Dismissed

Mr.Joseph Dcruz v. Smt. Maria Marlyn

Telangana HC8 Sept 2022CCCA/20/2016

Case brief

AI extract

What is this about?

In an appeal against a partition decree, the High Court upheld the trial court's decision to allot equal half shares of the property to the appellants and respondents. The court rejected the appellant's claim that the sister had relinquished her rights via an unregistered declaration, holding it inadmissible due to statutory non-compliance and lack of witnesses.

What did the court decide?

The appeal was dismissed confirming the lower court decree; no order as to costs.

Mr.Joseph Dcruz Vs Smt. Maria Marlyn — Succession and Inheritance | Telangana HC (2022)

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[³²¹⁸ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY,THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

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CITY CIVIL COURT APPEAL NO: 20 OF 2016

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Appeal under Section 96 of CPC against the Judgment and Decree dated 19-06-2014 in OS.No.7O of 2011 on the file of the Court of the lll Senior Civil t: Judge, City Civil Court at Secunderabad.

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Between:

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[/r.Joseph D'cruz, S/o. frank D'Souza, aged 37 years, Occ: Private Service, Fl/o. H.No. 6-3-249, Keys Co-op, Housing Society Ltd., New Bhoiguda, Secunderabad.

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...APPELLANT/DEFENDANT No.'l

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AND

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'1 . Smt. Maria [\r1arlyn, W/o. Neol, aged 31 years, Occ: Housewife, Rl/o. H.No 6-2-129124, Jaiprakashnagar Colony, New Bhoiguda, Secunderabad.

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...RESPONDENT/PLAINTIFF

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Md. Salam, Famous Chiken Center, Carrying on business at 6-3-239, Keys Co-Op. Housing Society Limited, New Bhoiguda, Secunderabad-

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Md. Majeed, Carrying business in a portion of 6-3-349, Keys Co-Op. Housing Society Limited, New Bhoiguda, Secunderabad.

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...RESPONDENTS/DEFENDANTS

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C6unsel for the Appellant: SRI MALLESWARA RAO KALLU

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Counsel for the Respondent No.l: SRI Y. KOTESWAR RAO

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The Court delivered the following: JUDGMENT

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THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

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CCCA No.2O of2016

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JUDGMENT:

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The appellant/first defendant has filed this Appeal Suit assailing the^judgment and decree dated 19.06.2014 in OS No.70 of 2Ol i on the file of the learned III Senior Civil Judge, Cit1,^gi,r11 Court at Secunderabad, u,herein and r'r.hereunder the suit liled by the plaintiff was dccreed and a preliminarl' decrecd \vas passed for partition arrd separate possession of the suit schedule property into two equal half shares and for allotment of one such half share to the plaintifl and alother hall share to the first defendant.

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Assailing the said judgment and decree, the iirst defendant has filed this appeal on the follor.ving grounds:

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i) that the judgment and decree of the trial Court is against the material on record; ii) that the trial court has failed to consider Ex.B.1 declaration executed by the plaintiff; iii) that the trial Court has arrived at a wrong conclusion that Ex.B.1 is a fabricated document, as there is no whisper^about

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Page 2 of 13

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AVRJ CCCA No.2O of 2016

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relinquishment of rights in favour of the llrst defendant; and

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iv) that the tria,l Court has failed to consider Ex.B.1-declaration executed by the plaintiff releasing her rights in favour of the first defendant and it is not a document, which requires compulsory registration.

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The appellant is the first defendant. The first respondent is the plaintiff. The respondents 2 & 3 are the delendants 2 & 3, however, as per cause title in the course of appeal it is mentioned that since they vacated the suit schedule premises, they are not necessarlr parties to the appeal suit.

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Be it stated that even before the trial Court a1so, the delendants 2 & 3 remain ed- ex pante. The plaintiff has filed OS No.70 of 2Oll alleging that she is the younger sister of the first defendant and they are the only legal heirs of their mother, who was the owner ol house bearing No.6-3-249 admeasuring 85 square yards with four commercial mulgies consisting of ground and first floor situated at Keyes Cooperative Housing Society Limited, New Boiguda, \

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Page 3 of 13

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AVRJ CCCA No.20 ol20 l6

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Secunderabad. Their maternal grandfather has purchased the said property through a registered sale deed and he died intestate leaving behind his wife as his only legal heir, she got love and aflection towards the plaintiff and the first defendant and executed a will deed in their- favour bequeathing the suit schedule property equa_lly. It was registered on 20.ll.2OO4 before the Sub-Registrar, Kavadiguda, Secunderabad. Since the time of her marriage, the plaintiff is residing rvith her husband at Jayaprakash Nagar, Boiguda, and accordingly the first defendant is enjoying the suit schedule property and getting rents and dodging for division rnspite of repeated requests. Hence, the suit for partition and allotment of half share to the plaintiif and another half share to the first defendant.

