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[Cites 27, Cited by 0]

Telangana High Court

M. Balvanth Reddy vs M. Digambar Reddy on 26 June, 2023

Author: G.Radha Rani

Bench: G.Radha Rani

       THE HONOURABLE DR.JUSTICE G.RADHA RANI

                           C.C.C.A.No.16 of 2020


JUDGMENT:

This appeal is filed by the appellant - defendant aggrieved by the judgment and decree dated 13.09.2019 passed in O.S.No.714 of 2013 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad.

2. The parties are herein after referred as arrayed before the trial court.

3. The respondents - plaintiffs filed the suit for eviction of the defendant from the suit schedule items 1 and 2 of the properties and for damages and mesne profits for his illegal occupation in the said properties from the date of filing of the suit till the date of vacating the premises. The defendant was none other than the elder brother of the plaintiffs. The plaintiffs contended that their mother acquired the house bearing Municipal No.18-4-711 and 712 with an area of 300 square yards having purchased the same from Abdul Gafoor under registered sale deed dated 25.09.1961 registered in the Office of the Sub- Registrar, Azampura, Hyderabad and out of love and affection towards the plaintiffs, gifted the said property in favour of the plaintiffs vide registered gift settlement deed bearing Document No.4090 of 2004 dated 26.11.2004. Likewise, their mother had also acquired Item 2 of the schedule property vide registered sale deed bearing Document No.3812 of 1982 registered on 2 Dr.GRR, J ccca_16_2020 08.06.1982 in the Office of the District Registrar, Registrar Office, Hyderabad from Smt.T.Savithramma and gifted a portion of the said house bearing No.4-8-50/1/3 admeasuring 20 square yards to each of the plaintiffs by way of registered gift settlement deeds on 15.10.2003. The defendant No.1 was residing in the western portion of item No.1 of the schedule property consisting three (03) rooms in about 100 square yards of land. 3.1. The plaintiffs further submitted that with the financial help of their parents they started a shop by name Sri Mahalakshmi Engineering Enterprises in a portion of Item No.2 of schedule property and the defendant was taking care of the same. The defendant did not have any technical knowledge. The plaintiffs 1 and 2 used to support the defendant by giving technical and financial advice. The defendant was not interested in studies since his childhood and did not give any respect to his parents and not bothered about the welfare of the family. Even though, the shop was established by the 2nd plaintiff, the earnings from the said shop were diverted to the family of the defendant to meet his family needs.

3.2. The plaintiffs further submitted that after the execution and registration of gift settlement deeds in their favour with regard to items 1 and 2 of the schedule property, they requested the defendant several times to vacate the said premises and to deliver the possession.

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Dr.GRR, J ccca_16_2020 3.3. As a counterblast, the defendant filed a suit for partition vide O.S.No.562 of 2005 on the file of the VII Additional Senior Civil Judge, City Civil Court, Hyderabad. The suit was contested by the plaintiffs in the capacity of defendants. After the completion of the entire trial and when the matter was posted for arguments, the defendant herein who was the plaintiff in the said suit filed I.A.No.414 of 2010 seeking permission to withdraw the suit with a liberty to file a fresh suit on the same cause of action and the said I.A. was allowed by the court and the suit was dismissed as withdrawn. Thereafter, the plaintiffs several times demanded the defendant to vacate the premises and deliver vacant possession. As the defendant was not vacating the property and without any right, title or interest of continuing his occupation, the plaintiffs got issued a legal notice on 31.07.2012 demanding the defendant to vacate the suit premises and in the event of his failure to vacate, he was liable to pay damages @ Rs.5,000/- in respect of item No.1 of schedule property and Rs.5,000/- in respect of item No.2 of schedule property. The defendant received the said notice and gave reply denying the contents of the legal notice. Left with no alternative, they filed the suit for eviction, recovery of possession and damages.

