Dismissed

Karnam Mohana Rao v. Manne Venkata Ratnam , Rattaiah

Telangana HC21 Sept 2015AS/132/1997

Case brief

AI extract

What is this about?

The High Court Appellate Court dismissed the defendants' appeal challenging a trial court decree for recovery of possession. The Court held that an alleged oral 'pasupu kumkuma' gift of immovable property is invalid without registration, the non-joinder of the son was not fatal as no plea was raised at the earliest opportunity, and the trial court correctly found the plaintiff as the lawful owner.

What did the court decide?

Appeal dismissed; trial court judgment and decree of 19.12.1996 in O.S. No. 115 of 1988 confirming plaintiff's title and possession confirmed without costs.

Karnam Mohana Rao Vs Manne Venkata Ratnam , Rattaiah — Property and Title | Telangana HC (2015)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY APPEAL SUIT No.132 of 1997

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JUDGMENT:

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The defendants in O.S.No.115 of 1988 on the file of the Subordinate Judge Court, Bapatla preferred this appeal, challenging the judgment and decree, dated 19.12.1996, whereby the suit filed by the plaintiff for recovery of possession after evicting the defendants, who are unlawful in possession, and for mesne profits for the years 1985-86, 1986-87 and 1987-88 was decreed.

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2. For convenience of reference, the ranks given to the parties in O.S.No.115 of 1988 on the file of the Subordinate Judge Court, Bapatla will be adopted throughout the judgment.

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3. The plaintiff filed the suit for the above said reliefs alleging that he is the owner of the schedule property and he was in possession and enjoyment of the same in his own right till the possession was taken by the defendants when he was in service in Andhra Pradesh State Road Transport Corporation at various places.

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4. The plaintiff’s daughter Suhasini was married to the first defendant about six years ago and the second defendant is their daughter born during their wedlock. The plaintiff, who is obliged to maintain the large family and dependants with his meager income and obligations, has performed the marriage of his daughter with the first defendant in a modest way to the satisfaction of one and all. The plaintiff’s daughter Suhasini and the first defendant were living quite amicably in the beginning. Later, the first defendant and his brother-in-law, Nannapaneni Subhash Chandrabose of Appikatla Village where the suit property is situated developed evil intention to grab the suit schedule property by trotting out some

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false untenable story.

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5. As a step in aid of their evil intention, the first defendant along with elders gradually began to torture Suhasini regularly and thus, terrorized and harassed her in every possible manner and made her life miserable, unbearable and she was sent to her parents’ house. The first defendant, by his conduct, declared that late Suhasini - his wife had no place with him unless she brings some property and gold.

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6. The plaintiff tried in his own humble manner to quench the avariciousness of the first defendant but in vain. Ultimately, the plaintiff’s daughter Suhasini died in a most pathetic and tragic manner and her death is unnatural under suspicious circumstances. The first defendant and his men were solely responsible for the same. The matter was still pending enquiry by the police at various levels.

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7. The plaintiff further contended that he never made any announcement of the schedule property as pasupu kumkuma to his daughter Suhasini at the time of her marriage with the first defendant or at any time. The property was never delivered to her by the plaintiff and late Suhasini or the first defendant was never in possession of the same at any time. The plaintiff and his members of the family alone were in exclusive possession and enjoyment of the same. Further, Suhasini herself never claimed as such at any time.

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8. The contention of the first defendant that the suit schedule property was given to his wife towards pasupu kumkuma is absolutely false and is improbable. Taking advantage of the fact that the plaintiff is an employee at a far of place, the first defendant, his brother-in-law at Appikatla Village and others tried to trespass into the suit schedule property and created law and order problem

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with the aid of other persons commanding influence. Ultimately, the first defendant managed to squat on the schedule property with the aid of his muscle men. The plaintiff has waited for all these three years that the first defendant would behave well but in vain.

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9. The plaintiff further contended that various letters exchanged between the first defendant, Suhasini and others would clearly establish the falsity of the alleged theory of declaring the schedule property as pasupu kumkuma gift at the time of marriage. Therefore, the plaintiff alone is the owner of the property and entitled to recover the possession since the defendants are in unlawful possession and enjoyment of the same without any manner of right. Hence, the suit for the aforesaid reliefs.

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10. The first defendant admitted about relationship, but raised a specific contention that Suhasini was given an extent of Ac.3.00 of land in D.No.11/1 of Appikatla Village towards pasupu kumkuma at the time of her marriage in the year 1982. The marriage of the first defendant with late Suhasini was settled by Sri Nannapaneni Veeraiah, who is none other than the Viyyanka of the plaintiff. Nannapaneni Krishnamma, resident of Appikatla Village and one Metla Venkatappaiah, resident of Cheruvu Jammulapalem Village were also present at the time of the said settlement. The plaintiff and his family members have stated at the time of the settlement of marriage that they would give the said land of Ac.3.00 to late Suhasini towards pasupu kumkuma and the same was announced at the time of marriage. Immediately after the marriage, possession of the suit schedule property was delivered to late Suhasini and since then, the first defendant has been carrying on necessary agricultural operations on behalf of his wife. But due to ill luck of the first defendant, the said Suhasini passed away in Etheru Village at her parents’ house on 20.07.1985. Since then,

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the defendants have been in lawful possession and enjoyment of the land as successors of late Suhasini. As such the defendants are absolute owners of the property.