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As stated above, the defendants 2 & 3 remained absent before the trial Court. The first defendalt has filed a detailed written statement denying the claim of the plaintiff alleging that the mother of the plaintiff and first defendant died on 21.05.1998 in the State of Goa, as there were property disputes between Smt. Irene Jones, mother

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PaBe 4 of 13

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AVRJ CCCA No.20 of 2016

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of the plaintiff and first defendant and her mother-iate Smt. Eyelyn Jones. Due to which, Smt. Irene Jones had left Hyderabad forcibly and started living at Goa and died there itself. Srnt. Eyelyn Jones was not the owner of the suit scheduie property and she has not acquired it by inheritance from her husband. In fact, her husbald-late Harry Jones, maternal grandfather of the^plaintiff and lirst defendant before expiring executed a will^{deed bequeathing} his entire property to his oniy daughter Smt. Irene Jones (mother of the plaintiff), which document has become a dispute between the mother and father^(wife and husband). Late Harry Jones was absolute owner of the^property purchased by him through registered sale deed dated 03.11.1971 admeasuring 2a2.84 square feet. The first defendant had no knowledge about the will executed^by Eveiyn Jones in favour of the plaintiff and first defendant. The Iirst defendant performed the marriage of plaintiff^by spending huge amount on 22.02.2006. Moved by^the gesture of first defendant, the plaintiff executed^a declaration on 2l .05.2006, which is duly^notarized declaring that the first defendant is the^{absolute ownerof}

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Page 5 of 13

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AVR.J CCCA No.20 of 2016

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the suit schedule propert,y. Thus, there was no demand for partition and the plaintiff was never in constructive possession ol the suit schedule property at any point o[ time. The plaintiff with her free consent bequeathed the suit schedule property to the first defendant. She did not approach the Court with clean hands, accordingly, prayed for dismissal ol the suit with costs.

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The above pleadings gave rise to the follorving issues:

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i) Whether the plaintiff is entitled to partition the suit schedule property into two equal shares and plaintiff is entitled to half share in it? and

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ii) To '"vhat relieP

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During trial, on behalf of the plaintiff, she herself got herself examined as PW. I and Exs.A.1 to A.4 are marked Thereafter, <.rn behalf of the lirst defendant, he himself got examined as DW.1 and Ex.B.1 document is marked. Th." r'

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trial Court after hearing both sides and on cardul appreciation of the oral and documentary evidence available on record decreed the suit of the plaintiff and a preliminary

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Page 6 of 13

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AVRJ CCCA No.20 of 2016

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decree was passed lor partition and separate possession of half share of the plaintiff and another hall share to the defendant in the suit schedule property. Feeling aggrieved by the same, the first defendant has^preferred this appeal.

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Heard the learned counsel for the appellart/ f,trst defendant and the lirst respondent/ plaintiff. The submissions made on either side have received due consideration ol this Court. Perused the m;-rterral available on record.

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In the light of rival contentions and the material avaiiable on record, the following points arise for consideration in this appeal:

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i) whether the plaintiff is able to establish that she is entitled for half share in the suit schedule property; and

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ii) whether the judgment and decree of the trial Court is sustainable?

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Page 7 of 13

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(-1

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]\V R.J CCCA No.20 oI20l6

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-- -7

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Point Nos.(i) and (ii):

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Since both the points are interlinked, to avoid repetition and for the sake of brevity, it is proposed to answer them together as under:

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The relationship between the plaintifl and the first defendant as sister and brother being the children and only legal heirs of their mother is not in dispute. It is also an undisputed fact that originally the suit schedule property belongs to one Harry Zones, who is the maternal grandfather of the plaintifl and first defendant. Though it is alleged by the plaintiff that their materna-l grandmother has executed a will deed dated 20. 11.2004, the original will deed is not produced and proved. Similarly, though the first defendant having claimed that their maternal grandfather has executed will deed in favour of their mother and that the plaintiff has also executed Ex.B.1-declaration dated 21.02.2005 in his favour relinquishing ali her rights in respect of the suit schedule property in his favour is also failed to establish the same with cogent and convincing evidence.

