w w w . L a w y e r S e r v i c e s . i n



S. Ramachari & Others v/s M/s. Trishala Infrastructure Pvt. Ltd. & Others

    Civil Miscellaneous Appeal Nos. 408 &440 of 2020

    Decided On, 07 July 2021

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE M.S. RAMACHANDRA RAO & THE HONOURABLE MR. JUSTICE T. VINOD KUMAR

    For the Appearing Parties: K. Rajanna, Payalla Chandra Shekar, Advocates.



Judgment Text

M.S. Ramachandra Rao, J.

1. These two Appeals arise out of the same suit between the same parties, and so they are being disposed of by this common order.

2. The appellants in both the Appeals are defendant nos.1 to 3 in Original Suit No.432 of 2019 on the file of XV Additional District and Sessions Judge-cum-XV Additional Metropolitan Sessions Judge-cum-II Additional Family Judge, Ranga Reddy District at Kukatpally (for short "the Court below").

3. The said suit had been filed by their three sisters and the son of a deceased sister, viz., Bhagyamma, for partition of Plaint 'A', 'B', & 'C' Schedule properties into seven equal shares, and for allotment of 1/7th share each to plaintiff nos.1 to 4 / respondent nos.2 to 5 in Civil Miscellaneous Appeal No.408 of 2020 / respondent nos.1 to 4 in Civil Miscellaneous Appeal No.440 of 2020 (hereinafter, referred to as 'plaintiffs'); and 1/7th share each to appellants, and 1/7 share to appellants and 1st respondent in Civil Miscellaneous Appeal No.408 of 2020 / appellants and 5th respondent in Civil Miscellaneous Appeal No.440 of 2020.

4. The parties will henceforth be referred to as per their array in the suit.

The case of the plaintiffs

5. Plaintiff nos.1 to 3 are the daughters, defendant nos.1 to 3 are the sons and 4th plaintiff is the grandson of Sri Vadla Brahmaiah ( for short 'Brahmiah') and Smt. Kousalya. The 4th plaintiff is the son of Late Bhagyamma and another daughter of Brahmaiah.

6. The plaintiffs and defendant nos.1 to 3 constitute Hindu Undivided Joint Family; that Brahmaiah had ancestral as well as self-acquired properties and he expired intestate on 22.07.1998; that another sister of plaintiffs by name Pentamma died long back.

7. The plaintiffs alleged that Plaint 'A' to 'C' Schedule properties are the ancestral and self-acquired properties of Brahmaiah; they are not yet partitioned by metes and bounds and were in joint possession and enjoyment of plaintiffs and defendant nos.1 to 3; after the death of Brahmaiah, his wife Smt. Kousalya requested defendant nos.1 to 3 to divide the suit schedule properties equally among five daughters and three sons, and though defendant nos.1 to 3 agreed to it, they went on dragging the division of properties during her lifetime.

8. They alleged that Smt. Kousalya died on 21.02.2013 leaving plaintiffs and defendant nos.1 to 3 as her legal heirs, and thereafter, defendant nos.1 to 3 intended to grab the joint family properties knowing well that their mother Smt. Kousalya had a share in her husband's property as Class I heir.

9. They alleged that they requested defendant nos.1 to 3 to divide the suit schedule properties by metes and bounds and to allot their respective shares; that they along with defendant nos.1 to 3 are in joint possession and enjoyment of the suit schedule 'A' to 'C' properties, but defendant nos.1 to 3, in order to deprive plaintiffs of their share made an illegal partition of the properties among themselves and cheated plaintiffs by committing breach of trust.

10. They contended that defendant nos.1 to 3 partitioned 'A' Schedule property through a registered Partition Deed Ex.P.1 dt.18.12.2018 falsely mentioning therein that they alone are the successors and legal heirs of Brahmaiah, and they suppressed the existence of daughters / plaintiffs fraudulently, and got the said Deed registered.

11. They further alleged that taking advantage of Ex.P.1 registered Partition Deed dt.18.12.2018, defendant nos.1 to 3 entered into a registered Development Agreement-cum-Irrevocable General Power of Attorney Ex.P.4 dt.08.04.2019 and Ex.P.5 also dt.08.04.2019; and even in the said Agreement, the defendant nos.1 to 3 suppressed the facts of surviving female legal heirs.