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11. During the year 1985, the first defendant cultivated the suit schedule property on his behalf and on behalf of his daughter. In 1985, he raised Masoori variety of paddy crop in an extent of Ac.0.80 cents and in an extent of Ac.0.70 cents, P.D.1100 variety of paddy crop. Masoori and P.D.1100 variety crops were thrashed and taken away by the first defendant on 07.12.1985. In the remaining land, 2081 variety of paddy crop was raised. As the plaintiff and the family members were proclaiming in the village that they would cause obstruction to the defendants, the first defendant has obtained the aid of Executive Magistrate and thereupon, Suresh, son of plaintiff having failed in his forcible attempts to take away the crop unlawfully, got filed O.S.No.218 of 1985 on the file of the District Munsif Court, Bapatla. He also filed I.A.No.961 of 1985 in O.S.No.218 of 1985 and a Receiver was appointed to take possession of the remaining crop in the suit schedule property. The respondents in I.A.No.961 of 1985 preferred C.M.A.No.1 of 1986 on the file the Subordinate Judge Court, Bapatla and the same was allowed. Since then, the defendants have been in lawful possession and enjoyment of the suit schedule property. Later, O.S.No.218 of 1985 was dismissed and the plaintiff resorted to the present litigation.

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12. It is further contended that the first defendant and his wife came to know that the plaintiff’s son namely Suresh mortgaged the suit schedule property with Bapatla Co-operative Agricultural Development Bank Limited without the consent and knowledge of the first defendant’s wife. The first defendant’s wife wept for herself for the reason that her property was mortgaged by her brother and after coming to know of the

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same, she wrote a letter to her mother expressing her grief. The said letter was handed over to the first defendant by his mother-inlaw. It is further contended that the first defendant thought of leasing out the suit schedule property for the year 1985 and entrusted the matter to the plaintiff, his son and other family members. As there was no communication from them, he wrote a letter to his wife at Etheru Village as she was staying with them. The first defendant and his deceased wife used to store the produce of the suit schedule property at Etheru Village as it is nearer to the suit schedule property. The plaintiff and the first defendant’s brother-in-law sold away the said paddy and misappropriated the same for themselves for the year 1984. The first defendant got issued a registered notice to Manne Rama Tulasamma questioning the mortgage by the plaintiff’s son. The first defendant categorically denied the alleged suspicious death of Suhasini due to the alleged harassment, while contending that the first defendant himself paying land revenue to the Government and that the defendants alone, being the lawful owners, are entitled to continue in possession and enjoyment of the same and finally, prayed to dismiss the suit.

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13. On the strength of the above pleadings, the trial Court framed the following issues:

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1. Whether the court fee paid is not correct?

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2. Whether the plaintiff is entitled for possession evicting the defendants from the suit land?

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3. Whether the plaintiff is entitled for the mesne profits as prayed for?

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4. To what relief? (extracted)

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14. During trial, on behalf of the plaintiff, PWs.1 to 4 were examined and Exs.A.1 to A.8 were marked. On behalf of the defendants, DWs.1 to 14 were examined and Exs.B.1 to B.57

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besides Exs.X.1 to X.10 were marked.

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15. Upon hearing argument of learned counsel for both the parties, the trial Court disbelieved the plea of pasupu kumkuma gift in favour of Suhasini by the plaintiff and decreed the suit directing the defendants to deliver vacant possession of the property with other consequential reliefs.

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16. Aggrieved by the judgment and decree of the trial Court, the defendants in the suit preferred this appeal raising several contentions.

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(a) The major contentions of learned counsel for the defendants/appellants in the appeal are that the property was gifted to Suhasini, wife of the first defendant and mother of the second defendant, as pasupu kumkuma at the time of marriage, but the same was not considered by the trial Court. Even otherwise, the voluminous oral and documentary evidence produced by the defendants clinches the issue that the plaintiff declared pasupu kumkuma gift at the time of marriage, but the trial Court did not consider both oral and documentary evidence in proper perspective.

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(b) It is further contended that after death of Suhasini, the defendants 1 and 2 succeeded her estate and continuing in possession and enjoyment of the property and as such, the plaintiff is not entitled to recover possession of the suit schedule property.

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(c) He also contended that the son of the plaintiff was not impleaded as party to the suit, who is entitled to claim share in the property. In the absence of the son of the plaintiff, the suit cannot be decreed. On this sole ground, the suit is liable to be dismissed.