4. The defendant filed written statement contending that house bearing No.18-4-711 and 712 admeasuring 300 square yards situated outside Aliabad, Hyderabad was purchased by their father in the name of their mother as benami. The document dated 26.11.2004 vide Document No.4090 of 2004 was a bogus 4 Dr.GRR, J ccca_16_2020 and created document. His mother M.Muthamma was not fit to register the document as claimed by the plaintiffs. The gift settlement deed dated 26.11.2004 in respect of H.No.18-4-709 and 710 admeasuring 100 square yards was also a false and fabricated document. The defendant while admitting the ownership of his mother in respect of premises bearing No.4-8-50/1/3 contended that she was a benami. He contended that being the eldest son, he was very much attached to his mother. He used to give the entire income from the business to his mother. He also helped in contributing to the education and marriages of all the plaintiffs. He further contended that the gift deeds dated 15.10.2003 in respect of House No.4-8-50/1/3 were a result of fraud. He contended that his mother was seriously ill since the year 2002 and she was out of her mental balance, as such, she was not in a position to understand the things particularly about the documents. The said documents were created by the plaintiffs. They were nonest in the eye of law and not binding on the defendant. The defendant was in occupation over the schedule properties as a co-owner and that too from the date of purchase, prior to the date of fabrication of the documents by the plaintiffs.

4.1. He further contended that the plaintiffs had nothing to do with the business viz., Mahalakshmi Engineering Enterprises. The said business was established and started by him. At that time, the plaintiffs were minors and were not in a position to contribute any amount.

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Dr.GRR, J ccca_16_2020 4.2. He admitted filing of a suit for partition vide O.S.No.562 of 2005, but contended that their mother died during the pendency of the suit and thereafter all the plaintiffs along with other relatives agreed to give the defendant a share in the properties and requested him to withdraw the said suit. Under the said circumstances, the defendant had withdrawn the suit but kept open his option to file a fresh suit if needed.

4.3. He further contended that the reply notice filed by the plaintiffs was a fabricated and a created document. It neither contained the signatures of the defendant nor his advocate and the said reply notice was created by the plaintiffs. He further contended that the suit was barred by limitation. The plaintiffs failed to state on which date they were dispossessed by the defendant and denied the legality of the gift deeds and the ownership of the plaintiffs over the schedule properties and contended that he was in possession of the schedule properties as an owner and perfected his title by way of adverse possession. Non-filing of a suit for declaration of title by the plaintiffs was fatal and prayed to dismiss the suit.

5. The plaintiffs filed a rejoinder to the written statement contending that their mother M.Muthamma was fit and healthy at the time of registration of the documents and she personally appeared before the Registrar / Sub-Registrar in the Sub-Registrar's Office and executed and registered the documents 6 Dr.GRR, J ccca_16_2020 pertaining to the property in favour of the plaintiffs. They submitted that they had never contacted the defendant nor requested the defendant to withdraw O.S.No.562 of 2005. The defendant who was the plaintiff in the said suit for the reasons best known to him, filed I.A.No.514 of 2010 under Order XXIII Rule 1 read with Section 151 of CPC seeking permission to withdraw the said suit. The said I.A. was allowed on 21.02.2011. The plea taken by the defendant that the said suit was withdrawn on the request of the plaintiffs was false and baseless. The occupation of the defendant in the schedule properties was illegal, unauthorized, as the said properties were gifted by their mother M.Muthamma in their favour. The defendant had gone to the extent of making allegations about the receipt of legal notice and giving a reply by his counsel. The suit was filed within the limitation as notice for eviction was issued on 26.07.2012 and the suit was filed on 30.03.2013.