12. They further alleged that 'C' Schedule property was fraudulently partitioned by defendant nos.1 to 3 by mentioning that they alone are the legal heirs / successors of Brahmaiah under Ex.P.2 dt.31.08.2015 and gave the said property for development to 4th defendant under a Development Agreement - cum - General Power of Attorney. According to plaintiffs, under the said Development Agreement Ex.P.6 dt.31.8.2015, defendant nos.1 to 3 obtained 16, 15 and 17 flats towards their shares respectively.

13. They also contended that defendant nos.1 to 3 partitioned 'B' Schedule property under Ex.P.3 dt.29.08.2019, again suppressing the existence of plaintiffs and other sisters.

14. They alleged that they got issued Ex.R.8 - Legal Notice dt.25.10.2019 to defendant nos.1 to 3 to make partition of 'A' to 'C' Schedule properties and to allot their share, but in spite of the same, the defendant nos.1 to 3 did not come forward for amicable partition.

15. They alleged that defendant No.s 4-6 are illegal purchasers of the plaint schedule properties.

16. They contended that since defendant nos.1 to 3 failed to comply, they had to file the suit for partition and also to declare Exs.P.1 to P.6 as null and void and not binding on them; and since they are in joint possession, and they paid Court Fee of Rs.200 under Section 34(2) of the Andhra Pradesh Court Fee and Suit Valuation Act, 1956.

Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019

17. Along with the suit, the plaintiffs filed Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019 under Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908 for temporary injunction restraining defendants from alienating Plaint 'A' to 'C' Schedule properties, pending disposal of the suit.

18. Initially an interim order was granted in Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019 restraining the defendants from alienating Plaint 'C' Schedule property.

Interlocutory Application No.666 of 2020 in Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019

19. To vacate the order granted in Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019, the 4th defendant filed Interlocutory Application No.666 of 2020 in Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019.

The stand of defendant nos.1 to 3 in the Written Statement / Counter filed in Interlocutory Application No.2455 of 2019

20. The relationship with plaintiffs was admitted by defendant nos.1 to 3, but denied rest of the contentions.

21. The defendants alleged that the suit is barred by Law of Limitation.

22. They also denied that that plaintiffs and defendant nos.1 to 3 constitute undivided joint family or that defendant nos.4 to 6 are illegal purchasers of the suit schedule properties.

23. They also alleged that 1st plaintiff was married in 1967, 2nd plaintiff was married in 1975, 3rd plaintiff was married in 1984, and the mother of 4th plaintiff was married in 1972; and Brahmaiah died on 22.07.1998.

24. According to them, plaintiff nos.1 to 3 and the mother of 4th plaintiff are not entitled to claim any share in the property of Brahmaiah in view of the Hindu Succession (Andhra Pradesh) Amendment Act, 1986 which came into force from 22.05.1986 since plaintiff nos.1 to 3 and mother of 4th plaintiff were married prior to coming into force of the said Amendment Act.

25. They denied that the suit schedule properties are in the joint possession of plaintiffs and defendant nos.1 to 3.

26. According to them, their mother Kousalya did not request for any partition of properties among her eight children as she was fully aware that the plaintiffs, being daughters, are not entitled to claim any share in the properties.

27. According to them, their father Brahmaiah during his lifetime, executed a Will Ex.R3 dt.26.08.1992 bequeathing ten items including the survey numbers where the plaint schedule properties are located in favour of defendant nos.1 to 3 and they took possession of the properties after the death of Brahmaiah. So, according to them, the Plaint 'A' Schedule property is not available for partition.

28. According to them, Brahmaiah also executed a registered Sale Deed Ex.R2 on 13.04.1993 in their favour transferring 'B' Schedule property to them and so 'B' Schedule property is also not available for partition.

29. They further contended that in the 'C' Schedule property there are three Survey Numbers, viz., 298/E, 198/E and 300/E, admeasuring 8712 Sq.yds., situate at Nallagandla Village, Serilingampally Mandal; that Survey No.298/E was a service Inam land of Late Vadla Brahmaiah and it was inherited by defendant nos.1 to 3; Survey No.198/E was sold to 1st defendant by Brahmaiah under Ex.R.2 dt.13.4.1993, and later 1st respondent sold it to one Aparna; land in Survey No.300/A was gifted to 2nd defendant under Ex.R.1 dt.29.12.1987.

30. They also claimed that consequential mutation orders have been passed in their favour by the Revenue Department officials.