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(d) The trial Court also ignored Ex.B.11 - copy of plaint in O.S.No.218 of 1985 on the file of the District Munsif Court, Bapatla

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filed by Suresh, son of plaintiff for permanent injunction claiming that he is exclusive possession and enjoyment of the property. The trial Court committed a grave error in decreeing the suit accepting the plea that the defendants took forcible possession of the property without any manner of right and finally, prayed to dismiss the suit setting aside the judgment and decree of the trial Court after reappraisal of entire oral and documentary evidence afresh and to come to an independent conclusion notwithstanding the findings recorded by the trial Court.

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17. During hearing, Sri K.G.Krishna Murthy, learned senior counsel for the defendants/ appellants would contend that the custom in the caste of ‘Kamma’ is prevailing to gift immovable property at the time of marriage as pasupu kumkuma. By following the said custom, the property was gifted towards pasupu kumkuma at the time of marriage by way of declaration, but the trial Court did not look into the custom prevailing in the community and oral gift in the year 1982 at the time of marriage. If the custom prevailing in the community to present immovable property by way of oral gift is accepted, the defendants became the owners after death of Suhasini in the year 1985, but the trial Court totally overlooked this contention and committed an error.

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18. It is further contended that the suit is bad for non-joinder of necessary party since the property is ancestral property where the plaintiff’s son Suresh claimed interest in the property. In the absence of Suresh, son of the plaintiff, the plaintiff alone is not entitled to recover possession of the property and therefore, the suit is liable to be dismissed on the sole ground of non-joinder of proper and necessary party to the suit.

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19. The burden of proof is always on the plaintiff, who sought the relief of recovery of possession, to prove his independent title, and

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cannot be permitted to take advantage of weaknesses in the case of the defendants, but the trial Court totally shifted onus of proof on the defendants. The trial Court erroneously decreed the suit in favour of the plaintiff and against the defendants. Therefore, the judgment and decree of the trial Court granting relief of recovery of possession and other consequential reliefs are erroneous and liable to be set aside.

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20. In support of his contention that non-joinder of proper and necessary parties is fatal to the suit, learned counsel for the defendants placed reliance on the decisions in Jahangirji (died) [1] by LRs. and others v. K.Kuma r and Rajabibi and others, v. [2] S.Ameerali and anothe r . He also drawn the attention of this Court to the judgments in T.K.Mohammed Abubucker (dead) through LRs. and others v. P.S.M. Ahamed Abdul Khader and [3] others , State of Madhya Pradesh v. Nomi Singh and [4] anothe r and Union of India rep. by its Secretary, Ministry of Defence, New Delhi and others v. Vasavi Co-operative [5] Housing Society Limited and others in support of his contention that the plaintiff has to succeed on the strength of his own case and cannot be allowed to take advantage of weaknesses in the defence set up by the defendants. He further has drawn the attention of this Court to a judgment in Govt. of A.P. [6] and others v. M.Krishnaveni and others in support of his contention that pasupu kumkuma gift is valid.

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21. Finally, the learned senior counsel requested this Court to reappraise entire evidence with reference to legal position and dismiss the suit, setting aside the judgment and decree passed by the trial Court.

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22. Per contra, learned counsel for the plaintiff has drawn the attention of this Court to certain admissions with regard to correspondence between plaintiff and defendants, more particularly, in the legal notice, dated 02.12.1983 and an admission in para No.4 of the written statement so also evidentiary admission of DW.1 and supported the findings of the trial Court in all respects. Finally, prayed to dismiss the appeal confirming the judgment and decree passed by the trial Court.

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23. Considering rival contentions, perusing oral and documentary evidence and the judgment and decree passed by the trial Court, the points that arise for consideration in this appeal are as follows:

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1. Whether the plaintiff is the owner of the suit schedule property, if so, to recover possession of the property?

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2. Whether pasupu kumkuma gift allegedly declared at the time of marriage of the first defendant with Suhasini is true, valid and conferred any title on Suhasini, daughter of the plaintiff and after her death on defendant Nos.1 and 2, who are husband and daughter of Suhasini, if so, the possession of the defendants is lawful?

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3. Whether the plaintiff is entitled to recover possession of the property without impleading his son Suresh as party to the suit?

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POINT No.1:

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24. Undisputedly, the suit schedule property belongs to the plaintiff since it is an ancestral property of the plaintiff. But the defendants’ contention is that at the time of marriage of Suhasini with the first defendant, pasupu kumkuma gift was announced by the plaintiff to his daughter Suhasini. It is the specific plea of the defendants that at the time of settlement of the marriage in the

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presence of elders, the plaintiff agreed to gift Ac.3.00 of land i.e., suit schedule property towards pasupu kumkuma gift to his daughter in view of the prevailing custom in the caste of ‘kamma’ in the areas of Guntur District. Accordingly, the plaintiff declared pasupu kumkuma gift in the presence of elders at the time of marriage. Since then, the first defendant used to cultivate the land on behalf of his wife Suhasini during her life time and after her death at Etheru Village at the residence of the plaintiff, defendant Nos.1 and 2 succeeded the same and became absolute owners, cultivating the property in their own right and paying land revenue to the Government. Thus, they claimed absolute ownership over the property in pursuance of oral pasupu kumkuma gift announced at the time of marriage to Suhasini and after her death, they succeeded the property.