6. Basing on the said pleadings, the trial court framed the issues as follows:

1. Whether the plaintiffs are entitled to seek a direction to the defendant to deliver peaceful vacant physical possession of the property bearing No.18-4-711 and 712 admeasuring 100 square yards situated outside Aliabad, Hyderabad, as prayed for?
2. Whether the plaintiffs are entitled to seek a direction to the defendant to deliver peaceful vacant physical possession of the property bearing No.4-8-51/1/3 admeasuring 80 square yards situated at Putlibowli, Hyderabad as prayed for?
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3. Whether the plaintiffs are entitled to a sum of Rs.5,000/- per month from the defendants towards the damages and mesne profits for his illegal occupation of item No.2 of suit property from the date of suit till the date of vacating the suit premises?

4. Whether the two gift settlement deeds dated 26.11.2004 are fake, fabricated, bogus and created documents?

5. Whether the defendant is in occupation over the items 1 and 2 of the suit properties as a lawful share holder?

6. Whether there is cause of action to file the suit?

7. Whether the suit is barred by limitation?

8. To what relief?

7. The plaintiff No.1 examined himself as PW.1. Exs.A1 to A26 were marked on behalf of the plaintiffs. The defendant had not adduced any oral evidence. Exs.B1 to B4 and B4(a) were marked during the cross-examination of PW.1 on behalf of the defendant.

8. On considering the oral and documentary evidence on record, the trial court decreed the suit in part directing the defendant to vacate and deliver vacant and peaceful physical possession of the schedule properties to the plaintiffs within four (04) months from the date of the judgment.

9. Aggrieved by the said judgment and decree, the defendant preferred this appeal contending that the issues framed by the court were erroneous. The court had incorrectly and improperly framed the issues. The issues having not 8 Dr.GRR, J ccca_16_2020 been properly framed, the findings recorded by the court would stand vitiated. Except the plaintiff No.1, no other plaintiffs who were the alleged donees under Exs.A3 to A5 were examined. Without they being examined, the said documents could not have been proved. Mere marking of document was not proving a document. The court could not have granted a decree on the basis of documents which were not proved. The originals of Exs.A1 to A5 were not filed by the plantiffs. No explanation was given by the plaintiffs as to why the originals had not been filed. The court below failed to consider that Exs.A2 to A5, A7, A8, A17 and A21 were marked subject to objection. The court below had not recorded any findings with reference to his objections with regard to the admissibility of the documents. The certified copies of the documents were not sufficient to prove the execution of the documents. The original documents had to be produced to prove execution and decree could not be passed on the basis of certified copies. The burden of proof was on the plaintiffs to prove that they derived lawful title under Exs.A2 to A5. Written submissions were also filed by their counsel apart from oral documents but the court below failed to consider their contention with regard to the legality of the documents.

10. Heard the learned Senior Counsel Sri R.A.Achutanand for the appellants and the learned Senior Counsel Sri Vivek Jain for the respondents. 9

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11. The learned Senior Counsel for the appellant - defendant contended that the court below failed to consider that the defendant denied the very ownership of his mother M.Muthamma in respect of schedule properties. When the mother of the plaintiffs or the attestors of the alleged documents were not examined, the court could have drawn a presumption and held that the alleged gift deeds were not proved. The admissions made by PW.1 were also not considered by the trial court. The court below failed to consider that the claim of the plaintiffs was barred by limitation. Prior to the filing of the present suit, the defendant filed a suit for perpetual injunction vide O.S.No.4793 of 2003 and also filed O.S.No.562 of 2005 for partition. PW.1 admitted in his cross-examination that the defendant was denying the title of his mother since 1986 but the present suit was filed in the year 2013, i.e. after 27 years from the date of dispossession. Thus, the defendant perfected his title by way of adverse possession and the suit for recovery of possession was hopelessly barred. He further submitted that the defendant also contended about the mental condition of his mother M.Muthamma, denied her title and claimed that the gift deeds were bogus, as such, the suit was barred under Sections 58 and 65 of the Limitation Act.