31. They contended that the suit schedule properties are in the exclusive possession of defendant nos.1 to 3 and plaintiffs have no right to claim any share therein.

32. According to them, the partitions which have been done among defendant nos.1 to 3 are legal and valid, and it cannot be contended that there was cheating of the plaintiffs by defendant nos.1 to 3.

33. They also alleged that they have every right to enter into Development Agreements with developers such as defendant No.s 4 to 6 since they are exclusive owners of the property.

34. They also plead that suit schedule properties are ancestral properties and the plaintiffs have no equal share therein and they are not entitled to claim any share therein.

35. According to defendant nos.1 to 3, during his lifetime, Brahmaiah purchased a house in Chandanagar, Hyderabad and gifted it to 3rd plaintiff; that in 2008, defendant nos.1 to 3 paid Rs.6 lakhs each to their five sisters in the presence of witnesses and they took the cash and left the immoveable property of Brahmaiah to defendant nos.1 to 3 by relinquishing their rights.

The stand of 4th defendant in the Vacate Injunction Application :

36. The 4th defendant filed a counter in Vacate Injunction Application / Interlocutory Application No.2455 of 2019 supporting the stand of defendant nos.1 to 3.

37. In favour of 4th defendant, the defendant nos.1 to 3 had executed a Development Agreement - cum - General Power of Attorney Ex.P.6 dt.31.08.2015 for development of 'C' Schedule property for construction of residential / multi-storied apartment.

38. It stated that Ac.0.20 gts. in survey No.298/E was acquired by virtue of Occupancy Rights Certificate issued by the Revenue Divisional Officer under Ex.R.5 proceedings dt.29.07.2006; and Ac.0.36 gts. in survey No.300/A/E was acquired by Occupancy Right Certificate vide proceedings dt.09.04.2007 under Ex.R.6 by the Revenue Divisional Officer under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955.

39. It alleged that the construction is at a final stage and some of the flats were also delivered to prospective buyers and noticing this development, the plaintiffs without verifying the record, filed the above suit and stalled the registrations of the 'C' Schedule property; and that plaintiffs did not file any document to show that 'C' Schedule property is ancestral or joint family property.

40. According to it, there was no balance of convenience in favour of plaintiffs and so they are not entitled to temporary injunction.

41. It also raised a contention that the Court Fee paid is insufficient since plaintiffs are not in joint possession and that they should pay Court Fee under Section 34(1) of the Andhra Pradesh Court Fee and Suit Valuation Act, 1956.

The common order dt.17.08.2020 in I.A.No.2455 of 2019 and I.A.No.666 of 2020 filed in the said I.A.

42. By Common Order dt.17.08.2020, Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019 and Interlocutory - Application No.666 of 2020 in Interlocutory Application No.2455 of 2019 in Original Suit No.432 of 2019 were partly allowed by the Court below.

43. After referring to the contentions of the respondents/plaintiffs and the appellants/defendants 1 to 3, the Court below noted that in regard to C schedule properties there were inconsistent versions raised by defendant No.s 1 to 3 and the 4th defendant, and they stated that some items in C schedule properties are self-acquired properties of defendants 1 to 3 or their father and also ancestral property of Brahmaiah.

It observed that at the stage of deciding the interlocutory applications, it is not possible whether C schedule properties exclusively belong to defendants 1 to 3 or whether their sisters also have a share in all the properties.

44. It held that the genuineness of Ex.R3 Will deed dt.26.08.1992 relied upon by defendants 1 to 3 is surrounded with suspicions as per the contentions raised by the plaintiffs as it does not contain clear details of the properties referred to in it; that there is also no reference to the daughters of late Brahmaiah (plaintiffs 1 to 3, mother of 4th plaintiff and late Pentamma); and even if it is to be construed that the suit schedule properties are dry lands and they are not covered under the said Will, the plaintiffs would be entitled to a share in the said dry lands.

45. It observed that if the plaintiffs did not have any share in any of the properties referred to in the plaint schedule, it is not known as to why defendants 1 to 3 claim to have given Rs.6,00,000/- to five sisters each towards their share in the properties; there is no document of relinquishment executed in favour of defendants 1 to 3 by their sisters; and these aspects would be dealt with in the main case after fullfledged trial.