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25. As the first defendant admitted about right of the plaintiff initially and set up the pasupu kumkuma gift at the time of marriage of Suhasini, initial onus of proof is on the first defendant to prove that the alleged pasupu kumkuma gift of suit schedule property in favour of Suhasini is true, valid and genuine.

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26. A gift is a transfer of immovable property without consideration and it is defined under Section 122 of the Transfer of Property Act, 1882 and the definition of gift is as under:

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““Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.”

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In view of said definition, gift is a transfer of movable or immovable property. In the present case, the property covered by the alleged gift is immovable property. But the plea of the first defendant is that pasupu kumkuma gift is only an oral gift declared

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at the time of marriage of the first defendant with Suhasini as per the prevailing custom. Here, the donor is the plaintiff, who is none other than the father of Suhasini, wife of the first defendant and mother of the second defendant.

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27. According to Section 123 of the Transfer of Property Act, when the immovable property is gifted, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. According to the defendants, the alleged pasupu kumkuma gift was not reduced into writing and thereby, question of registration of the same does not arise.

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28. According to Section 17(1)(a) of the Registration Act, 1908, an instrument of gift of immovable property is compulsorily registerable as per the provisions of the Indian Registration Act. As per Section 49 of the Registration Act, no document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall, affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence. Thus, a document which is compulsorily registerable under Section 17(1)(a) of the Registration Act, when not registered, the same cannot be admitted in evidence and such document would not confer any right or title over the property, extinguishing the right of the other. Apart from that, a document if reduced into writing, it is liable to be stamped according to S.No.29 of Schedule 1-A of the Indian Stamp Act (A.P. Amendment Act, 1922) and the stamp duty is payable as conveyance for the consideration mentioned in the gift deed, equivalent to the market value of the property which is the subject matter. Here, according to the defendants, the gift was not reduced into writing, thereby question of payment of stamp duty and registration of document as per the provisions of the Indian Stamp Act and the Registration Act would

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not arise.

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29. Though the statute do not exempt such gift styled as ‘Pasupu kumkuma’ from the application of the provisions of the Indian Stamp Act, the Registration Act and the Transfer of Property Act, obviously, the law laid down by this Court is contrary to the provisions of those statutes. In a decision in Bhubaneswar Naik Santoshrai and others v. The Special Tahsildar Land Reforms

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Tekkali and others^[7] , the Division Bench of this Court held as follows:

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“Expression of intention to give away the property for provisions of marriage of daughter or sister is not a gift within Section 122 of the Act, therefore the nonregistration of such deed would not hit its validity.”

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30. The same principle is reiterated in P.Buchi Reddy and

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others v. Ananthula Sudhaka r^[8] .

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31. Thus, from the principle laid down by the Division Bench of this Court and reiterated by the Single Judge of this Court, a ‘Pasupu kumkuma’ gift requires no registration as per the provisions of the Registration Act.

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32. Fortunately, the Full Bench of this Court, in a decision in Gandevalla Jayaram Reddy v. Mokkala Padmavathamma and

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others^[9] , held that transfer of immovable property by way of ‘Pasupu kumkuma’ gift to a daughter at the time of marriage given under a document requires stamp duty and registration in terms of the provisions of Section 17 of the Registration Act, 1908 and such document is inadmissible in evidence and overruled the judgment of Division Bench of this Court in Bhubaneswar Naik Santoshrai’s case (7 supra) and the judgment of Single Judge of this Court in P.Buchi Reddy’s case (8 supra). Para Nos.7 and 8

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in Gandevalla Jayaram Reddy’s case (9 supra) reads as follows:

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“The learned Judges committed a manifest error in holding that the daughters have a share in the property. The daughters save and except under a customary or statutory right cannot have any share in a joint family property. Even assuming that she has such right, she can only claim partition, but it is beyond any cavil of doubt that if a transaction is effected in writing, the same would require registration. The Division Bench, in our opinion, further committed a manifest error in holding that the ‘pasupu kumkuma’ being both involuntary as well as for consideration, the same would not be a gift within the meaning of Section 122 of the Transfer of Property Act. Evidently such a transaction would create right in immovable property in one and the right of the owner thereof shall be extinguished and thus the same would attract the provisions of Section 17(1)(b) of the Registration Act. No authority has been cited by the learned Division Bench in support of their opinion that pasupu kumkuma could very well be done orally.

