Partly allowed

Dasari Roop Kiran Kumar, Guntur Dist v. Dasari Rambabu, Guntur Dist

Andhra Pradesh HC16 Dec 2019CRP/4453/2015

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision Petition challenging an appellate order that remanded a partition suit for allowing necessary parties (sisters) to be added. The Court set aside the remand order, directed the trial court to restore the suit, and settled an issue regarding maintainability and non-joinder.

What did the court decide?

The apology filed in the appeal court (I.A. No.20/2013) is set aside. The suit is restored to the trial court with a new issue settled on maintainability for non-joinder of necessary parties.

Dasari Roop Kiran Kumar, Guntur Dist Vs… — Succession and Inheritance | Andhra Pradesh HC (2019)

¶1

HON’BLE SRI JUSTICE M. VENKATA RAMANA

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C.M.A.No.672 of 2015 & C.R.P.No.4453 of 2015

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COMMON ORDER:

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The third defendant is the appellant. The plaintiff is the first respondent. Defendants 1, 2 and 4 are respondents 2 to 4 respectively.

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The first respondent laid the suit for partition of the plaint schedule properties into four equal shares and to allot one such share to him, as well as the appellant and respondents 2 and 3 respectively. The property in dispute is described in the plaint schedule, as under:

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“Guntur District, Tenali sub-district, Chinaravuru village D.No.172/3(near T.S.No.165 in 5^th block 7^th ward of Tenali Municipality) an extent of 195.0 sq. yards = 163.03 sq.meters of vacant site bounded by East : Bazaar

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South : Property of Dasari Rama Mohana Rao West : Property of Vadlamudi Gopala Krishnaiah North : Property of Penumaka Veera Raghavaiah Within these boundaries an extent of 195.0 sq. yards = 163.03 sq. meters of vacant site only.”

¶8

The relationship among the parties is not in dispute. The first respondent, the appellant, respondent Nos.2 and 3 are the sons of Sri Dasari Seshaiah. Fourth respondent is the wife of the third respondent. Sri Dasari Seshaiah died on 18.12.1990. Undisputedly, the property mentioned in the plaint schedule, which shall be herein after referred to as ‘the suit house’, was acquired by Sri Dasari Seshaiah during his lifetime.

¶9

The case of the plaintiff in the plaint is that their father Sri Dasari Seshaiah died intestate and therefore, he and his brothers have succeeded to the estate left behind him. This property, according to plaint averments, has been in their joint possession and enjoyment. It was further averred in the plaint that though the first respondent

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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demanded his brothers to cooperate for partition of the suit house into four equal shares and to allot one such share to every one of them, initially, the appellant as well as respondents 2 and 3 agreed, who went on postponing the same on one pretext or the other. Since respondents 3 and 4 got the house demolished about ten days prior to the institution of the suit removing the material worth Rs.3.00 lakhs, as per the plaint averments, which was on account of execution of a gift settlement deed by D1 on 23.07.2008, in favour of the fourth defendant of this property, on the pretext of relinquishment of his alleged half share by the second respondent in favour of the third respondent under a registered deed dated 03.04.2008, the suit was laid.

¶13

Opposing the claim of the first respondent, the appellant, respondents 2 to 4 filed a written statement in the name of the third respondent. It was adopted by respondent No.2 and respondent No.4. The claim of the appellant as well as respondents 2 to 4 was that, apart from these brothers, Smt.Anantha Lakshmirajyam, Smt.Dasari Rama Kumari, Smt.Kakumanu Jyothirmayee and Smt.Bandari Bhramara Mallika Chamundeswari have been their sisters and LRs to succeed to the estate of their father Dasari Seshaiah. Smt.Dasari Rama Kumari had taken to Christianity, who married one Mr.Jacob, who severed her relationship with the family of the parents. Other sisters got married during lifetime of their father and as per the averments in the written statement, the children of Sri Seshaiah after their marriages, have been residing separately while the third respondent lived with his father in the suit house till his death.

¶14

It was also averred in the written statement that there was a family arrangement orally, whereby the suit house was agreed to be

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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shared among the first respondent, the appellant and the third respondent equally upon the death of their father, which the first respondent and third respondent had agreed offering not to claim any share in the suit house since they were given sufficient amount by their father towards their share upon sale of the agricultural land as well as a tiled house with vacant site in the year 1979, at Chadalawada village in Prakasam District. The averments in the written statement were also that the daughters of Sri Seshaiah, could not claim any right to the suit house as per this oral arrangement.