46. It then referred to the contentions of the 4th defendant and noted that the development agreement Ex.P6 dt.31.8.2015 entered into by the 4th defendant is not only with defendant No.s 1 to 3 but with 10 other owners and in so far as the plaint C schedule property is concerned, only 2420.32 sq. yds., is covered under the said document, which belongs to third parties who were 10 in number; and the C schedule properties and the properties belong to the said third parties who were 10 in number are adjacent to each other in one compact block.

47. It noted that the 4th defendant had already developed the properties and even in Ex.R9 reply dt.24.11.2019 to Ex.R8 legal notice dt.25.10.2019, it was mentioned that the 4th defendant already constructed apartments, sold the same to third parties and that third parties were in possession of the same. It also held that in the course of arguments, it was stated by the 4th defendant that he already constructed ground + 7 floors and that the residential building is in the finishing stage even prior to filing of the suit on 02.12.2019, but the plaintiffs mentioned in the plaint that the C schedule properties are simple dry lands, which plea does not appear to be prima facie correct. It observed that the plaintiffs were silent and allowed the 4th defendant to proceed with the construction of the residential building in the C schedule property and the rights of other third parties and purchasers would be affected.

48. It observed that whether the daughters of Brahmaiah also have a share or not has to be decided after full-fledged trial and the case of the plaintiffs cannot be totally ruled out even at the present stage.

49. As regards A schedule property, it observed that defendants 5 and 6 entered into two development agreements EXs.P4 and P5, but unlike in the case of the 4th defendant, these documents are executed only in 2019 and except leveling the ground for starting of development work and paying Rs.20,00,000/- to defendants 1 to 3, nothing further has happened, because, even approved plans have not been issued for making construction by defendants 5 and 6. So it observed that the case of defendants 5 and 6 cannot be equated with that of the 4th defendant and the A schedule property continues to be open land and its nature has not been changed.

50. It then partly allowed the above I.As. in the following manner :

(a) defendant nos.1 to 3 were directed to maintain status quo in respect of 'B' Schedule property, pending disposal of the suit;

(b) defendant nos.5 and 6 were directed to maintain status quo in respect of 'A' Schedule property;

(c) ad interim injunction granted in respect of 'C' Schedule property is vacated, but 4th defendant shall withhold the flats which have fallen to the share of defendant nos.1 to 3 but not yet delivered to them by virtue of Ex.P.6 - Development Agreement - cum - General Power of Attorney until further orders, or pending disposal of the suit, whichever is earlier;

(d) status quo shall be maintained pertaining to the remaining share of lands which are either not handed over so far or delivered to defendant nos.1 to 3 as per Ex.P.6 regarding alienation of the same in any manner whatsoever until further orders; and

(e) 4th defendant shall execute undertaking affidavit to the satisfaction of the Court invariably mentioning that they shall complete the construction and finish the work as per Ex.P.6 in respect of the share of all flats which it is entitled to deliver to defendant nos.1 to 3 without putting forth any kind of objections and obligations whatsoever and shall also unconditionally mention that they shall propose to indemnify any loss, if any, caused on account of non-completion of work to the said flats on par with other flats as per Ex.P.6, and only on compliance of such conditions, the process of resuming and finishing of construction works and the clearance for sale of the remaining flats of 4th defendant can be permitted for registration.

It also directed that 4th defendant to furnish details of the flats which are allotted to defendant nos.1 to 3 and if any flats are delivered and sold by defendant nos.1 to 3 or the sons of the 1st defendant, the full details regarding the flats which are still available should be indicated with the allotted flat numbers in the subject plan for the purpose of identification, in order to facilitate the Court and the plaintiffs to know details of the said flats which are on hold as per its orders.

It also directed the encumbrance certificate pertaining to the subject flats covered by the C schedule to be filed.

CONSIDERATION BY THE COURT

51. From the facts narrated above, it is clear that the plaintiff Nos.1 to 3, late Pentamma, late Bhagyamma and defendant Nos.1 to 3 are the children of late Vadla Brahmaiah and late Smt.Kousalya.

52. Vadla Brahmaiah died on 22-07-1988 and Smt.Kousalya died on 22-01-2013.

53. Defendant No.s 1 to 3 have entered into 3 registered partition deeds Ex.P1/dt.18.12.2018, Ex.P2/ 31.8.2015 and Ex.P3/29.8.2019 in respect of A,C and B schedule properties among themselves.

They also entered into Ex.P4/dt.8.4.2019 and Ex.P5/ dt.8.4.2019 Registered Development Agreements cum General Power of Attorneys with defendant no.s 5 and 6 in respect of A schedule property.