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Furthermore, the learned Judges proceeded on a wrong premise in holding that the pasupu kumkuma is not a gift. ‘Pasupu Kumkuma’ as defined in P.Ramanatha Iyer’s Law Lexicon means a gift, a settlement or assignment of land to a daughter. Inevitably therefore, such a gift of immovable property, the consideration whereof would be love and affection could come within the meaning of Section 123 thereof.”

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33. Thus, the contention that gift of immovable property towards ‘Pasupu kumkuma’ is not required to be registered is wholly untenable and against the law laid down by the Full Bench decision of this Court and statutory provisions under Section 123 of the Transfer of Property Act, 1882, Section 17 read with Section 49 of the Registration Act and S.No.29 of Schedule 1-A of the Indian Stamp Act (A.P. Amendment Act, 1922). There is a thin distinction between the facts in the above judgment and the present case. In the facts of the judgment of the Full Bench of this Court in Gandevalla Jayaram Reddy’s case (9 supra), it is held

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that when a document is reduced into writing but not registered and stamped as per the provisions of the Registration Act and Indian Stamp Act, it is inadmissible in evidence. Therefore, in view of the Full Bench judgment of this Court, the document in question though styled as pasupu kumkuma gift and reduced into writing, it is inadmissible in evidence. In the facts of present case, gift was not reduced into writing and it was oral, but it is invalid in view of Section 123 of the Transfer of Property Act and Section 17(2) of the Registration Act.

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34. In another judgment of this Court rendered in Ranga Reddy

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v. Sadhu Padamma and others^[10] , the Single Judge of this Court had an occasion to discuss about the admissibility of an unregistered gift deed effecting transfer of immovable property.

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35. The Single Judge of this Court referred the guidelines laid down by this Court in Dadi Reddy Sivanarayana Reddy v. Kasi

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Reddi Chinnamma^[11] and finally concluded that the unregistered gift deed is inadmissible in evidence.

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36. In another judgment in Nangineni Radhakrishna Murthy v. Kanneganti Nagendramma (died) by L.Rs .^[12] , the identical set of facts came up for consideration before this Court and this Court considered the custom prevailing in the caste of ‘kamma’ in the coastal areas and held that the oral pasupu kumkuma gift by father, which was announced at the time of marriage, would not confer any title to the property. The Judgment of the Single Judge of this Court in Nangineni Radhakrishna Murthy’s case (12 supra) is a straight answer to the present dispute. Therefore, the principle applied in the above judgment is that though there is a custom prevailing in ‘kamma’ community in the costal areas to give immovable property as pasupu kumkuma gift, orally, such custom

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is contrary to the provisions of the Transfer of Property Act, more particularly, Section 123 of the Transfer of Property Act. Therefore by applying the principle laid down in the above judgment, I find no hesitation to conclude that the alleged oral pasupu kumkuma gift in favour of Suhasini by the plaintiff, which was allegedly declared at the time of her marriage, is not valid and such gift would not create any right or interest in immovable property in favour of Suhasini and after her death, in favour of defendant Nos.1 and 2, who are husband and daughter of the deceased Suhasini.

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37. The contention of the plaintiff from the beginning is that the alleged pasupu kumkuma gift is not true and totally denied the gift both in the pleadings and evidence. Strangely, there is a registered correspondence between the plaintiff and the first defendant and the first defendant got issued a legal notice, dated 02.12.1983 through his advocate A.Krishna Murthy of Bapatla, Guntur District addressed to Manne Rama Tulasamma, Etheru Village. The contents of the notice disclosed that the said Rama Tulasamma and the plaintiff, as per the caste custom prevailing in their community promised to gift Ac.3.00 of land, but till date of issuing the notice on 02.12.1983, no land and agricultural produce were given to Suhasini and also complained that the land was mortgaged to Bapatla Co-operative Agricultural Development Bank Limited without consent of Suhasini and finally, called upon the said Rama Tulasamma to give gold, agricultural land and the agricultural produce from the date of marriage till the date of receipt of notice. From the contents of Ex.A.4, no property was given to Suhasini as pasupu kumkuma gift at the time of marriage. Ex.X.1 is another notice admittedly sent by Rama Tulasamma. Even according to Ex.X.1, she agreed to give Ac.3.00 of land towards pasupu kumkuma to Suhasini. In the last para of page No.2 of the cross examination of PW.3, she admitted that Ac.2.00 of land was

