, all these documents go to show these properties are self acquired properties of late Venkata Swamy and these sale deeds referred above clearly prove it is self acquired properties of Late
Venkata Swamy and as he was absolute owner, he can execute the gift/settlement deed. Besides the plaintiffs are not parties to the gift deeds, said to have executed by late Venkata Swamy. Thus the claim of the plaintiffs is not tenable under law. Hence, I answered the issue against the plaintiffs.
14.ISSUE No 7:
In this issue, it is to be seen whether there is any joint possession of the suit properties and if so, the Court fee should have been paid u/S.34[1] of
APCF and SV Act. It is an admitted fact that Item Nos.7, 10, 12 and 13 of the suit schedule properties are in joint and available for partition. In
A.Divakrupamani vs. A.Sakuntala Devi-2000(2) ALD-754, in which it was held that “suit for partition and possession alleging joint possession and paid fixed court fees, court has to act on the plaint allegations”. Thus the law is as settled possession alleging joint possession, fixed court fee can be paid by the plaintiffs and as per plaint allegations, Item Nos.7, 10, 12 and 13 of the suit schedule 26 properties are in joint. Thus the court fee paid is correct and I answered this issues accordingly.
15.ISSUE NO.8:
As there was a joint family property, which is Item No.10 available for partition as well 1st defendant, who is a member of that family, died during pendency of suit, and as her properties are also available for partition, and that it is specific contention of plaintiffs that there was a fraud while obtaining properties by defendants 2 and 3 through settlement of deeds and to challenge the same, plaintiffs 1 and 2 came to the court to redress their claim over the properties, thus, the defendants cannot canvas as plaintiffs have no cause of action for the suit or canvas that the cause of action is invented one, thereby, I answered the issue that the plaintiffs have got cause of action to file the suit against the defendants.
16.ISSUES 1 & 9:
a.Under these issues, it should be seen what are the properties that are available for partition among Items 1 to 19 of the suit schedule properties, which said to be belong to the joint family of plaintiffs 1 and 2 ? If so, whether are they liable for partition and whether the plaintiffs are entitled for partition as claimed?
b.As already stated in above issues, it is stated that, while deciding the Issue no 2, it is decided that Item no.16 was acquired by the
Government for Srisailam Project and compensation was given to K. Venkata
Swamy and said land is not available for partition.
27 c.So far as in Issue nos.5 & 6, it was decided that the suit schedule properties in Item Nos.1 to 6, 8 and 9, 14, 17 to 19 are self acquired properties of late K. Venkata Swamy and they were settled by their father regarding Items 1 to 6,8, 14 17, 18 and those self acquired properties of late
Venkata Swamy settled in favour his sons in a sound state of mind.
d.So far Item no.8 is concerned, PW 1 states in her disposition that she do not know whether Item no.8 of plaint schedule property was given to 1st plaintiff (5th defendant) by her father and in turn, he gave same property to his wife, who also got pattadar pass book in her name. Apart from the same,
PW.1 further admitted that the transposed 5th defendant (1st plaintiff earlier) purchased house bearing D.No.17/83-4 in Nandikotkur with his own funds in the year 2011. She do not know the name of vendor. She do not know whether her father executed will in respect of some properties in her favour and also in favour of 1st plaintiff. She do not know whether her father canceled the said will as they have not looked after him well. Therefore Item no8 is also not available for partition.
e.So far as in Issue no 3, it is decided that Items i.e., 7, 12 and 13 are absolute properties of D1-K. Nagamma, who died intestate during the proceedings of the suit, thereby, these properties are available for partition, because they are absolute properties of D1, which is stated by D2, D3 and D5 in their written statements and D1 adopted the statement of D2, the land covered under Item nos.12 and 13 are that of her absolute properties. D1 is none other than a lady, who got land in her name, in view of S.14 of Hindu Succession
Act, she is the absolute owner, if she would not have been alive, these 28 properties are not available for partition, but because of her death, during pendency of the suit, intestate, though they are absolute properties of D1, it cannot be said the properties covered by Item nos.7, 12 and 13 are joint family properties and it can be safely said they are available for partition as properties of D1.
f.The plaint pleadings speak of the schedule properties are in joint possession and enjoyment of their family, defendants 2 & 3 are planning to alienate the properties covered under settlement deeds, is concerned in deciding the above issues, this court decided what are properties available for partition. More so, from the testimonies of PW.1 & PW2, it is very clear and categorical admission that they have no documents to show all the suit properties are joint family properties, as is contended in the plaint.
g.On close perusal of cross examination of PW.2 in particular, it is elicited that she cannot say which Item of property got by her father through which person, and that she can not say that all plaint schedule properties are their ancestral properties or not and that she cannot say which
Item of plaint schedule property, is in possession of which person and from which date. It is further elicited that the plaint schedule properties belong to her ancestors i.e., Jambanna and her father as per their contention, but she do not know whether they have filed any document to show that plaint schedule properties are their ancestral properties.
h.Thus, it is proved and found out to be true that her father was living by doing cultivation and also Tobacco business only. That means
Item nos.1 to 6, 8, 14, 17 to 19 are self acquired properties of late K. Venkata 29
Swamy. Otherwise there should be some evidence to accept their contention and he settled those properties in the name of sons of Late Venkata Swamy.
i.Dws.1 & 2 further stated that their father K. Venkata Swamy and one Khadar Saheb purchased jointly to an extent of Ac.1.03 cents which is shown in Item no.1 in plaint schedule under Ex.B1. The said K. Venkata Swamy and one Kuruva Naganna, S/o. Kuruva Subbanna and Kuruva Naganna, S/o.