They also entered into Ex.P6 registered development agreement cum general power of attorney in respect of C schedule property with defendant no.4.

54. Plaintiffs are seeking 1/7th share each and defendant Nos.1 to 3 also, according to them, get 1/7th share in the plaint schedule properties.

55. It is the plea of the plaintiffs that the plaint schedule properties are ancestral properties of plaintiffs and defendant Nos.1 to 3 and they claim to be in joint possession of the same along with the defendants.

56. The defendants admit in para-10 of the written statement that they are ancestral properties, but contend that the plaint schedule properties are not available for partition.

According to them, since the plaintiffs were married before coming into force of the Hindu Succession (Andhra Pradesh) Amendment Act, 1986 w.e.f. 22-05-1986, they are not entitled to any share in these properties.

Alternatively, they also plead that late Brahmaiah executed a Will Ex.R-3 on 26-08-1992 in favour of defendant Nos.1 to 3 bequeathing 10 items including land in Sy.Nos.58, 176, 198 and 300; that the said land was Inam land in respect of which Occupancy Right Certificate Ex.R-4 was issued on 30-12-2002 under A.P. (Telangana Area) Abolition of Inams Act, 1955 in favour of 3rd defendant for 4114 sq. yds equivalent to Ac.0.34 gts in Nallagandla village, which is 'A' schedule property and so it is not available for partition.

They alleged that Late Brahmaiah executed Ex.R-2 sale deed on 13-04-1993 in favour of defendant Nos.1 to 3 in respect of 605 sq. yds equivalent to Ac.0.05 gts in Sy.No.58 of Nallagandla village which is 'B' schedule property, and so, it is not available for partition.

They also alleged that two of the items comprising 'C' schedule property i.e. dry land in Sy.No.298/E and Sy.No.198/E in Nallagandla village were Service Inam lands in respect of which Occupancy Right Certificate was issued to defendant Nos.1 to 3 under Ex.R-5 dt.29-07-2006 under the A.P. (Telangana Area) Abolition of Inams Act, 1955; and the 3rd item which is dry land in Sy.No.300/A of Nallagandla village was also Inam land in respect of which Occupancy Right Certificate Ex.R-6 was issued under the above Act to defendant Nos.1 to 3 on 10-04-2007, and that this item had been gifted under Ex.R-1 dt.29-12-1987 in favour of the 1st defendant by late Brahmaiah. It is therefore the case of defendant Nos.1 to 3 that 'C' schedule property is also not available for partition.

57. Since the defendant Nos.1 to 3 as well as the plaintiffs admit that the plaint schedule properties are all ancestral properties, the question is;

" Whether plaintiffs prima facie are entitled to any share in the Properties?"

58. No doubt, the Hindu Succession (A.P. Amendment) Act, 1986 (Act 13 of 1986) inserted Section 29-A in the Hindu Succession Act, 1956 w.e.f. 05-09-1985 conferring coparcenary rights on those female children who were not married prior to 05-09-1985 or if there is a partition by then in the joint family.

59. But this embargo was removed when Parliament enacted Act 39 of 2005 amending Section 6 of the Hindu Succession Act, 1956 w.e.f. 09-09-2005. The Parliament removed the stipulation that marriage of the daughter should not have been performed before 05- 09-1985, and provided that all the daughters would be deemed to be coparceners without making any reference to their marriage with one exception that partition should not have taken place before 20-12-2004.

60. A Single Judge of the Andhra Pradesh High Court in Damalanka Ganga Raju and others Vs. Nandipati Vijaya Lakshmi and others, (2007) 4 ALD 694 held that the Act 39 of 2005 enacted by the Parliament would override Act 13 of 1986 made by the Legislature of the State of Andhra Pradesh, that there is repugnance between the two laws, and under Article 254(1) of the Constitution of India, the State law would be void and predominance has to be given to the Union Legislation.

In that case, after passing of the preliminary decree for partition, the daughters were held entitled to shares as coparceners and the share of the son, who had been granted 1/3rd share was held to be reduced to 1/6th share because there were 4 daughters born to the 1st defendant therein(father of the parties).