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given to her towards pasupu kumkuma by her parents at Kakumanu Village. This admission, at best, enabling the Court to accept the prevailing custom in their caste to give immovable property as pasupu kumkuma at the time of marriage. In the last para of the cross examination, PW.3 admitted that after death of Suhasini, she never went to the suit schedule property and denied that the land was given to Suhasini towards pasupu kumkuma. Therefore, the evidence of PW.3 at best is useful to prove the prevailing custom in the caste of ‘kamma’ to gift land as pasupu kumkuma at the time of marriage. The plaintiff, in his examination in chief, denied the said custom in their community at the time of marriage. In the cross examination, he admitted about mortgage of the suit schedule property to Bapatla Co-operative Agricultural Development Bank Limited to avail loan for purchase of a Tractor in the year 1983 and later, discharged part of the loan, and that his daughter never paid any land revenue from 1982 for the suit schedule property. At page No.5 of the cross examination, PW.1 pleaded ignorance about custom prevailing in ‘kamma’ community to gift land towards pasupu kumkuma, but admitted that one Nannapaneni Veeraiah has got dispute with him in respect of land transaction. In the year 1974, he purchased Ac.4.00 of land from Nannapaneni Veeraiah under a contract of sale for Rs.16,000/and the contract of sale was also kept with him and later, he cheated him and sold away the land, as such the evidence of Veeraiah can’t be accpeted due to enemity.

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38. When I adverted to the oral evidence on record, PW.1, at page No.4 of his evidence, admitted that the plaintiff and his three sons have mortgaged the suit schedule property to Bapatla Cooperative Agricultural Development Bank Limited and availed loan for purchase of Tractor in the year 1983 and discharged part of the same. This piece of evidence shows that he is the owner of the

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property. Otherwise, the question of mortgaging the property does not arise. Apart from that, DW.1, when examined before the trial Court, at page No.5, admitted that the property belongs to the plaintiff as per the village records of Appikatla Village and further, admitted about mortgage of the property by the plaintiff and his sons with Bapatla Co-operative Agricultural Development Bank Limited in the year 1983 and the mortgage is still subsisting. Similarly, the three witnesses for defendants supported the case of the plaintiff regarding ownership, DW.3 admitted in his evidence at page No.2 that the suit schedule property situated at Appikatla Village belongs to the plaintiff and similarly, DW.9 also testified on the same lines. Therefore, the oral evidence available on record coupled with documentary evidence including the undisputed fact that originally the suit schedule property belongs to the plaintiff and his family members clinchingly establish that the plaintiff is continuing as owner of the property, as the first defendant failed to establish his title to the property by way of pasupu kumkuma gift in favour of daughter of the plaintiff - Suhasini at the time of her marriage.

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39. As discussed above, in view of the law declared by this Court, a pasupu kumkuma gift, as per the custom prevailing in the community of ‘kamma’, was considered by a Single Judge of this Court and held that the oral gift is not valid and unenforceable under law. Therefore, the same principle is directly applicable to the present facts of the case and cumulative effect of both oral and documentary evidence coupled with the law declared by this Court is that the alleged oral pasupu kumkuma gift is not valid. Accordingly, point Nos.1 and 2 are answered in favour of the plaintiff and against the defendants.

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POINT No.3:

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40. One of the major contentions of the first defendant is that the suit is liable to be dismissed for non-joinder of proper and necessary party and a specific ground is raised in the grounds of appeal to that effect. No doubt, the plaintiff, as PW.1 in his evidence, admitted that his son is also entitled to claim share in the property since the schedule property is an ancestral property. PW.1 admitted that originally, the suit property belongs to his paternal grandfather and the same was allotted to his father and in the family partition between himself and his father, the suit property was allotted to his father only. Thereafter, he filed a suit for a share as the suit property belongs to his paternal grandfather and accordingly, got the said land. At the end of the same para, he admitted that Suresh is having right to claim share in the suit property. At best, this admission shows that the property is a joint family property and Suresh, son of the plaintiff, is entitled to claim a share in the property.

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41. The suit for recovery of possession was filed by the sole plaintiff, father of Suresh and Suhasini and father-in-law of the first defendant. He is the kartha of the joint family, but the claim of the plaintiff is resisted on the ground that the suit for recovery of possession is not maintainable on the ground of non-joinder of necessary party. The plea of non-joinder has to be raised before framing of issues in view of Order I Rule 13 of C.P.C. If no such plea was raised at the earliest opportunity i.e., mostly before framing of issues, such plea cannot be permitted to be raised at the stage of hearing. In fact, the written statement is totally silent about maintainability of the suit on the ground of non-joinder of necessary party and the trial Court did not frame any issue and record any finding. Therefore, the plea of non-joinder of necessary party is not available to the defendants at this stage. However, learned counsel for the defendants placed reliance on a judgment

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i n Jahangirji’s case (1 supra) at para No.33 placing reliance on the Privy Council judgment and Supreme Court judgment, it is held that non-joinder of necessary parties cannot be cured by impleading them in the appeal and is fatal to the suit for partition. Similarly, in Rajabibi’s case (2 supra), the Karnataka High Court, placing reliance on earlier judgments, held that a suit is not maintainable for non-joinder of necessary parties. There is no dispute about the legal position laid down by this Court and Karnataka High Court, provided, such plea is raised in the written statement at the earliest opportunity i.e., before framing of issues. Here, there is neither plea nor argument advanced before the trial Court that the suit is not maintainable for non-joinder of necessary party. In the present facts of the case, there was no plea regarding non-joinder of necessary party. Therefore, it is not open to the defendants to raise such plea for the first time in the first appeal.