Sayanna, jointly purchased the extent of Ac.2.00 cents in Survey No. 758/3A under Ex.B2. Dws.1 & 2 further stated that as the said Venkata Swamy purchased the same jointly, he took Ac.0.58 cents as his share with the commitment between them which is shown as Item no.4 of plaint schedule and the said K. Venkata Swamy and one Pedda Seshanna jointly purchased to an extent of Ac.3.30 cents in Sy.No.7. Dws.1 & 2 further stated that as he purchased it jointly, his half share would be Ac.1.65 cents which is shown as
Item no.6 in plaint schedule and their father K. Venkata Swamy and one
Sekhara Reddy, Veera Sudhakar Reddy and Yellaiah jointly purchased to an extent of Ac.6.80 cents in Sy.No.849/B under Ex.B3.
j.In nutshell, D1 is none other than a lady and mother of plaintiff’s as well as D2 to D5, having land in her name regarding the Item nos.7, 12 & 13, in view of S.14 of Hindu Succession Act, she is the absolute owner, if she would not have been alive, these properties are not available for partition, but because of her death, during pendency of the suit, intestate, though they are absolute properties of D1, but parties are all children of
Defendant no.1, it can be safely said that they are available for partition. Apart from those properties, as Item no. 10 was purchased jointly, the share of said 30
K. Venkata Swamy fell to as Ac.1.70 cents which is shown as Item no. 10 of plaint schedule, which is available for partition. Theses issues are answered accordingly.
17.ISSUE NO.10:
In the result, the suit is partly preliminarily decreed, and that the plaintiffs and defendants 2 to 5 are entitled to 1/6th share each in Item Nos.7, 10, 12 and 13 of the suit schedule property, with metes and bounds. The rest of the claim of plaintiffs is dismissed. The plaintiffs are at liberty to file a separate application u/O.20 R.12 of CPC., to ascertain mesne profits. Considering the relationship between the parties, each party do bear their own costs.
Partly dictated to the Stenographer and partly typed to my dictation, corrected and pronounced by me, in open Court, on this the 27 th day of December, 2021.
I ADDITIONAL DISTRICT JUDGE,
KURNOOL.
Appendix of Evidence (Witnesses examined)
For Plaintiffs:
PW.1 : K. Rama Devi
PW.2 : K. Rama Subbamma
For Defendants:
DW.1 : K. Ravi Kumar
DW.2 : K. Venkateswarlu
DW.3 : M. Maddilety
DW.4: K. Veera Bhadrudu
DW.5: K. Sreenivasulu
DW.6: K. Eswaraiah
DW.7: A. Thejeswari Devi 31
DW.8: K. Lakshmi Prasanna
DW.9: C.G. Veera Reddy
Exhibits Marked For Plaintiffs:
Ex.A1: Certified copy of Registration copy of register settlement deed, dt.17.02.2014.
Ex.A2:Certified copy of register settlement deed, dt.17.02.2014.
Exs.A3 to A23: Valuation certificates [21 in number]
For Defendants:
Ex.B1: Registration copy of registered sale deed, dt.28.01.1980 along with neat copy.
Ex.B2: Registered sale deed, dt.08.06.1951.
Ex.B3: C.C. of sale deed, dt.24.02.1983.
Ex.B4: Registered sale deed, dt.06.07.2002.
Ex.B5: Registered sale deed, dt.17.05.2001.
Ex.B6: Registered sale deed, dt.22.07.1952.
Ex.B7: Copy of registered sale deed, dt.20.08.1980.
Ex.B8: Registered sale deed, dt.22.03.1979.
Ex.B9: Registered sale deed, dt.22.03.1979.
Ex.B10:Registered sale deed, dt.18.03.1995.
Ex.B11:Registered sale deed, dt.14.06.2004.
Ex.B12:Registered sale deed, dt.15.06.2004.
Ex.B13:Certified copy of sale deed, dt.25.01.1980.
Ex.B14:Registered sale deed, dt.20.06.1981 consisting of four pages.
Ex.B15:Certified copy of 1-B Namoona, dt.26.08.2016.
Ex.B16: Copy of Adangal, dt.26.08.2016 for Fasli 1426
Ex.B17:Sale deed, dt.08.10.2007
Ex.B18:Pattadar pass book
Ex.B19:Application under RTI Act, dt.28.02.2020.
Ex.B20:Application under RTI Act, dt.28.02.2020.
Ex.B21:Application under RTI Act, dt.28.02.2020.
32
Ex.B22: Instruction issued by the Assistant Director of Agriculture,
Nandikotkur, dt.02.03.2020.
Ex.B23:Official information given to DW.5 as per the instructions of Asst.
Director of Agriculture, Nandikotkur along with covering letter.
Ex.B24:Information given by Mandal Agriculture Officer, Jupadu
Bungalow.
I ADDITIONAL DISTRICT JUDGE,
KURNOOL.