61. Therefore, the plea of the defendant Nos.1 to 3 in the instant case that the plaintiffs have got married prior to 22-05-1986/05-09- 1985 and so they are not entitled to any share by virtue of Act 13 of 1986 enacted by the Legislature of the State of Andhra Pradesh, cannot be sustained because after Act 39 of 2005, the A.P.State legislature enactment Act 13 of 1986 stands overridden and has no effect. So notwithstanding the fact the daughters of Brahmiah/plaintiffs 1 to 3, Late Bhagyamma and Late Pentamma were all married prior to Act 13 of 1986, they still have shares in the ancestral property, because it is not the case of the defendant No.s 1 to 3 that there was any partition prior to 20-12-2004.

62. The Supreme Court in Vineeta Sharma Vs. Rakesh Sharma and others, (2020) 9 SCC 1 considered Section 6 of the Hindu Succession Act, 1956 as amended by Act 39 of 2005 and clarified the legal position as under:

"137. ... ....

137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

63. Thus prima facie, in ancestral property, daughters like the plaintiffs 1 to 3, mother of the 4th plaintiff Bhagyamma and the deceased Pentamma have been conferred rights as if they were coparceners.

64. Though the counsel for appellants / defendant nos.1 to 3 sought to contend that the plaintiffs were given huge dowries, gold and silver ornaments at the time of their marriages and were also given large amount of money, and contended that there is a relinquishment of their interest in the plaint schedule properties by the plaintiff nos.1 to 3, mother of 4th plaintiff and Smt. Pentamma, any such relinquishment cannot be presumed without there being any registered document. If the daughters of Brahmiah have no share in the properties, the defendants 1 to 3 should explain why they allegedly paid large sums amounting to Rs.6 lakhs each to them, but no such explanation is forthcoming.

65. Admittedly, the plaintiffs have pleaded that they are in joint possession of the plaint schedule properties.

66. But, defendant nos. 1 to 3 did not take any plea of adverse possession in the Written Statement, and merely pleaded exclusive possession.

67. In law, possession of one of the co-owners (like the defendants 1 to 3) is deemed to be the possession of other co-owners ( plaintiffs 1 to 3, Late Bhagyamma and Late Pentamma) as well, though only one co-owner is in exclusive possession. Such possession is presumed to be on the basis of joint title. A co-heir in possession cannot render its possession adverse to other co-heirs, not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. (N.Padmamma Vs. S.Ramakrishna Reddy, (2015) 1 SCC 417 )

68. The next question is whether in respect of 'A' schedule property and 'C' schedule property (which are said to be Inam lands) and in respect of which Occupancy Right Certificates were given under the A.P. (Telangana Area) Abolition of Inams Act, 1955 to 3rd defendant under Ex.R-4 dt.30-12-2002, and to defendant Nos.1 to 3 under Exs.R-5 dt.29-07-2006 and Ex.R-6 dt.10-05-2007, the plaintiffs would be entitled to a share prima facie.

69. This issue was also considered by Supreme Court in N.Padmamma (3 supra).

The Supreme Court considered whether the Civil Court has jurisdiction to entertain a suit for partition for division of respective shares amongst the members of the joint family, when in respect of some of the lands, Occupancy Right has been granted in favour of one of the family members in terms of the provisions of the A.P. (Telangana Area) Abolition of Inams Act, 1955.

In that case, one Ramakrishna Reddy, original owner had two sons S.Ramachandra Reddy and S.Anantharam Reddy. The former passed away in 1968 leaving behind two wives, two daughters and a son. The first wife and her daughter filed the civil suit for partition of the property left behind by S.Ramachandra Reddy by metes and bounds. The 1st defendant, who is the son through the second wife, and who along with his mother and sister was impleaded as defendants in the suit, took a plea that Occupancy Right Certificate had been granted in his favour for certain agricultural land under the Act and by reason of the said grant, he became the absolute owner of the said land.

The trial Court upheld his claim and the High Court also confirmed it holding that the grant of Occupancy Right Certificate to him was in his individual capacity as the Occupant of the land, and so the plaintiffs must fail.

The Supreme Court reversed the said view and decreed the suit for the said land holding that the inam land had continued to be in possession of Ramachandra Reddy till his demise in 1968; and on his death, the rights and privileges in regard to the same including his entitlement to claim Occupancy Rights under the Act on account of his being in cultivating occupation of the land on the date of vesting were inherited by all his legal heirs; since the 1st defendant was the only male member in the family, any recognition of his being in possession and personal cultivation of the land held by his father was in the absence of any plea or proof of ouster, to be taken as cultivation on behalf of the entire family, and not in his individual capacity.