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42. Undisputedly, the plaintiff, being the father acting as kartha of the joint family consisting of himself and his son, is a co-owner or joint owner along with his son. Therefore, a suit by a co-owner or a co-sharer is maintainable in view of the principle laid down in T.Lakshmipathi and others v. P.Nithyananda Reddy and others^[13] , wherein the Hon’ble Apex Court consistently held that each co-owner is entitled to enjoy each of the joint family property and therefore, a co-owner can maintain a suit for eviction. Applying the principle laid down in the above judgment, non-joinder of proper and necessary party to the suit i.e., son of the plaintiff by name Suresh is not a ground to reverse the finding recorded by the trial Court.

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43. In view of my foregoing discussion, I find that the ground of non-joinder of necessary party is no more available to the defendants since there is no factual foundation in the pleadings

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and no plea was raised at the earliest opportunity i.e., before framing of issues as required under Order I Rule 13 of C.P.C. Accordingly, the point is held in favour of the plaintiff and against the defendants.

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44. The next contention raised before this Court is that the trial Court totally placed burden of proof on the defendants to prove that the property was gifted to Suhasini towards pasupu kumkuma at the time of her marriage as per the caste custom prevailing in their community and basing on the weaknesses in the defence set up by the defendants, the trial Court decreed the suit. The trial Court discussed both oral and documentary evidence and adverted to each and every sentence in the deposition of witnesses examined before the trial Court. Learned counsel for the defendants, while contending that the burden of proof is on the plaintiff in a suit for ejectment has drawn the attention of this Court to a judgment in Union of India’s case (5 supra) wherein the Division Bench of this Court held that in a suit for declaration of title, the burden of proof always lies on the plaintiff to make out and establish a clear case for granting such declaration. The burden, undoubtedly, lies upon the plaintiff. The weaknesses, if any, in the case set up by the defendants itself would not be a ground to grant any relief to the plaintiff. The legal position referred to above is not in dispute and the Courts consistently, time and again held that the plaintiff, who approached the Court, has to discharge his initial onus of proof by producing cogent and satisfactory evidence and cannot be allowed to take advantage of the weaknesses in the defence set up by the defendants. I n State of Madhya Pradesh’s case (4 supra), the Hon’ble Apex Court in para No.10 held as follows:

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“We have considered the submissions of learned counsel for the parties. It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case. On perusal

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of the impugned order passed by the High Court, this Court finds that the High Court has wrongly shifted burden of proof on the defendants. In the middle of paragraph 12, while giving its reasons to disagree with the decree passed by the courts below, the High Court has observed as under:-

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“It was respondent-defendant who has challenged the possession of plaintiff and his father on the ground of khasra entries, therefore, burden of proving the fact that allegations made by the defendant are correct, is on the defendant, in which defendant has failed. Further it has been admitted before the Court that entry of plaintiffs in the khasra record is as encroacher, but no such khasra entries have been produced by them….”

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45. I n T.K.Mohammed Abubucker’s case (3 supra), the Supreme Court in para Nos.29 and 31 held that in a suit for declaration of title and possession, the burden of proof is always on the person, who approaches the Court, and the plaintiff has to workout his own case for title and entitlement to possession and cannot rely on weaknesses in the title or possession of the defendants. This legal position is not much in controversy, however, in the present case, the trial Court discussed the evidence on record. There is a distinction between burden of proof and onus of proof. Burden of proof is static and it will remain as it is, but onus of proof will shift from one person to other person from time to time. I n State of Andhra Pradesh v. Hyderabad Potteries Private Limited and anothe r^[14] , A.Raghavamma and another v. A.Chenchamma and anothe r^[15] , and Anil Rishi v. Gurbaksh Singh^[16] , the Hon’ble Apex Court has drawn distinction between burden of proof and onus of proof and held that onus of proof shifts, but not burden of proof. Therefore, the burden of proof lies on the persons who asserted any fact and it never

