Partly allowed

G.V. Deena Dayal v. a. Bhagirathi

Telangana HC13 Jun 2013CCCA/71/2007

Case brief

AI extract

What is this about?

The Supreme Court examined an appeal against a preliminary decree in a partition suit under Islamic law. It held that the defendant failed to prove the claim of ouster via gold ornaments. However, it modified the decree to determine the plaintiff's share in the final decree, reflecting the property area lost to road widening.

What did the court decide?

Appeal dismissed with modification to preliminary decree; area affected by road widening to be accounted for in final decree determining plaintiff's share.

G.V. Deena Dayal Vs a. Bhagirathi — Partition | Telangana HC (2013)

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*** THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND**

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*** THE HON’BLE SRI JUSTICE S.V.BHATT**

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+C.C.C.A.No.71 of 2007

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% Dated 13.06.2013

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# G.V.Deena Dayal and others.

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….Appellants

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$ A.Bhagirathgi and others

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….Respondents

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! Counsel for the appellants: Sri P.V.Vidya Sagar

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^ Counsel for respondent No.1: Sri I.V.Radhakrishna Murthy

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^ Counsel for respondent No.3: Sri Anand Kumar Kapoor

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< GIST:

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> HEAD NOTE:

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? Cases referred:

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND

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THE HON’BLE SRI JUSTICE S.V.BHATT

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C.C.C.A.No.71 of 2007

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JUDGMENT: (Per LNR,J)

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The 1^st defendant in O.S.No.67 of 2003 on the file of the learned I Additional Chief Judge, City Civil Court, Secunderabad, is the appellant. He feels aggrieved by the judgment and

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preliminary decree, dated 30.10.2006 passed by the trial Court. For the sake of convenience, the parties are referred to as arrayed in the suit.

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The plaintiff, by name Saraswathi, the mother of 3^rd defendant by name Sulochana and the 1^st defendant are the children of one late G.V.Varada Rajulu. In addition to the persons referred to above, Varadarajulu had a son by name Bhaskarulu. A plot admeasuring 2472 square yards at Walker Town (Padmarao Nagar), Secunderabad was purchased in the name of the 1^st defendant and Bhaskarulu through a sale deed, dated 22.09.1955. Bhaskarulu died unmarried in the year 1967 due to ill-health. The plaintiff filed a suit claiming one-fourth share in the estate of her deceased-brother Bhaskarulu. She pleaded that the 1^st defendant who was managing the entire property did not accede to her request to partition the same.

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The suit was mainly contested by the 1^st defendant. He did not dispute the relationship of the parties or the fact that an extent of 2472 square yards was purchased in the names of himself and his brother Bhaskarulu. He however pleaded that the plaintiff was given gold and silver ornaments of their mother, in lieu of her share in the estate of Bhaskarulu. It was also pleaded that Sulochana died four days after the 3^rd defendant was born and she has been brought up by him, and that he performed her marriage and in that view of the matter, she is not entitled to any share. The entitlement of the 2^nd defendant was also denied.

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Through the decree under appeal, the trial Court held that the plaintiff is entitled to one-fourth share in the suit schedule property.

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Sri P.V.Vidyasagar, learned counsel for the 1^st defendant submits that except the self-serving deposition of P.W.1, there is no other evidence to establish the suit claim. He contends that

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when a specific plea was raised as to ouster of the share and giving of gold and silver ornaments in lieu of it, heavy burden rested upon the plaintiff to disprove that and she did not take any steps in that direction. He further submits that the fact that none of the sisters claimed any share, when an O.P. was filed for succession on the eve of the death of their father, discloses that they gave up their rights in the property held by Bhaskarulu, on account of their having been extended the benefits of different kinds. He submits that the trial Court did not take into account, the fact that an extent of about 400 square yards of land was effected in the widening of the road and straight away the extent representing the share of the plaintiff was determined in the preliminary decree.

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Sri I.V.Radhakrishna Murthy, learned counsel for the plaintiff, on the other hand, submits that once the relationship is not disputed and the existence of property is not denied, the burden squarely rested upon the 1^st defendant to prove the plea as to ouster and there was hardly any evidence in this regard. He contends that except making a general and non-specific averment as to giving of gold and silver, neither the quantity nor its value, much less the date on which it was said to have been given, were stated.

