Andhra HC (Pre-Telangana)
K. Chinna Thimma Reddi vs K.A. Venkatarami Reddi (Died) And Ors. on 31 July, 2003
Equivalent citations: 2004(1)ALT66
JUDGMENT C.Y. Somayajulu, J.
1. First defendant in O.S.No. 427 of 1978 on the file of the Court of the District Munsif, Hindupur, is the appellant in this Second Appeal. 1st respondent filed the said suit against the appellant and 6th respondent for declaration of his title to item 7 of the plaint schedule and for delivery of possession thereof and also for a decree of perpetual injunction restraining the appellant and 6th respondent from interfering with his possession and enjoyment of item 2 of the plaint schedule, contending that he, appellant and 6th respondent who are the sons of Hanumantha Reddy had divided their properties under a registered Partition Deed dated 18-2-1964 and took possession of their respective shares, whereunder the properties specified in the schedule appended to the plaint were allotted to his share. Item 7 of the plaint schedule is house properly with vacant site. So, appellant, who has a large family requested permission to enjoy backyard of the house for which he agreed. Later appellant started claiming the property permitted to be enjoyed by him as his own. Hence, the suit.
2. Appellant filed his written statement contending that 1st respondent who relinquished his share in the joint family properties taking undue advantage of his illiteracy and helplessness, by playing fraud, managed to obtain his signature and got registered the Partition Deed dt. 18-2-1964 and so that said partition is not binding on him. 6th respondent adopted the written statement of the appellant.
3. During the pendency of the suit in the trial Court 1st respondent died. So, respondents 2 to 6 came on record as his legal representatives.
4. In support of the case of respondent four witnesses were examined as P.Ws.1 to 4 and Exs.A-1 to A-15 were marked. On behalf of the appellant and 6th respondent, three witnesses were examined as D.Ws.1 to 3 and Exs.B-1 to B-3 were marked. The trial Court held that the partition Deed relied on by respondents 1 to 5, (Ex.A-1) is not true and valid since none of the attestors thereto were examined and dismissed the suit. On appeal by respondents 2 to 5 the lower Appellate Court reversed the finding of the trial Court and decreed the suit. Hence, this Second Appeal by the 1st defendant in the suit.
5. The point for consideration is whether the reversal of the finding of the trial court by the lower appellate court is based on proper appreciation of evidence?
6. The contention of the learned counsel for the appellant is that since the 1st respondent relinquished his right in the joint family properties under Ex.B-1, the question of his claiming share in the joint family properties under a deed of partition does not arise, and since respondents 1 to 5 failed to examine any of the attestors to Ex.A-1, the trial Court rightly disbelieved Ex.A-1 and upheld the contention of the appellant that Ex.A-1 is obtained after playing fraud on him, but the lower appellate court without property appreciating the evidence on record erroneously reversed the finding of the trial Court.
7. No doubt Ex.B-1 shows that 1st respondent relinquished all his right in the joint family properties by receiving some cash consideration. The validity of Ex.A-1 partition deed can be doubted if it related to the joint family properties of the brothers, i.e., appellant, 6th respondent and 1st respondent. A reading of Ex.A-1 shows that the brothers had partitioned the properties inherited by them from their mother thereunder. Since the property inherited from the mother is not and cannot be joint family property, and would be in the nature of a self acquired property, the fact that 1st respondent relinquished his right in the joint family property does not mean that the relinquishment operates in respect of the property inherited by him from his mother also. Therefore, Ex.B-1 is of no consequence in deciding the question whether Ex.A-1 is true and valid.
8. Since, the appellant admitted execution of Ex.A-1 and took a plea that it was obtained by fraud, it is for him to establish the fraud alleged.
9. In Bishnudeo Narain v. Seogeni Rai and Ors. , the Supreme Court held that in cases of fraud, undue influence and coercion, the parties pleading them must set forth full particulars and the case can be decided on the particulars as laid, and that there can be no departure from them in evidence, and that general allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be. In this case except making a bald allegation there is no positive proof of the alleged fraud. For nearly fourteen years appellant did not take any steps to set aside Ex.A-1. A reading of the written statement of first defendant shows that even on the date of Ex.A-1 he knew that 1st respondent was playing fraud on him. Then an ordinary prudent man he ought to have taken steps to set aside Ex.A-1 within three years from the date of Ex.A-1. He did not do so. So, after more than a decade subsequent to Ex.A-2, by baldly alleging in his written statement that Ex.A-1 was obtained by fraud, appellant cannot get over Ex.A-1.
10. Since a Deed of Partition is not a compulsorily attestable document, Section 68 of Evidence Act has no application to Partition Deeds. The lower appellate Court, on the basis that the finding of the trial Court that Ex.A-1 is hit by Section 68 is erroneous, and on the basis that the appellant admitted execution of Ex.A-1 in his cross-examination and that he took possession of the property that was given to his share held that no fraud is made out by the appellant, rightly reversed the findings of the trial Court. In the facts and circumstances, the judgment of the lower appellate court cannot be said to be erroneous and so I find no merits in the second appeal. The point is answered accordingly.
11. Hence, the Second Appeal is dismissed. But, in the circumstances without costs.