It held that possession of a co-heir is in law treated as possession of all the co-heirs and if one co-heir has come in possession of the properties, it is presumed to be on the basis of the joint title; a co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. It held that the grant of such Occupancy Rights to the 1st defendant was for the benefit of all the legal heirs left behind by Ramachandra Reddy.

70. On the basis of this principle of law, merely because Occupancy Rights Certificate for the above items of land in the plaint schedule were issued to one or to all defendants 1 to 3, it cannot be said that they become the exclusive owners of the same. It has to be presumed that such grant was for the benefit of all the legal heirs of late Brahmaiah.

71. We may also point out that no notice appears to have been issued to the plaintiffs 1 to 3, late Bhagyamma, the mother of 4th plaintiff or the other deceased sister by name Pentamma before these orders were passed by the competent authority under the A.P. (Telangana Area) Abolition of Inams Act,1955 granting the Occupancy Rights Certificates to the defendants. Admittedly, they were all married and were not living in Nallagandla Village where the plaint schedule properties are located and unless their addresses were supplied to the competent authority issuing the Occupancy Rights Certificates under the A.P. (Telangana Area) Abolition of Inams Act, 1955, it would not be possible for the plaintiff nos.1 to 3, the mother of 4th respondent Late Bhagyamma or Late Pentamma to know about these proceedings at all.

72. Prima facie it appears that without disclosing that their sisters are also entitled to a share in the Occupancy Rights under the A.P. (Telangana Area) Abolition of Inams Act, 1955 to the competent Authority under the Act, and without giving their addresses to the competent authority, the Occupancy Rights Certificates have been procured by the defendants 1 to 3, particularly when Exs.R-5 and R-6 Certificates were issued after the Hindu Succession (Amendment) Act, 2005 came into effect on 09-09-2005.

73. Such conduct on their part prima facie amounts to playing fraud on the competent Authority and also the plaintiffs, and they cannot be allowed to take advantage of their own wrong to the disadvantage of the plaintiffs.

74. In Kusheshwar Prasad Singh v. State of Bihar, (2007) 11 SCC 447 , the Supreme Court reiterated the well established legal principle that "no party can take advantage of his own wrong" in the following terms:

"14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal, (1961) AIR SC 1353 wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).

15. In Union of India v. Major General Madan Lal Yadav, (1996) 4 SCC 127 the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated:

"It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong". (emphasis supplied)

75. We may also point out in Ex.R.3 - Will dt.26.08.1992 relied upon by defendant nos.1 to 3, the survey numbers of the agricultural land in Nallagandla Village said to have been bequeathed thereunder to the defendant nos.1 to 3, are not mentioned.

This Will also does not appear to have been produced before any statutory authority by defendant nos.1 to 3 and there is nothing to show that its existence was made known by defendant nos.1 to 3 to their sisters / plaintiffs.

In any event, the due execution of the Will by Vadla Brahmaiah has to be established during trial by examining the attestors and the persons familiar with the handwriting of the executant.

76. As regards Ex.R.1 / 29.12.1987 - Gift Settlement Deed allegedly executed by Late Brahmaiah in favour of 2nd defendant in respect of 'C' Schedule property, such a gift of ancestral property is prima facie void in law. (See Mukund Singh vs. Wazir Singh, (1972) 4 SCC 178 ).

77. As regards Ex.R.2 - registered Sale Deed dt.13.04.1993 executed by Late Brahmaiah in favour of defendant nos.1 to 3 alienating the 'B' schedule property to them for consideration is concerned, since even 'B' schedule property is admitted by defendant nos.1 to 3 to be ancestral property, such alienation can be upheld only if there is legal necessity or benefit to estate or for meeting an antecedent debt. (Sunil Kumar vs. Ram Parkash, (1988) 2 SCC 77 ). There is no recital in the Ex.R.2 - Sale Deed about existence of any of these three contingencies. Therefore, prima facie, this alienation is also not valid in law.

78. Counsel for the appellants also pleaded that the Court Fee paid by the plaintiffs is inadequate as they are not in joint possession, and they ought to have paid court fee under Section 34(1) of the A.P. Court Fee and Suit Valuation Act, 1956 and not under Section 34(2) thereof.