12. The learned Senior Counsel for the appellant - defendant further contended that the court below failed to consider that a void document would not be needed to be questioned by the defendant. When the plaintiff filed a suit for eviction, the burden would lie on the plaintiff to establish his title over the 10 Dr.GRR, J ccca_16_2020 property but the plaintiff miserably failed to establish his title. The suit for recovery of possession could not be decided in a summary way without reference to the pleadings and evidence. The court below had ignored the cardinal principles while deciding the suit and erroneously recorded the findings. The court below failed to give a finding on issue No.4, whether the gift deeds were fake, fabricated, bogus and created. When once the court had not recorded a finding with reference to the said issue which had got a bearing on its maintainability, the entire findings recorded by the court would stand obliterated and no decree could be passed for recovery of possession and prayed to allow the appeal.

13. The learned Senior Counsel for the respondents on the other hand supported the judgment of the trial court and submitted that the trial court after considering all the material facts and documents on record passed a well reasoned order which required no interference to set aside the same and prayed to dismiss the appeal.

14. On considering the contentions of both the learned counsel, the points that arise for consideration in this appeal are:

1. Whether the plaintiffs are entitled for recovery of possession of suit schedule items 1 and 2 properties from the defendant?
2. Whether the judgment of the trial court is sustainable and whether the same is in accordance with law and facts on records?
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3. To what result?

Point No.1:

15. The plaintiffs filed the suit for recovery of possession basing on their title. As such, the plaintiffs have to succeed on the strength of their title. The plaintiffs are obligated to establish their title over the suit schedule 1 and 2 items. The plaintiffs contended that their mother M.Muthamma was the owner of the suit schedule properties items 1 and 2 by virtue of registered sale deeds and filed Ex.A1, the certified copy of the sale deed bearing Document No.3812 of 1982 executed in favour of M.Muthamma by T.Savithramma with regard to item No.2 of the schedule property and filed Ex.A6, the certified copy of the sale deed bearing Document No.2065 0f 1961 executed by Abdul Gafoor in favour of M.Muthamma pertaining to item No.1 of the schedule property. The plaintiffs contended that their mother out of love and affection towards them had gifted the property including Item No.1 vide Ex.A8 on 26.11.2004 and executed four (04) registered gift deeds for 20 square yards each in favour of each of them with regard to Item No.2 of the schedule property under Exs.A2 to A5.
16. The plaintiff No.1 was examined as PW.1 and through him all the above documents were marked. The contention of the learned counsel for the appellants - defendants was that the plaintiffs 2 to 4 were not examined to prove the contents of the gift deeds marked under Exs.A3 to A5 and the same could 12 Dr.GRR, J ccca_16_2020 not be considered as proved. He also contended that the witnesses to the said documents were also not examined to prove its contents. But on a perusal of the pleadings, the defendant was not disputing the contents of the documents. He on one hand contended that the gift deeds were fabricated documents and on the other hand contended that his mother was not mentally stable to execute the same. Both the above pleas are inconsistent to each other. If he is admitting that the gift deeds are executed by his mother, then only her mental condition to execute the same need to be proved. If the defendant is contending that the gift deeds are fabricated documents, he ought to have filed a petition to send them to an expert for comparison of signatures or thumb impressions of his mother, which he failed to do so. A gift deed is not a compulsorily attestable document as per Section 68 of the Indian Evidence Act, 1882. As such, there is no mandatory requirement of examining the attesting witnesses as in the case of a Will. Unless the execution of the gift deed is specifically denied, there is no obligation to prove the execution by examining the attesting witnesses. The gift deeds are registered in accordance with the provisions of the Indian Registration Act, 1908. Hence, this Court does not find any merit in the contention of the learned counsel for the appellant in this regard.
17. Another contention of the learned counsel for the appellant was that the original gift deeds were not filed by the plaintiffs and they filed only certified copies of the same, an objection was taken at the time of marking of the 13 Dr.GRR, J ccca_16_2020 documents and the said documents were marked subject to objection but the trial court failed to decide the said objection and relied upon the judgment of the High Court of Madhya Pradesh in Smt. Rekha Rana and Others v. Smt. Ratnashree Jain1, wherein it was held that:
".....19. We may summarize the position thus:
(i). Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be preceded by laying of any foundation for acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a private document copied therein.
(ii). Production and Marking of a certified copy as secondary evidence of a private document (either a registered document like a sale or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under clause (a), (b) or (c) of Section 65.
(iii). Production and Marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Section 67 and 68 and ensuring sections in Chapter V of Evidence Act). "