¶18

Thereupon, as per averments in the written statement, pursuant to this oral arrangement, since the second respondent and the appellant became absolute owners of the same, the second respondent relinquished his half share under a registered document dated 03.04.2008, in favour of the appellant, who in turn, executed a registered gift deed, out of love and affection to his wife, viz., the fourth respondent on 23.07.2008 giving away the suit house. It was also averred in the written statement that the appellant as well as the fourth respondent intended to construct a regular house in the place of the old house and hence, they obtained permission from Tenali Municipality for construction of a two storied building. Thereupon, as per the averments in the written statement, the appellant as well as the fourth respondent got the structure demolished and began to construct a new building. In those circumstances, as per the averments in the written statement, the first respondent and the third respondent together approached the appellant as well as the fourth respondent, demanded them to pay Rs.3.00 lakhs so that they would not interfere with the ongoing construction, against the terms of the oral

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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arrangement. Thus, they opposed the plea of the first respondent in the plaint.

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A separate written statement was filed by the third respondent, who also referred about the composition of the family and further stated that he never refused to cooperate with the first respondent for partition of the suit house, in which he is ready to take part at any time.

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On the material, the following issues were settled for trial:

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Whether there was oral family arrangement for the plaint schedule property in the year 1987, if so, whether defendants 1 and 3 became absolute owners?

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Whether defendant No.4 has been in exclusive possession and enjoyment of the plaint schedule property with absolute rights?

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Whether the Court fee paid by the plaintiff is correct?

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Whether the plaintiff is entitled to seek partition of the plaint schedule property, if so, to what share?

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Whether the plaintiff is entitled to seek partitioning the amount of Rs.3,00,000/- claimed by him and for interest on his share?

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To what relief?

¶30

At the trial, the first respondent examined himself as P.W.1 and marked Exs.A1 to A6. Whereas, the appellant examined himself as D.W.1 and no documents were marked on his behalf.

¶31

Upon consideration of the material as well as evidence, after hearing the parties, learned trial Judge dismissed the suit by the decree and judgment dated 15.02.2012 on the ground that daughters of Sri Seshaiah have not been brought on record and the suit being one for partition, their presence is necessary for adjudication of the dispute.

¶32

The first respondent preferred an appeal against the above decree and judgment on to the file of the Court of learned XI Additional District Judge, Tenali, in A.S.No.115 of 2012. Considering the material on record, as well as contentions of the parties, the appellate Court directed

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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remand of the matter for fresh consideration observing in para-17 of the judgment as under:

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“In the result, the petition in I.A.No.20/2013 in A.S.No.115/2012 is allowed permitting the appellant/plaintiff to add the respondents 5 to 9 as D5 to D9. Consequently, the appeal is allowed. The Judgment and Decree, dated 15.02.2012 passed in O.S.No.128/2010 on the file of Additional Senior Civil Judge, Tenali is set aside. The matter is remanded to the lower Court with a direction to permit the plaintiff to carry out the amendments allowed in I.A.No.20/2013 and after the appearance of the parties if any and on receipt of pleadings if any, the lower Court shall frame such additional issues if any and take such additional evidence if any from either party and dispose of the matter afresh, notwithstanding of any of the observations made herein. Since, the matter is sufficiently old, the lower Court is directed to dispose of the matter as expeditiously as possible, but preferably within six months. Both the parties are directed to appear before the lower Court on 11.08.2015 to receive instructions from the lower Court and proceed with the compliance of the directions given herein and no further notice is required for their appearance before the lower Court. In the circumstances, each party do bear their own costs.”

¶37

It was so directed in view of I.A.No.20 of 2013 filed on behalf of the first respondent under Order I Rule 10 CPC as well as Order VI Rule 17 read with Section 151 CPC to bring the sisters of the appellant and his brothers on record being LRs of their father Sri Seshaiah and upon allowing the same. Against this judgment of the appellate Court, the present C.M.A. is preferred, by the appellant. 14. Heard Sri V.V.L.N.Sarma, learned counsel appearing for the appellants/revision petitioners and Sri N. Srihari, learned counsel for respondents.

