Dismissed

P.Khader Bee and Another v. P.Babamma and Another

Telangana HC21 Apr 2014AS/661/1995

Case brief

AI extract

What is this about?

This appeal challenges a decree dismissing a partition suit. The court upheld a relinquishment deed and a will, finding the plaintiffs ceased to be joint owners. Consequently, the plaintiffs were not entitled to any share in the property. The appeal was dismissed confirming the trial court’s decree.

What did the court decide?

Appeal Suit dismissed confirming the decree and judgment of the Additional Subordinate Judge, Tirupati dated 16.03.1995.

P.Khader Bee and Another Vs P.Babamma and Another — Succession and Inheritance | Telangana HC (2014)

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HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No. 661 OF 1995

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JUDGMENT:

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1. The unsuccessful plaintiffs in Original Suit No.130 of 1989 on the file of the Court of Additional Subordinate Judge, Tirupati, Chittoor district (for short, 'the trial Court'), preferred this Appeal challenging the decree and judgment dated 16.03.1995; whereby the suit filed by the plaintiffs, for partition of the schedule property into two equal shares, allot one such share and put them in separate possession, was dismissed.

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2. Appellants herein were the plaintiffs and the respondents herein were the defendants before the trial Court. For convenience of reference, the ranks given to the parties in O.S. No.130 of 1989, before the trial Court, will be adopted throughout this judgment.

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3. The plaintiffs filed the suit, against the defendants, for the aforesaid reliefs, alleging that the plaintiffs 1 and 2 are mother and daughter and the defendants 1 and 2 are mother and son and they belong to Dudekula community and by long usage, custom and practice they are governed by Hindu Law of Succession and thus governed by the Hindu Succession Act, 1956. The schedule property originally belong to one Proddatur Nagulu Saheb @ Obulu Saheb @ Babu Saheb, S/o. Rangiri Saheb and he along with his three sons i.e., 1) Nagulu Saheb @ Daggayina @ Purakayya, 2) Subbaiah @ Subba Saheb @ Chevitiah and 3) Rangiri Saheb @ Rangaiah are in joint possession and enjoyment of the schedule property. After the intestate death of Obulu Saheb, his undivided sons continued in joint possession and as such they became entitled to 1/3^rd share in the schedule property.

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4. The eldest son i.e., Nagulu Saheb died about 36 years ago

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leaving behind his wife Tirupathamma @ Nagamma to succeed his undivided share in the joint family property and thereafter she continued as member of undivided family, having succeeded the estate of Nagulu Saheb. The 2^nd son Subha Saheb also died about 30 years ago leaving behind his wife Khader Bee and daughter Babamma, plaintiffs herein, who succeeded his 1/3^rd share and continued as members of joint family property. The 3^rd son Rangiri Saheb too died in or around 1980 leaving behind his wife Babamma and son Babayya, defendants herein, and they are continuing as members of joint family. Subsequently, Tirupathamma, W/o. Nagulu Saheb, eldest son of the family, died intestate while continuing as member of the undivided family in the month of September, 1986 issueless. As a result, the plaintiffs and defendants succeeded her undivided 1/3^rd share and thereby entitled to half share each in the schedule property.

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5. During life time of three sons, 3^rd son, Rangiri Saheb was in management of the property and after his death his wife and son i.e., defendants herein are managing the property. Thus the plaintiffs, being the wife and daughter of Nagulu Saheb, became entitled to 1/4^th share each and in total half share in the entire property, demanded for partition of the schedule property but the defendants did not cooperate; consequently, the plaintiffs got issued a legal notice dated 22.06.1987, Ex.A-1, for partition of the schedule property and, on receipt of the same, the defendants issued a suitable reply notice dated 04.07.1987, marked as Ex.A-3 with false allegations but no reply was given by the defendants for the 2^nd notice dated 30.03.1988 issued by the plaintiffs; hence, the suit.