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Page 8 of 13

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AVRJ CCCA No.20 of²⁰¹⁶

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l i

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The plaintiff as^{PW.l has filed evidenceaffidavit in} lieu of chief examination^{reiteratingthe plaintaverments'} Though she was cross-examined^{at length, nothing worth} mentioning is elicited in^{support of the case of the first} defendant. Though it^{is mentionedin the judgment that} Ex.A.3 is certified^{copyof will deed, it is evident from the} evidence of PW.l that only^{Exs.A.1 & A'2 documents are} marked. Ex.A. 1 is^{the original death certificate and Ex'A2 is} market value certificate.^{The other documentsbeing the} xerox copies were not^{marked. In the cross-examination,} PW. t has stated that^{she is not aware of their grandfather} executing any will deed^{in favour of her mother.She does} not know the exact^{area of suit scheduleproperty'She has} stated that her mother^{hasexpired prior toher} grandmother and her marriage^{took place on 22.02.2006 '} She denied the suggestion^{that the first defendanthad} given Rs.5O,O00/- cash and^{5 tulas ofgold, other} ornaments and furniture^{to her at the time of her marriage.} However, she admitted that^{a two wheelerwas given to her} husband at the time ol^{marriage and explained that it was} purchased with the amount^{given by her grandmother'She}

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Page 9 of 13

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AVRJ CCCA No.2O of 20l6

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has explained that after her marriage, the first defendant did not allorv her to stay in the suit schedule property and denied a-11 other suggestions.

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On behalf of the frrst defendant, he himself got examined as DW.1. In his evidence, Ex.B.1 is marked. It is the declaration dated 21.02.2005. Be it stated that the contents of Ex.B.1 were not admitted by the plaintill as PW.1 when a photo cop-v of Ex.B. 1 u,as shown to her. She has admitted her signature, but denied recitals. Ex. B. 1 is in the form of declaration. It is typed on a stamp paper dated 20.02.2006. It was sworn and signed before the notary on 21.02.2005. Again the notary has signed with date as 2L.O2.2006. The recitals of Ex.B.I nould shou, that the plaintiff executed the same in favour of the first defendant, who agreed to perform her marriage with his own funds and also agreed to look after her in the present arld future i.e., before and after marriage out of love and affection. Thus, she gave her consent in favour of the first defendant for enjoyment of the house bearing No.6-3-249, which is her late grandfather's property and he shall have

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''i

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Page 10 of 13

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AVRJ CCCA No.20 of 2016

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ful1 rights to enjoy the said property without any hindrance from anyone whomsoever and he has full rights to sell, mortgage, lease as sole and absolute owner.

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The recitals of Ex.B.1 as mentioned above shows that it is a deed of relinquishment which requires compulsory registration as per Section 17 of the Indian Registration Act, 1908. In Ex.B. 1 the value of the property is not mentioned and that the plaintiff has denied the execution of such document. There is no attester or any witness to Ex.B.l. Even the notary who is said to have attested is not examined. In that view of the matter, Ex.B.l is not a document hdmissible in evidence and the contents of the sarne are not proved. Admittedly, the suit schedule property belongs to the maternal grandfather of plaintiff and first defendant. He died intestate leaving behind. his wife and daughter, who is the mother of plaintiff and she pre-deceased her mother and in fact during her life time itself she started living at Goa. The materna-l grandmother of the plaintiff and first defendant also died. Though the plaintiff has claimed that the maternal grandmother has

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-u

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Page 11 of 13

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AVR.J CCCA No.20 of 20I6

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executed a Will deed in favour of their mother, no such will deed is filed by both the parties.

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Similarly, though the first defendant has claimed that his maternal grandfather has executed a will deed bequeathing the suit schedule property, no such will deed is filed by the first defendant. Thus, both the plaintiff and first defendant have failed to produce and prove the will deeds as pleaded by them. However, undisputeclly, the suit schedule property belongs to the maternai grandfather of the plaintiff and the first defendant who died intestate and the plaintiff and first defendant are the only surviving legaJ heirs.

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The parties are Christians and they are governed by Indian Succession Act, 1925. Since there are no other legal heirs, the plaintiff and first defendant are entitled for equhl half share in the suit schedule property. Ex.B.1 is filed by first defendant to prove that before her marriage the plaintiff has executed a declaration relinquishing her rights in the suit schedule property in favour of first defendarrt. ' But the contents of the said document are not established,

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PaBe 12 of 13

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AVRJ CCCA No.20 oi^2Ol6

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no attester is found and no^{other known person is} examined. The plaintiff has^{denied the contents of the said} document. Even otherwise, it is a^{documentrequires} compulsory registration and^{it is not admissiblein} evidence. Therefore, in such^{circumstances as per Indian} Succession Act, 1925, the^{plaintiff and the first defendant} are entitled for equal half share^{in the suit schedule} property.