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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Now the point for determination is-“Whether remand of the suit to the trial Court by the appellate court, in the circumstances, is permissible and justified?

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POINT :

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The dispute is in respect of the plaint schedule house. This property was originally purchased by Dasari Seshaiah in the year 1967 for valuable consideration under a sale deed from the erstwhile owner Sri Vemulapalli Rangarao. Sri Seshaiah died on 18.12.1990 leaving behind this property as his estate. The appellant and respondents 1 to 3 are the sons of Sri Seshaiah. He left behind four daughters viz., Smt. Anantha Lakshmi Rajyam, Smt. Rama Kumari, Smt. Jyothirmayee and Smt. Bramara Mallika Chamundeswari. Wife of Sri Seshaiah, pre-deceased him. The fourth respondent is the wife of the appellant.

¶43

One of the daughters of Sri Seshaiah, Sri Bramara Mallika Chamundeswari, died. Daughters or Sri Seshaiah their legal representatives, as the case may be, were not made the defendants in the suit filed by the first respondent for partition. On the ground that they are the co-sharers to the property in dispute, and without their presence in the suit, the same being bad, the learned trial Judge, chose to dismiss the suit. In the appeal preferred against the judgment of the trial Court, in order to meet the above situation, I.A.No.20 of 2013, under Order-I, Rule-10 CPC, read with Order-VI, Rule-17 CPC, read with Section 151 CPC, was filed on behalf of the first respondent in an attempt to bring on record, not only sisters but also children of Smt. Bramara Mallika Chamundeswari. Learned Appellate Judge has chosen to allow the same and in consequence, allowed the appeal, setting aside the decree

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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and judgment of the trial Court and remanded the matter to the trial Court as stated above.

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It is contended for the appellant that the order of remand of the first appellate Court is bad. The reasons assigned on behalf of the appellant, in this context, are that the first respondent had laid the suit with his eyes and ears wide open, knowing full well about his sisters, who are, otherwise, necessary parties to the suit. When he deliberately avoided to bring them on record, which fatally effected his claim in the suit, permitting them to be brought on record, by means of a petition under Order-I, Rule-10 CPC, at the appellate stage, cannot be deemed proper. Thus, assailing order of remand so passed being not in consonance with Order-XLI, Rule-23 or Rule-23-A CPC and, particularly, when failure to bring other co-sharers or L.Rs.of the deceased co-sharer as parties to the suit, being fatal, it is requested to set aside the judgment of the first appellate Court.

¶48

On behalf of the first respondent, it is contended, supporting the judgment of the first appellate court, referring to the circumstances under which the matter could be remanded in terms of Order-XLI, Rule25 CPC.

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The basis for dismissal of the suit by the trial court is non-joinder of daughters of Sri Seahaiah as necessary parties to the partition suit.

¶50

The third respondent, as the second defendant, in his written statement, specifically referred to his sisters and further contended that there is a custom in their family that after marriages of daughters, they would not claim any right or share in the estate of their parents. As seen from the judgments of the Courts below, it appears that the appellant

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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was cross-examined on behalf of the first respondent denying such custom alleged by the third respondent of disinheritance of daughters.

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These circumstances do have certain significant bearing in this matter. It is quite evident from the material on record that all these brothers, joined together, setting out claims to the estate of their father to the exclusion of their sisters. In such situation, the trial Court should have necessarily framed an issue about the fatal effect of non-joinder of these necessary parties viz., the sisters of the appellant as well as respondents 1 to 3. Without settling an issue, dismissal of the suit cannot be held proper.

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I.A.No.20 of 2013 was allowed by the appellate court to ward off effect of non-joinder of sisters, as referred above, warranting remand of the matter to the trial Court, to consider afresh, as directed in the judgment of the appellate Court. This order of remand falls within the scope of Order-41, Rule-23-A CPC.

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Reliance is placed on behalf of the appellant in J.Balaji Singh vs.

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Diwakar Cole & Ors.¹ , in this context. Explaining the scope of Order-XLI,

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rules-23, 23-A and 25 CPC, in Paras-18 & 19, it is observed as under:

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“18. So far as Order 41 Rule 23 is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that the Trial Court has disposed of the suit upon a preliminary point. The Appellate Court in such cases is empowered to direct the Trial Court to decide all the issues on evidence on record.