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6. The 2^nd defendant filed written statement and resisted the claim of the plaintiffs on two counts mainly contending that the plaintiffs are not the members of joint family since they relinquished their right in the

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undivided joint family by executing a relinquishment deed dated 04.06.1960, marked as Ex.B-1, in favour of the defendants’ father Rangiri Saheb. After execution of the registered relinquishment deed, the defendants father became absolute owner of the property and became entitled to 2/3 share in the plaint schedule property. Subsequent to the death of Nagulu Saheb, his interest in the joint family devolved upon his wife Tirupathamma, who continued to stay with the defendants’ father. After the death of Nagulu Saheb, the defendant’s father used to look after her and in consideration thereof she executed a deed dated 22.03.1975, marked as Ex.B-26, to the effect that after her death the defendants’ father should succeed to her property and enjoy the same. Subsequently, Tirupathamma died in the year 1986 and by virtue of the deed dated 22.03.1975 executed by Tirupathamma, the defendants’ father succeeded her share as a legatee under the will and thus father of defendants became absolute owner of the entire schedule property. Therefore, the question of plaintiffs continuing as members of Hindu Joint Family does not arise and the plaintiffs are not co-sharers or co-owners and as such not entitled to claim partition of the schedule property.

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7. From the date of relinquishment of the share by the plaintiffs and death of Tirupathamma, after executing a will dated 22.03.1975, the defendants’ father alone used to pay property tax and continued in possession in his own right. Subsequently, the defendants’ father sold an extent of Ac.2.50 cents to one Babu Saheb for valid consideration to the knowledge of plaintiffs and during the life time of Babu Saheb, he was in exclusive possession and enjoyment of the property of an extent of Ac.2.50 cents in Survey No.532/1. After death of father of defendants, about 8 years prior to filing the suit, defendants continued to be in exclusive possession and enjoyment of the property by obtaining Ryotwari passbook and mutated their names in the revenue records. Hence, the plaintiffs have no right to claim partition and finally

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prayed to dismiss the suit.

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8. The 1^st defendant filed a memo adopting the written statement filed by the 2^nd defendant.

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9. Basing on the above pleadings, the trial Court recasted the following issues, as the issued framed on 01.12.1989 were not necessary:

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1) Whether the plaintiffs are entitled for partition and separate possession of half share in the plaint schedule property as prayed for?

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2) Whether the defendants are the absolute owners of the suit property?

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3) To what relief?

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10. During course of trial, on behalf of the plaintiffs, 2^nd plaintiff was examined as PW.1 and marked Exs.A-1 to A-5. On behalf of the defendants, 2^nd defendant was examined as DW.1 and got examined DWs.2 to 5 and marked Exs.B-1 to B-26.

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11. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court believing the registered relinquishment deed and the will, Exs.B-1 and B-26 respectively, held that the defendants are the absolute owners of the schedule property; the plaintiffs are neither co-owners nor cosharers to seek partition of the schedule property, dismissed the suit.

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12. Aggrieved by the decree and judgment, the unsuccessful plaintiffs preferred the instant Appeal on various grounds mainly contending that placing reliance on Exs.B-1, B-2 and B-26 to conclude that the defendants became absolute owners of the schedule property is erroneous and in fact there is a specific denial of execution of Ex.B-1 by the plaintiffs and the same is not considered by the trial Court,

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dismissed the suit and finally prayed to allow the Appeal setting-aside the decree and judgment under challenge.

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13. During course of argument, Sri P. Jagadishchandra Prasad, learned counsel for the plaintiffs-appellants, would contend that the document marked as Ex.B-1 was obtained by playing fraud and, on the strength of such document, the plaintiffs were denied their legitimate share in the property and if it is excluded from consideration they are co-owners of the schedule property along with the defendants. Moreover, placing reliance on Ex.B-26, an un-registered will, is erroneous since it is not a will as per the contents of the document and it was not proved. Therefore, dismissal of the suit is erroneous and prayed to pass a decree in favour of the plaintiffs-appellants.

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14. On behalf of the defendants-respondents, despite listing the matter under the caption ‘for judgment’, several times, none appeared on their behalf.

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15. Considering rival contentions and perusing the material available on record, the points that arise for consideration are:

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1) Whether Ex.B-1 is true, valid and binding on the plaintiffs? If so, whether the defendants became owners of 2/3 share by virtue of execution of Ex.B-1? 2) Whether Ex.B-26 is a will? If so, whether the defendants became absolute owners of the entire schedule property as legatees under the will?

