Allowed

P.Nagabhushanam v. Ch.Narasimha Chari and 10 Others

Telangana HC6 Dec 2012SA/1159/2000

Case brief

AI extract

What is this about?

This second appeal dealt with a suit for partition and cancellation of a prior decree. The Appellate Court held the suit barred by limitation, noted the plaintiffs were born after the property sale and thus had no rights by survivorship, and allowed the appeal.

What did the court decide?

The appeal was allowed with costs; the defendants are entitled to the suit properties; partition decree dismissed.

P.Nagabhushanam Vs Ch.Narasimha Chari and 10 Others — Property and Title | Telangana HC (2012)

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HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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S.A.No.1159 of 2000

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JUDGMENT:

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This second appeal is admitted by my predecessor on substantial question of law No.5 mentioned in the grounds of appeal; it reads as follows:

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5 i) Whether the lower appellate Court held that the plaintiffs failed to prove that the decree in O.S.No.201/83 is collusive, is right in decreeing the suit O.S.No.40/93? ii) When defendants 1 to 3 in their capacity as kartas of joint family have sold the suit lands in favour of defendant No.4 for family necessity, can the plaintiff being the children defendants 1 to 3 dispute the sale of suit lands?

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iii) Whether the suit O.S.No.40/93 is barred by resjudicata in view of the decree in O.S.No.201/83 which is binding on the plaintiff? iv) Whether the plaintiffs are entitled for any relief in a collusive suit? v) Whether the plaintiffs suit for partition is maintainable in respect Inam lands in view of the provisions of A.P.(Telangana Area) Abolition of Inams Act, 1955.

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2. The plaintiffs 1 to 8/respondents 1 to 8 filed the suit in

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the trial Court for partition of the plaint schedule property of

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Ac.3.17 guntas in S.No.213 and Ac.2.07 guntas in S.No.214 of Saidapur village, Yadagirigutta Mandal, Nalgonda District, totaling Ac.5.24 guntas. Apart from the relief of partition, the plaintiffs are also claiming cancellation of decree in O.S.No.201 of 1983. The plaintiffs 1 to 8 are children of the defendants 1 to 3 respectively. The defendants 1 to 3 are brothers. Their father Chandraiah died long back. It is the plaintiff’s contention that the plaint schedule properties are ancestral properties of their family and they are entitled for shares therein. The defendants 1 to 3 remained exparte in the Courts below. The 4^th defendant claims to be purchaser of the suit properties from the defendants 1 to 3 in the year 1971. In the year 1983, the 4^th defendant filed O.S.No.201 of 1983 against the defendants 1 to 3 for declaration of his title for the suit lands and for consequential reliefs. The said suit was decreed in favour of the 4^th defendant. It is the 4^th defendant’s contention that in view of sale of the suit lands by the defendants 1 to 3 in the year 1971 long prior to birth of the plaintiffs 1 to 8, the plaintiffs have no rights in the suit lands to claim any share therein. The trial Court passed preliminary decree; and on appeal by the 4^th defendant, the lower appellate Court partly allowed the appeal upholding

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decree in O.S.No.201 of 1983 and further holding that the 4^th defendant is entitled for the rights of the defendants 1 to 3 in the suit lands.

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3. In this appeal, it is contended by the appellants’ counsel that when once decree in O.S.No.201 of 1983 is upheld accepting sale of the suit lands by the defendants 1 to 3 in the year 1971, the question of the plaintiffs 1 to 8 becoming entitled to any share in the suit lands does not arise at all. On the other hand, it is contended by the counsel for respondents 1 to 8/plaintiffs 1 to 8 that the alleged sale of the suit lands by the defendants 1 to 3 in favour of the 4^th defendant in the year 1971 is not by any written document and in the absence of any such written and registered document, the 4^th defendant will not get any rights in the suit properties. It is also contended by the appellants’ counsel that relief of cancellation of the decree in O.S.No.201 of 1983 is clearly barred by time and that the plaintiffs who were born long after in the year 1971 cannot acquire any right for any share in the suit properties.

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4. Ex.A.34 certified copy of decree in O.S.No.201 of

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1983 is dated 30.11.1983 in favour of the 4^th defendant against the defendants 1 to 3 declaring rights of the 4^th

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defendant in the suit properties. The present suit in the lower Court is filed in the year 1993 after 10 years of the said decree for its cancellation. The lower appellate Court after considering evidence on record, found on facts that sale of suit land by the defendants 1 to 3 in favour of the 4^th defendant cannot be said to be either sham or collusive and that the plaintiffs miserably failed to prove any collusion in

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obtaining decree by the 4^th defendant against the defendants 1 to 3 in O.S.No.201 of 1983. There is no dispute that the plaintiffs 1 to 8 were born in and after the year 1976 and this fact is evident from Exs.A.50 to A.54 certificates filed by the plaintiffs giving their ages by Head Master, Upper Primary School. In the year 1971 when the defendants 1 to 3 sold suit lands to the 4^th defendant, none of the plaintiffs was born. By the time of their births, their family did not hold or possess any of the plaint schedule lands. Therefore, the question of the plaintiffs 1 to 8 acquiring rights by birth in the joint family properties did not arise at all, as their joint family did not possess or hold any property by the time of their respective births. It cannot be said that share of late Chandraiah who is father of the

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defendants 1 to 3 devolve on the plaintiffs 1 to 8. When the properties are ancestral properties or joint family properties, devolution of property by inheritance or succession does not happen. On death of Chandraiah, which is prior to birth of the plaintiffs, share of Chandraiah devolved on the defendants 1 to 3 by survivorship; and the said defendants 1 to 3 sold away their entire rights in the suit property of the 4^th defendant in the year 1971. There is nothing on record to show whether sale of land in favour of the 4^th defendant was in writing and registered. But there is a valid decree in O.S.No.201 of 1983 passed by a Civil Court against the defendants 1 to 3 who are respective fathers of the plaintiffs 1 to 8 declaring the 4^th defendant’s rights and title for the suit properties. According to the plaintiffs and as per plaint allegations, the 4^th defendant is said to have come into possession of the suit properties in the year 1983 after obtaining the decree Ex.A.34. Therefore, the plaintiffs could not sleep over and file the suit in the year 1993 for cancellation of the decree passed in the year 1983. The plaintiffs could not prove that they came to have knowledge of Ex.A.34 decree only within 3 years prior to filing of the present suit in the lower Court. In that view of the matter, the

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suit filed by the plaintiffs is hopelessly barred by limitation.

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5. The sequence of events reveal that after having sold the suit lands to the 4^th defendant, the defendants 1 to 3 have set up their minor children to re-agitate the matter by filing a suit on behalf of minors through respective mothers of the minors who are the respective wives of the defendant 1 to 3. Apart from there being semblance of any legal rights in the plaintiffs in the suit properties, this litigation is also not bonafide. I find that the plaintiffs’ suit is barred by limitation and that the plaintiffs are not entitled for decree for partition even in the imaginary share of late Chandraiah.

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6. In the result, the appeal is allowed with costs.

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____________________________ SAMUDRALA GOVINDARAJULU,J

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Dt.6^th December, 2012

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PNV

P.Nagabhushanam v. Ch.Narasimha Chari and 10 Others

Case brief

What is this about?

What did the court decide?

P.Nagabhushanam v. Ch.Narasimha Chari and 10 Others

Case brief

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