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19. So far as Rule 23-A is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that though the Trial Court has disposed of the suit on all the issues but on reversal of the decree in appeal, a re-trial is considered necessary by the Appellate Court.

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20. So far as Rule 25 is concerned, it enables the Appellate Court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the Trial Court. The Appellate Court in such case may, accordingly, frame the issues and refer the same to the Trial Court to take the evidence and record the findings on such

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AIR 2017 SC 2402

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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issues and return to the Appellate Court for deciding the appeal. In such cases, the Appellate Court retains the appeal to itself.”

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25. Kandi Chokka Reddy and another v.Kandi Linga Reddy² is also

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relied on for the appellant, wherein the given facts and circumstances in para-14 as under:

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“14…..An order of remand can be passed only when it is found that the evidence, which otherwise were to have been taken into account, was not permitted or that any serious lapse has occurred in the proceedings before the trial Court. One recognized principle is that whenever an appellate Court feels the necessity of remanding the matter to an inferior Court, it must desist from expressing views on any aspect. Otherwise, it would become a contradiction, in terms. If a finding is recorded by the lower appellate Court, the very basis or purpose of remanding the matter to the trial Court will cease to exist……”

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26. Municipal Corporation, Hyderabad v. Sunder Singh³ is also relied

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on in the same context. In Para-10 of this ruling with reference to effect

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of Order-41, Rule-23 CPC, it is observed as under:

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“10. Order XLI Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.”

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27. On behalf of the respondents, reliance is placed in Bachahan Devi

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and Ors. Vs. Nagar Nigam, gorakhpur and Ors .⁴ In respect of

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application of Order-41, Rule-25 CPC in para-10, it is stated as under:

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“10. A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring in application of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression 'may'. But the further question that arises

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2010(2) ALT 225

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3.AIR 2008 SUPREME COURT, 2579

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AIR 2008 SC 1282

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required.”

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As seen from the judgments of the courts below, with reference to family arrangement set up by the appellant, it has been categorically held that the same was not substantiated at the trial. Effect of recitals of Ex.A1-gift deed executed by the appellant in favour of his wife viz., 4^th respondent, was taken into consideration by the learned trial Judge, which conspicuously omitted the source of acquisition of title by the appellant to the property in dispute. The relinquishment deed said to have been executed by the second respondent in favour of the appellant was not brought on record at the trial. Even, giving away certain amounts to the daughters of Seshaiah towards Pasupukumkuma as pleaded by the appellant in his written statement was not clearly established by means of evidence at the trial.

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Therefore, with reference to issue No.1 settled by the learned trial Judge referred to supra, there are clear and categorical findings recorded by the trial Court and they have been confirmed by the judgment of the first appellate Court.

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Possession of the property, having regard to nature of the suit, cannot have bearing and whatever be the claim of the appellant in respect of the house in dispute, certainly it shall be subject to the stand of his sisters.

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Findings with reference to issue No.4 of the trial Court were mainly considered by the learned appellate judge and consequences of allowing I.A.No.20 of 2013 filed by the appellant, for addition of his sisters as parties to the suit.

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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In this context, observations in Bachan Devi relied on by the respondent of the Hon’ble Supreme Court as to effect of Order-XLI, Rule25 CPC should be taken into consideration. The order of remand, in such circumstances, had been passed in terms of Order-XLI, Rule-25 CPC, it would have been more appropriate.

¶90

No such effort was made by the first respondent to add other sharers as parties to the suit, despite there was a specific reference in the written statement filed by the third respondent. In fact, it is not a disputed question of fact, in this matter. It is one of the grounds urged on behalf of the appellant questioning the remand order passed by the learned appellate Judge, probably, rightly. In such situation, when I.A.No.20 of 2013 came up for consideration before the learned appellate Judge, if the appellate court felt that it was a matter requiring certain attention by the trial Court, assigning appropriate reasons, the matter could have been remanded, at that stage itself, upon settling an appropriate issue, or in terms of Order-XLI, Rule-25 CPC, pending disposal of the appeal, the appellate Court could have called for a finding of such aspect upon settling an issue relating to the effect of non-joinder of necessary parties or other sharers to the suit, it being for partition. In stead, the learned appellate Judge, considered I.A.No. 20 of 2013, independently, directed notice to the proposed parties, and thereafter allowed the above petition.