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17 . In that view of the^{matter, Ido not find any} irregularity in appreciation^{of the oral and documentary} evidence adduced by both the^{parties.The trial Courthas} anaJyzed. the facts of the^{case with settledpropositionof law} and arrived at a right conciusion^{holding that the plaintiff} and defendant are entitled^{for equal half sharesin the suit} schedule property. Thus, both^{the points are answeredin} favour of the plaintiff and against^{the first defendant.} Consequently, the impugned^{judgment and decree is liable} to be confirmed.

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In the result, the^{Appeal Suit liled by the appellant/} {irst defendant is dismissed^{confirmingthe judgmentand}

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Page 13 of 13

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AVR.I CCCA No.20 of 20 l6

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decree dated 19.06.2014 in OS No.70 of 2Oil on the file of the learned III Senior Civil Judge, City Civit Court at

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Secunderabad in its entirety. However in the circumstances

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of the case, there shall be no order as to costs.

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As a sequel, miscellaneous applications, if any pending in this appeal, shail stand closed.

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SD/.B.S.CHIRANJEEVI JOINT REGISTRAR //TRUE coPY/t (3)

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SECTION OFFICER

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To,

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1 The lll Senior Civil Judge, City Civil Court, Secunderabad. (with records) 2 One CC to Sri Malleswara Rao Kallu, Advocate [OPUC]

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3 One CC to Sri Y. Koteswar Rao, Advocate [OPUC] 4t Two CD Copies

One Spare Copy

s^br

HIGH COURT

DATED: 0810912022

JUDGMENT

CGCA.No.20 of 2016

DISMISSING THE CCCA WITHOUT COSTS

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k)
LD2).--

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[³²¹⁸ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY ,THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTYTWO

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PRESENT

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THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

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CITY CIVIL COURT APPEAL NO: 20 OF 201Q

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Between:

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Mr.Joseph D cruz, S/o. frank D'Souza, aged 37 years, Occ: private Service, Ri/o. H-No. 6-3-249, Keys Co-op, Housing Society Ltd., New Bhoiguda, Secunderabad

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...APPELLANT/DEFENDANT No.1

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AND

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1 Smt. Maria Marlyn, Wo. Neol, aged 31 years, Occ: Housewife, R/o. H.No. 6-2-1 25124, Jaiprakashnagar Colony, New Bhoiguda, Secunderabad.

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...RESPONDENT/PLAINTIFF

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2 Md. Salam, Famous Chiken Center, Carrying on business at 6-3-239, Keys Co-Op. Housing Society Limited, New Bhbiguda, Secunderabad.

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3 Md..Majeed, Carrying business in a portion of 6-3-349, Keys Co-Op. Housing Society Limited, New Bhoiguda, Seiunderabad.

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...RESPONDENTS/OEFENDANTS

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Appeal under Section 96 of CPC against the Judgment and Decree of the Court of the lll Senior Civil Judge, City Civil Court at Secunderabad dated 19-06-2014 in OS.No.70 of 2011.

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This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Suit and upon hearing the arguments of Sri Matleshwar Rao Kallu, Advocate for the Appellant and of Sri Y. Koteswar Rao, Advocate for the Respondent No.1

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This court doth Judgment and decree that the Judgment and decree dated 19.06.2014 in o.S.No-70 of 2011 on the fire of the ilr senior civir Judge, city civil court at secunderabad be and hereby is confirmed and this CCCA is dismissed; and

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That this court doth further order and decree there shall be no order as to costs in this Appeal.

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SD/-B.S.CHIRANJEEVI JOINT REGISTRAR ,TRUE COPY'

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. -. ll-, SECTION OFFICER

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To, 1. The lll Senior Civil JudOe, City Civil Court, Secunderabad. 2. Two CD Copies 3. One Spare Copy gbr

HIGH COURT

DATED: 0810912022

DECREE

CCCA.No.20 of 2016

a1
.s
5,;
q'#
s.

DISMISSING THE CCCA WITHOUT COSTS

Mr.Joseph Dcruz v. Smt. Maria Marlyn

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Mr.Joseph Dcruz v. Smt. Maria Marlyn

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