18. He also relied upon the judgment of the High Court of Orissa in Bhaskar Sahu v. Anama Swara and Others2, wherein it was held that:

"...9. Now coming to the admissibility of Ext. 1, the certified copy of the sale deed dt. 28-9-1934 it is beyond controversy that the said sale deed is a private document as distinguished from a 1 AIR 2006 (MADHYA PRADESH) 107 2 AIR 1987 (ORISSA) 138 14 Dr.GRR, J ccca_16_2020 public document. It is the source of title of the purchases thereof, namely Shyamsundar Padhi and Lakshman Padhi who were said to be the joint purchasers. The plaintiff produced a certified copy of the said document from the Sub-Registrar's Office in the year 1965. The rule of evidence requires that a document must be proved by primary evidence exception being that the secondary evidence may be given of the existing condition, or contents of a document in cases enumerated in Section 65, Evidence Act. One of the conditions where secondary evidence can be admitted in evidence is, when the party offering evidence of the contents of the document cannot, for any reason, not arising from his own default or neglect, produce the original document in a reasonable time. In the present case the plaintiff wants to bring his case within the aforesaid exception contending that, it was a fit case where the certified copy of the sale deed should be accepted as secondary evidence as the original thereof is not available to be produced. It is so well settled in law that it requires no reference to any decided case for the proposition that a foundation must first be laid for the reception of secondary evidence and no secondary evidence of a document is permissible unless the conditions mentioned in Section 65 are satisfied. The sale deed dt. 28-9-1934 which is a source of title of the plaintiffs vendor is an important document to establish the plaintiffs title as the plaintiffs vendor would have no title to convey, but for the sale deed of the year 1934. Where a person relying on a document is unable to bring the original thereof before the Court, the Court is competent to admit secondary evidence for the purpose of having the contents of the original document proved, only when non-production of the original is satisfactorily accounted for.
From the evidence on record we do not find that the plaintiff has adduced any evidence explaining the reasons for non-production of the original sale deed, even though objection was taken to its admissibility at the time when the certified copy of the sale deed was sought to be introduced in evidence. The certified copy of the sale deed was tendered in evidence through 15 Dr.GRR, J ccca_16_2020 PW.1 and in the deposition recorded, the certified copy of the sale deed is mentioned to have been marked as Ext. 1 with objection. It was improper on the part of the Court not to make a note thereof in the order-sheet of the date on which the document was so admitted in evidence and not to decide the objection at all which it was expected to do either immediately thereafter or at least at the close of the evidence. It further appears that the contesting defendant did not press their objection against the admissibility of Ext.1 for which there is no mention about the same in the impugned judgment. That apart, from the evidence of PW.1 we do not find any statement which will prove the contents of the original the certified copy of which was sought to be proved. When a certified copy is allowed to be produced under Section 65, Evidence Act, there is no presumption as to the genuineness or the execution of the original and the Court should not admit a document merely on the ground that it is a certified copy of the original, unless the execution of the original is proved or admitted by the persons against whom the same is to be relied on. The admission of Ext. 1 in evidence without laying the foundation for reception of secondary evidence and without proof of the contents of the original by proving its execution was improper specially when the objection raised about its admissibility was never decided by the Court."