¶91

As seen from the judgment of the appellate Court, there is a reference in Para-15 in respect of it. But, there is absolutely no discussion in respect of the nature of this petition filed under Order-I, Rule-10 CPC. The judgment of the appellate court did not reflect upon nature of objections raised on behalf of other contesting parties viz., the

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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respondent or the proposed parties nor it disclosed any reason that impelled the appellate Court to allow the petition. When once the appellate Court had chosen to allow the application in I.A.No.20 of 2013, the consequences to follow shall be to bring other sharers on record by suitably amending the plaint. This consequential action is not at all adverted to or referred to in the judgment of the appellate Court. Thus, a careful examination of the nature of the judgment of the appellate Court in so far as I.A.No.20 of 2013 is concerned; it is completely bereft of reasons.

¶95

On account of this situation, the appellant had chosen to file Civil Revision Petition No.4453 of 2015 mainly questioning allowing I.A.No.20 of 2013, without any reasons and by means of a bare reference in Para-17 of the judgment of the appellate Court. In these circumstances, accepting the contentions on behalf of the appellant, in this regard, the order so passed in respect of I.A.No.20 of 2013 has to be interfered with.

¶96

Having said so, now the question is whether this matter has to be remanded to the appellate Court or trial Court?

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The judgment of the trial court and that of the appellate Court do suffer from such infirmities as discussed supra. In such event, when the matter requires consideration with reference to presence or otherwise of other sharers in the suit for partition for final determination of the matters in issue, it is more desirable to remand this matter to the trial Court than the appellate Court. It is also a consequence of setting aside that portion of the judgment of the appellate court recording that I.A.No.20 of 2013 stood allowed. In as much as interest of justice warrants, that an appropriate issue be settled in this respect. However, the findings recorded by the learned trial Judge in respect of issue No.1

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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shall remain on record and there is no necessity to disturb these findings and which are also confirmed by the appellate Court. Having regard to the nature of issue to be settled now for the purpose of remand, in terms of Order-XLI, Rule-25 CPC, including Order-XLI, Rule-23-A CPC, the trial Court shall be directed to record findings afresh in respect of issue No.4, which is relating to the claim for partition sought by first respondent. In respect of issues 3 and 5, there is no necessity to disturb the findings recorded by the learned trial Judge.

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Therefore, in view of the above discussion, this matter has to be relegated to the trial court for consideration and determination of the issue to be settled now as well as issue No.4 already settled in the suit.

¶102

In the result, the CMA has to be dismissed subject to modification recorded hereunder. The judgment of the appellate Court in A.S.No.115 of 2012, dated 06.08.2015, stands confirmed as per terms setout hereunder, except in respect of allowing I.A.No.20 of 2013 and directions given to the trial Court in consequence thereof.

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(a) Additional issue is now settled for the trial Court to consider as under::

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“Whether the suit as filed by the plaintiff without other sharers is maintainable and if it is bad for non-joinder of necessary parties?”.

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(b) The trial Court is directed to restore the suit to its original number.

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(c) I.A.No.20 of 2013 filed in the appellate Court shall be re-numbered by the trial Court. Notice shall be given to the parties to I.A.No.20 of 2013 by the trial Court and shall decide this petition, without in any manner being influenced by any of the observations either in this judgment or in the judgment in A.S.No.115 of 2012 on the file

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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of the Court of XI Additional District Judge, Tenali, or in the judgment of the trial Court itself, dated 06.08.2015, in the suit.

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(d) Thereafter, the trial court is directed to consider the additional issue settled and stated above and also issue No.4 originally settled in the suit. The parties be given opportunity to let in fresh evidence in respect of these two issues.

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(e) Thereupon, the trial Court is directed to dispose of the suit only with reference to these two issues. It is clarified that the findings earlier recorded by the trial Court in its judgment dated 15.02.2012 on other issues stand confirmed and they shall not be considered again.

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(f) The trial Court is directed to make efforts to dispose of the suit, preferably, within a period of six months from the date of receipt of copy of this judgment. No costs.

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As sequel thereto, Interim order, if any, stand vacated. Pending petitions, if any, stand closed.

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____________________ M. VENKATA RAMANA, J

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Dt: 16.12.2019 Rns/RRR

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MVR,J CMA No.672/2015 & CRP No.4453/2015

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

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