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Sri Anand Kumar Kapoor, learned counsel for the 3^rd defendant adopted the arguments advanced on behalf of the plaintiff.

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The 2^nd defendant remained ex parte.

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The suit filed by the plaintiff was for the relief of partition and allotment of one-fourth share in the suit schedule property. The suit was contested only by the 1^st defendant and his plea was the one of ouster. The trial Court framed only one issue for its consideration viz., whether the plaintiff is entitled to the partition as prayed for?

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The plaintiff deposed as P.W.1 and she filed Exs.A.1 to A.5. The 1^st defendant deposed as D.W.1 and the 3^rd defendant as D.W.2. They did not file any documents.

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The points that arise for consideration in this appeal are

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(i) Whether the 1^st defendant proved the plea of ouster; and

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(ii) Whether the trial Court was justified in indicating the extent representing the share of the plaintiff?

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As observed in the preceding paragraphs, the relationship of the parties is not disputed. It is a matter of record that the 1^st defendant and his brother Bhaskarulu purchased an extent of 2472 square yards way back in the year 1955. Obviously, they are entitled to equal shares in the property. No relief is claimed by the plaintiff vis-a-vis the share held by the 1^st defendant. Her claim is only in relation to the share of Bhaskarulu. She could not have claimed share straight away, in view of the fact that she is not a Class-I heir of the deceased. On the death of Bhaskarulu, his Class-I heir, the mother became entitled to the property left by him. The mother of the plaintiff and defendants 1 and 2 died in the year 1979. It is thereafter, that the parties herein became entitled to claim shares vis-a-vis the property left by Bhaskarulu.

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Be it in the reply to the notice issued by the plaintiff or in his written statement, the 1^st defendant has taken the plea that the right of the plaintiff to claim share in the property left by her brother Bhaskarulu stood ousted, in view of the fact that she has been given gold and silver held by their mother. It is not uncommon that such situations arise. However, to oust a legal right that has accrued to an individual by operation of law, the person taking the plea must prove all the ingredients. If in fact the plaintiff was given gold and silver in lieu of her share, the facts that are required to be proved are (a) factum of giving of gold and silver ornaments to the plaintiff; (b) the value thereof and that of the share in the property; (c) the factum of the plaintiff

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being put on notice that the gold and silver are being given to her in lieu of her share; and (d) the acceptance of the same by the plaintiff. The evidence on record however discloses that none of these ingredients were proved. The only evidence in crossexamination in this regard reads:

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“It is not true to suggest that defendant No.1 gave the gold and gold jewellery to him. It is not true to suggest that because I was given gold and gold jewellery, I did not demand any share in the property”.

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Neither the value nor the quantity much less the point of time at which it was given, were suggested. Added to that, there was not even a suggestion that the so-called giving of gold and silver ornaments was in lieu of the share of the plaintiff or that she has agreed for that course of action. Once the sole defence offered by the 1^st defendant is unacceptable, the inevitable conclusion is that the claim of the plaintiff must be accepted. That is what the trial Court did and we answer the first point accordingly.

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The property purchased by the 1^st defendant and his brother no doubt was 2472 square yards. However, in the written statement as well as in the course of evidence, it was mentioned that an extent of about 400 square yards was effected in the widening of the road. If that is so, it needs to be taken into account while determining the property that is available for partition and thereafter, the share of each of the cosharers. That would be possible only in the final decree proceedings. The trial Court was not correct, when it mentioned the extent of share of the plaintiff in the preliminary decree itself. The preliminary decree needs to be modified to that extent.

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Hence, the appeal is dismissed, however with a slight modification in the preliminary decree to the extent that the area that is available for partition and the extent of the share of the plaintiff shall be determined in the final decree proceedings, duly taking into account the fact as to whether any area was effected in the widening of the road.

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The miscellaneous petition filed in this appeal shall also stand disposed of. There shall be no order as to costs.

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______________________ L.NARASIMHA REDDY, J

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S.V.BHATT, J Date: 13.06.2013 Note: L.R.Copy to be marked. JSU

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE S.V.BHATT

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C.C.C.A.No.71 of 2007

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Date: 13.06.2013

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JSU

G.V. Deena Dayal v. a. Bhagirathi

Case brief

What is this about?

What did the court decide?

G.V. Deena Dayal v. a. Bhagirathi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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