19. The contention of the learned counsel for the appellant - defendant was that a gift deed is a private document and a certified copy of the same cannot be admitted in evidence unless a foundation is laid for the reception of secondary evidence. But on a perusal of the judgment of the High Court of Madhya Pradesh in the above referred case, it made a distinction between the certified copies issued by the Registration Officer of a public document under Section 16 Dr.GRR, J ccca_16_2020 65(e) and production of certified copy as secondary evidence of a private document under clauses (a), (b) and (c) of Section 65 and stated thus:

"....17. The position therefore is that a certified copy of a sale deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is Entries in Book 1 maintained under Section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that a document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and
(iii) that the document was thereafter registered in the Registration Office and entered (copied) in Book 1. It is not however proof of the fact that original sale deed was duly executed by the actual person described as Executant. Production of a certified copy of a public document under Section 65(e) or production of a certified copy under Section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for eg, a sale deed under clauses (a), (b) and (c) of Section 65.

18. Proving execution of a registered sale deed (or any other registered document which is not required by law to be attested) has two steps.

The first step is production of the original sale deed or lay the foundation for letting in secondary evidence of the sale deed, by way of certified copy of the sale deed, by showing the existence of any of the circumstances mentioned in clauses (a), (b) and (c) of Section 65. In other words, a certified copy can be offered as secondary evidence of the original sale deed under Clause (a) of Section 65, by establishing that the original is in the possession or power of the person against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the 17 Dr.GRR, J ccca_16_2020 process of the Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of notice under Section 66 of the Act. A certified copy of the sale deed can also be offered as secondary evidence under Clause (c) of Section 65, by showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time). Lastly a certified copy can be offered as secondary evidence under Clause (b) of Section 65, where the existence, condition or contents of the document has been admitted in writing by the person against whom it is proved or by his representative in interest, and such admission is proved.

20. Section 65 of the Indian Evidence Act, 1872 speaks of cases in which secondary evidence relating to documents may be given. It reads as follows:

65. Cases in which secondary evidence relating to documents may be given.--

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--

(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising 18 Dr.GRR, J ccca_16_2020 from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

21. Thus, though the certified copies of the gift deeds and sale deeds are private documents, when they are issued by the Registration Officer under the Registration Act, they are public records of private documents entered in Book I and their production and marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be proceeded by laying of any foundation for acceptance of secondary evidence. 19

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22. The High Court of Rajasthan in Manita Tak and Others v. Ram Gopal Tanwar and Others in S.B. Civil Writ Petition No.5019 of 2017 relied by the learned counsel for the appellant held that:

"....24.In view of the aforesaid analysis I am of the considered opinion that while a sale deed perse is a private document but once it is registered and entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records thereof maintained by such Registering Officer is a public document as defined by Section 74 of the Evidence Act and, therefore, a certified copy of the same can be given as secondary evidence of the existence, condition or contents of the same.
25. .......If Section 57(5) of the Registration Act is read with Section 65(f) and 76 of the Evidence Act it becomes clear that a certified copy of the sale deed or lease deed which is compulsorily required to be registered and entered in the books and indexes maintained under the Registration Act, issued under the sign and seal of the registering officer, is permitted by the aforesaid section, i.e. Section 57(5) of the Registration Act and Section 65(f) of the Evidence Act, to be given in evidence of the contents of the document apart from and in addition to the fact that certified copies of public documents can also be given in evidence under Section 65(e) of the Evidence Act. No doubt, a sale deed or lease deed is a private document, but once it is registered and entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records thereof maintained by such Registering Officer becomes a public document as defined by Section 74 of the Evidence Act and therefore, a certified copy of the same can be given as secondary evidence of the existence, condition or contents of the same."
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23. Thus, this Court does not find any merit in the contention of the learned counsel for the appellant that Exs.A1 to A5 are not proved in accordance with law as the original documents are not filed.

24. The learned counsel for the appellant contended that the defendant denied the ownership of his mother M.Muthamma in respect of schedule properties, the schedule properties were purchased by the father of the defendants from the family income and the sale consideration was paid by him but they were placed in the name of the mother as benami.