79. We are not inclined to express any opinion on this aspect because in the absence of a plea of adverse possession raised by the defendant nos.1 to 3, it is possible to hold that the possession of defendant nos.1 to 3 of the plaint schedule properties is on behalf of their sisters ( i.e the plaintiffs 1 to 3, late Pentamma and Late Bhagyamma) as well, in which event, the Court Fee paid would be correct. In any event, the plaintiffs can be asked to pay more Court Fee if there is an adverse finding about they being in joint possession, after trial by the Lower Court.

80. Lastly, it is also contended by the counsel for the appellant that there is delay on the part of plaintiffs in challenging the transactions entered into by defendant nos.1 to 3, and since the suit itself had been filed in 2019 and alienations of the properties had happened long before the filing of the suit, the suit is bared by limitation.

81. Admittedly, the plaintiffs are not parties to any of these documents Exs.R.1 to R.3, Exs.P.1 to P.6.

82. It is settled law that a plaintiff, who is not eo nomine a party to a sale deed, need not pray for cancellation of the sale d

Please Login To View The Full Judgment!

eed and it is open for him to question the validity and binding nature of the sale deed. It is prima-facie also not necessary for the plaintiff to file the suit within 3 years from the date of alienations. In Ramaswamy vs. Rangachariar, (1940) AIR Madras 113(F.B.) , the Full Bench of Madras High Court held that that in respect of alienations by the father to which the minor son was not eo-nomine party, which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation. It quoted the following passage in Unni v. Kunchi Amma,1891 14 Madras 26 : "If a person not having authority to execute a deed , or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist." The Supreme Court approved the decision in Ramaswami (10 supra) in Nagappan v. Ammasai, (2004) 13 SCC 480. In Bijoy Gopal vs. Krishna Mahishi Debi,1907 34 ILR(Cal) 32 (P.C.) , same principle has been followed regarding alienations made by a widow of the last male owner which are sought to be impeached by the reversioners as not binding on them. The Privy Council held that the relief for declaring that a sale deed is null and void when prayed in a plaint by a party, who is not eo nomine a party to it, is in fact an unnecessary relief. In Patamata Seshagiri Rao v. Pamidimukkala Sree Ramachandra Rao and others, (1999) 1 ALD 333 (MANU/AP/0061/1999 =) a learned single Judge of this court held that if a suit is filed by a son for partition of joint family properties , and there is a sale by his father, it is not necessary for him to pray for cancellation of the sale deed and it is open for him to question the validity and binding nature of the sale deed, since he is not eo nomine a party to it, and such a suit will not be barred by limitation even if it is not filed within 3 years from the date of the alienation. 83. In view of the above decisions, prima-facie we hold that a suit for partition, without a prayer for cancellation of sale deeds executed by coparceners of plaintiff without authority, is maintainable at the instance of such plaintiff; and the question of such a suit being barred by limitation on the ground that it was not filed within three years from the date of alienation, does not prima facie arise. This is because relief of cancellation of the sale deed need not even be prayed for. 84. In any event, the issue of bar of limitation raised by defendant nos.1 to 3, being a mixed question of law and fact, would have to be gone into by the Trial Court. 85. The Court below has taken note of the delay in filing the suit with regard to the Development Agreement Ex.P.6 dt.31.08.2015 in respect of 'C' schedule property by protecting the interests of the 4th defendant with whom it was executed by defendant nos.1 to 3, and had protected the interests of all parties. 86. Though counsel for appellants sought to lay emphasis on a statement made by the trial court about the plaintiffs delaying the filing of the suit and approaching the Court with unclean hands, we are of the view that the defendant nos.1 to 3 cannot be allowed to cheat their five sisters (plaintiff nos.1 to 3, Late Bhagyamma and Late Pentamma) out of enjoyment of all the plaint schedule properties by suppressing from the competent authority, their existence and addresses, and securing the Occupancy Rights Certificates clandestinely in the name of defendant nos.1 to 3 and then entering into Development Agreements cum General Power Of Attorneys and disposing of the said properties to defendants 4 to 6. 87. We therefore do not find any merit in these Appeals and the same are accordingly dismissed. No order as to costs. 88. We make it clear that whatever observations or findings have been given in this order by us are only for the purpose of disposing of these Appeals and the Court below shall decide the suit uninfluenced by any of these observations or findings, strictly in accordance with law. 89. As a sequel, miscellaneous petitions pending if any in these Appeals, shall stand closed.
O R