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shifts, but onus of proof shifts. As such, shifting of onus is a continuing process in the evaluation of evidence. In the present case, when the plaintiff asserted that he is the owner of the property and the same is admitted by DWs.1, 2, 3 and 9 in their evidence, the burden of proof loses its importance when both parties adduced evidence and it is an academic issue. Therefore, when the defendants admitted the original ownership, the burden of proof on the defendants who set up the oral pasupu kumkuma gift at the time of marriage. Placing burden of proof on the defendants the trial Court decreed the suit is not correct. Apart from that, the evidentiary admissions at various places in the examination of DWs.1 to 9 coupled with documentary evidence is suffice to conclude that the plaintiff is able to establish his right and title to the property and he is the owner of the property. Therefore, placing initial burden of proof on the defendants and deciding the suit by the trial Court is not a ground to reverse the finding of the trial Court. Even according to Section 99 of C.P.C., no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. But the proviso to Section 99 of C.P.C. shows that Section 99 of C.P.C. has no application to nonjoinder of necessary parties. Therefore, mere irregularity in placing the initial burden of proof on the defendants is not a ground to reverse the decree in view of Section 99 of C.P.C. since it would not affect the merits of the case or jurisdiction of the trial Court. In view of Section 99 of C.P.C., the contention that the trial Court placed burden of proof on the defendants is not a ground to upset the finding recorded by the trial Court. Hence, I find no merit in this contention.

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46. The plaintiff filed the suit for recovery of possession under Section 5 of the Specific Relief Act, 1963 based on title. Undisputedly, the plaintiff is the owner of the property though the first defendant asserted that the same was acquired by oral pasupu kumkuma gift at the time of marriage of Suhasini and succeeded the same after her death by defendant Nos.1 and 2. They failed to establish the valid pasupu kumkuma gift strictly adhering to Section 123 of the Transfer of Property Act, therefore, the plaintiff is deemed to be continuing as owner of the property since no valid transfer of schedule property took place between the plaintiff and Suhasini. Though the defendants are continuing in possession and enjoyment of the property, their possession is not litigious or riped into adverse to the plaintiff. So, the plaintiff is entitled to claim recovery of possession under Section 5 of the Specific Relief Act. In fact, the defendants did not set up any defence of perfecting their title to the schedule property by adverse possession and no such issue was framed and answered by the trial Court, moreover mere long possession would not ripe into adverse possession. Therefore, the plaintiff, being the owner of the property, is entitled to recover possession of the property.

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47. At the end of the argument, learned counsel for the defendants/appellants made a vain attempt to convince this Court to remand the matter to the trial Court by exercising power under Order XLI Rule 23-A of C.P.C. and placed reliance on a judgment of this Court in Koppu Sathiah and others v. Koppu Chandraiah^[17] , wherein this Court discussed about Order XLI Rule 23 of C.P.C. that when there is no supporting evidence on record, the Court can exercise the power and remand the matter to the trial Court. Order XLI Rule 23 of C.P.C. deals with remand of suit when the trial Court decided the matter by framing a

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preliminary issue, but it is not the question here. At best, Order XLI Rule 23-A of C.P.C. can be invoked to remand if the Court is satisfied that the matter requires further consideration. But, in the present case, both the plaintiff and the defendants adduced voluminous evidence examining 4 witnesses on behalf of the plaintiff and 14 witnesses on behalf of the defendants by producing Exs.A.1 to A.8, Exs.B.1 to B.57 and Exs.X.1 to X.10 by both the parties. Therefore, sufficient evidence is available on record and even otherwise, in view of the bar under Section 99 of C.P.C., suit cannot be remanded to the trial Court for fresh disposal. Hence, I find no ground warranting interference with the finding of the trial Court. Consequently, the appeal is liable to be dismissed holding that the plaintiff is entitled to recover possession of the suit schedule property under Section 5 of the Specific Relief Act, as he is the lawful owner and that the defendants failed to prove the valid transfer of immovable property under Section 123 of the Transfer of Property Act to Suhasini. Accordingly, the point is answered in favour of the plaintiff and against the defendants.

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48. In view of my above finding, I find no merits in the appeal and the appeal is devoid of merits and deserves to be dismissed.

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49. In the result, the Appeal Suit is dismissed confirming the judgment and decree dated 19.12.1996 passed in O.S.No.115 of 1988 by the Subordinate Judge, Bapatla, but without costs.

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50. Consequently, Miscellaneous Petitions, if any, pending in this Appeal Suit shall stand closed.

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M.SATYANARAYANA MURTHY, J

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Date: 21.09.2015 Ivd

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[1] 2012 (2) ALD 406 [2] AIR 1974 KARNATAK 115 (V 61 C 42) [3] (2009) 14 SCC 224 [4] 2015 SCC 251 [5] 2002 (5) ALT 370 (D.B.) [6] (2006) 7 SCC 365 [7] AIR 1980 A.P. 139 [8] 1999 (2) ALT 192 [9] 2001 (5) ALD 402 (FB) [10] 2002 (6) ALD 752 [11] 2001 (1) ALD 349 [12] 2007 (4) ALD 642 [13] (2003) 5 SCC 150 [14] (2010) 5 SCC 382 [15] AIR 1964 SC 136 (1) [16] (2006) 5 SCC 558 [17] 2007 (4) ALD 734

Karnam Mohana Rao v. Manne Venkata Ratnam , Rattaiah

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Karnam Mohana Rao v. Manne Venkata Ratnam , Rattaiah

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