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16. POINT No.1: There is no dispute regarding relationship between the parties, death and succeeding the share of each of the sons of Obulu Saheb and after death of their sons, by the plaintiffs, defendants and Tirupathamma. The real controversy is revolving around Ex.B-1, a relinquishment deed executed by plaintiffs relinquishing their right in the undivided joint family property.

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17. Before institution of the suit, the plaintiffs got issued a legal notice, Ex.A-1, and the defendants issued a reply dated 04.07.1987, marked as Ex.A-3. In Ex.A-1, there was no reference about execution of relinquishment deed and when the defendants issued a reply marked as Ex.A-3, the plaintiffs got issued another notice contending that the said relinquishment deed marked as Ex.B-1 was obtained by the defendants’ father by playing fraud and deception. Curiously, the plaintiffs, in the entire plaint, did not disclose about execution of Ex.B-1 about obtaining such document by playing fraud or deception. For the first time during evidence they contended that Ex.B-1 was obtained by playing fraud and deception, without any factual foundation in the pleading. According to order VI Rule 4 of C.P.C, in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

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18. Order VI Rule 4 of C.P.C. obligates the plaintiffs to disclose the particulars of fraud, misrepresentation etc., but the plaintiffs totally omitted to mention execution of Ex.B-1 conveniently though it was brought to the notice of the plaintiffs by defendants in reply under Ex.A3. In the absence of any details as required under Order VI Rule 4, the plea of the plaintiffs that Ex.B-1 was obtained by playing fraud and deception etc., cannot be sustained since the contention of the plaintiffs is without any factual foundation in the pleadings.

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19. Even in the evidence of PW.1, 2^nd plaintiff did not disclose how the defendants’ father played fraud and deception in obtaining Ex.B-1. Mere asserting that Ex.B-1 was obtained by playing fraud or deception is not useful to the plaintiffs as there is no factual foundation in the pleadings and supported by the evidence.

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20. The trial court believed execution of Ex.B-1, as it is proved by adducing evidence by defendants 1 to 4, and that apart the sale deed executed by the defendants father and mortgage of property under Ex.B-2 in favour of one Gangaiah by Rangiri Saheb and Babu Saheb, transfer of mortgage deed by Gangaiah under Ex.B-3 in favour of Rama Naidu and discharge endorsement under Ex.B-4 does go to establish that the property was treated as an absolute property of Rangiri Saheb, father of the defendants, throughout.

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21. Ex.B-1 was executed as early as in 1960; since then it was not questioned and the defendants alone are in possession and enjoyment of the property, obtained pattedar passbook and paying land revenue, under Exs.B-7 to B-24. Therefore, the trial Court rightly came to an inescapable conclusion that both the plaintiffs executed Ex.B-1 and it was not obtained by the defendants’ father playing fraud or deception, as alleged by the plaintiffs, and upheld Ex.B-1.

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22. During course of argument, learned counsel for the plaintiffsappellants contended that Ex.B-1 is not valid but nothing is brought to my notice to disbelieve execution of Ex.B-1 by plaintiffs in favour of father of the defendants. In the absence of any material to disbelieve execution of Ex.B-1, I have no option except to conclude that Ex.B-1 is executed voluntarily by the plaintiffs in favour of the father of the defendants. Therefore, I find that Ex.B-1 is a valid document. In view of execution of Ex.B-1, the defendants father became owner of 2/3 share in the entire property during life time of Tirupathamma and after his death, the defendants succeeded the estate of their father Rangiri Saheb and became absolute owners; accordingly, in view of Ex.B-1, the plaintiffs ceased to be the members of joint family and when they are not co-owners or joint owners with the defendants, they are not entitled to claim partition of the schedule property. Hence, I hold that the plaintiffs have no interest in the property to claim share of husband

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of 1^st plaintiff and father of 2^nd plaintiff. Accordingly, the point is answered in favour of the defendants-respondents and against the plaintiffs-appellants.

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23. POINT No.2: The plaintiffs contention is that Tirupathamma died intestate leaving behind the plaintiffs and defendants to succeed her share in the joint family property thereby their share is increased from 1/2^nd to 1/3^rd . This contention is refuted by the defendants setting up the will marked as Ex.B-26 executed by Tirupathamma in favour of Rangari Saheb, father of the defendants. When the defendants propounded a will, the burden is upon them to prove execution of will by Tirupathamma in sound disposing state of mind, as required under the special rules of evidence contemplated under Section 68 of Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925. The defendants examined the 2^nd defendant as DW.2, who testified about due execution of Ex.B-26 by Tirupathamma in sound disposing state of mind. While contending that Tirupathamma used to live with the family of the defendants and, in support of their contention, they produced the voters list marked as Ex.B-5 and the relevant entry is marked as Ex.B-6 to prove that Tirupathamma was living with the family of the defendants. Therefore, in consideration of her stay with the defendants, Tirupathamma might have executed Ex.B-26 bequeathing her undivided share in favour of Rangari Saheb, father of the defendants. The defendants examined DWs.2 and 4 to prove due execution of Ex.B-26; all the witnesses in one voice testified that she executed Ex.B-26 in sound disposing state of mind and the 2^nd defendant performed cremation of Tirupathamma. In fact, Ex.B-26 is styled as panchayatnama but the nomenclature of the document is not decisive to determine nature of the transaction covered by the document; however, when the contents therein are looked into, it is only a will executed by Tirupathamma. DWs.2 and 4 are the attestor and scribe and there is no enmity between the DWs.2 and 4 and the

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plaintiffs to speak falsehood against the interest of the plaintiffs. Even otherwise, they are not interested witnesses since they are not going to get any advantage out of this litigation. Undisputedly, Tirupathamma died long ago and since then, father of these defendants, and after his death, these defendants are continuing in possession and enjoyment of the property without any interruption by anybody. Therefore, the trial Court rightly believed the will, Ex.B-26.

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24. During course of argument, Sri P. Jagadishchandra Prasad, learned counsel for the plaintiffs-appellants, would contend that the will Ex.B-26 is not proved; however, no suspicious circumstances were brought to my notice to disbelieve the execution of will by Tirupathamma in sound disposing state of mind. In the absence of eliciting anything pointing out any suspicious circumstances in the cross-examination of witnesses, examined on behalf of the defendants, including the attestor and scribe, it is difficult to hold that the will is not genuine. In fact, the trial Court after appreciation of oral and documentary evidence concluded that execution of the will by Tirupathamma was proved and I find no legal infirmity warranting interference of this Court, even after reappraisal of entire evidence, as the counsel for the plaintiffs-appellants did not point any suspicious circumstances surrounding the execution of Ex.B-26 will. In the absence of any such circumstances, I have no hesitation to concur with the findings recorded by the trial Court in accepting the findings. Hence, I hold that the will executed by Tirupathamma is valid and genuine, executed in sound disposing state of mind bequeathing her undivided share in favour of Rangari Saheb, father of the defendants; consequently, the defendants father became absolute owner of entire schedule property in view of Exs.B-1 and B-26 and after his death, the defendants became the absolute owners and hence the plaintiffs ceased to be the joint owners of the property. Therefore, I hold that the plaintiffs are not entitled to claim any share including share in the

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undivided share of Tirupathamma. Accordingly, the point is held in favour of the defendants-respondents and against the plaintiffsappellants.

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25. In view of my foregoing discussion, I find no ground warranting interference with the findings recorded by the trial Court and the Appeal Suit deserves to be dismissed.

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In the result, the Appeal Suit is dismissed confirming the decree and judgment dated 16-03-2015, passed in Original Suit No.130 of 1989 by the learned Additional Subordinate Judge, Tirupati.

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In consequence, miscellaneous petitions, if any, pending in this Appeal, shall stand dismissed. No order as to costs.

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_____________________________ M. SATYANARAYANA MURTHY, J Date: 05-08-2015. Dsh

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HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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262

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21122015

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APPEAL SUIT No. 661 OF 2014

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Date. 05-08-2015

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DSH

P.Khader Bee and Another v. P.Babamma and Another

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P.Khader Bee and Another v. P.Babamma and Another

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