25. But admittedly, no suit was filed by the defendant challenging the said gift deeds. The earlier suit filed by the defendant vide O.S.No.4793 of 2003 was for perpetual injunction and the same was stated to be dismissed. The other suit filed by him was for partition vide O.S.No.562 of 2005 on the file of the VII Additional Senior Civil Judge, City Civil Court, Hyderabad and the same was withdrawn by him. The defendant failed to file any pleadings or judgment of the suit in O.S.No.4793 of 2003 and no reasons were mentioned by him for the withdrawal of the suit in O.S.No.562 of 2005. As such, no suit was filed by him challenging the gift settlement deeds executed by their mother M.Muthamma in favour of the plaintiffs.

26. The learned counsel for the appellants contended that PW.1 admitted in his cross-examination that he was examined in O.S.No.562 of 2005 and when 21 Dr.GRR, J ccca_16_2020 he was confronted with his chief and cross-examination in the said case, he admitted the same which was marked as Ex.B.1, PW.1 admitted that his father was the only earning member in his family and his mother used to manage the family affairs and that his father died in the year 1986. The said admissions would prove that the schedule properties were purchased by the father and were placed in the name of the mother as benami.

27. The learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in Gangamma and Others v. G. Nagarathnamma and Others3, on the aspect that:

"9. .... Section 14(1) of the Hindu Succession Act (hereinafter referred to as the Act) has a bearing on the issue. As the properties at item Nos. 1 & 2 are recorded in the name of the appellant, in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those properties. In the facts of this case discussed above it has to be accepted that those properties are not joint properties but the appellant is the sole owner of those properties.
10. The principle laid down in Section 14(1) of the said Act has been read by courts in a very comprehensive manner since the said Act overrides the old law on Stree Dhana in respect of properties possessed by female Hindu. In Eramma Vs. Veerupana and others [AIR 1966 SC 1879], Justice Ramaswami speaking for the Court held that Section 14(1) of the Act contemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will now become full owner by virtue of the said section. Such 3 (2009) 15 SCC 756 22 Dr.GRR, J ccca_16_2020 female Hindu will have all powers of disposition to make the estate heritable by their own heirs and not revertible to the heirs of the last male holder.
11. Again in the case of Punithavalli Ammal Vs. Minor Ramalingam and another [AIR 1970 SC 1730], a three- Judge Bench of this Court reiterated the position that the said Act has overriding effect and confers full ownership on Hindu female and made it very clear that rights conferred under Section 14(1) to a Hindu female are not restricted or limited by any rule of Hindu law. In the opinion of the Court in Punithavalli (supra) the said section makes a clear departure from all texts of Hindu laws and rules and those texts and rules cannot be used for circumventing the plain meaning of Section 14(1) of the said Act.
12. In Seth Badri Pershad Vs. Smt. Kanso Devi [AIR 1970 SC 1963], the learned Judges held that the word 'acquired' in sub-Section (1) of Section 14 of the said Act has to be given the widest possible meaning (See paras 6 & 7). In Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs.

[AIR 1977 SC 1944], Justice Bhagwati speaking for the Court held that sub-Section (1) of Section 14 is very large in its amplitude and covers every kind of acquisition of property by a female Hindu. Regardless of whether such property was possessed by a female Hindu on the date of commencement of the Act or was subsequently acquired or possessed, she would be the full owner of the property.

13. In view of such consistent views taken by this Court on the interpretation of Section 14, we hold that Section 14(1) of the said Act would apply in respect of the properties which stand in the name of the appellant and the appellant would be the full owner of those properties."

28. The mother of the plaintiffs and defendant by name M.Muthamma was the sole owner of the suit schedule items 1 and 2 properties as the sale deeds 23 Dr.GRR, J ccca_16_2020 were executed in her name. She was having an absolute right over the said properties with all powers of disposition.

29. The learned counsel for the respondents also relied upon the judgment of the Hon'ble Apex Court in Mangathai Ammal (Died) through LRs and Others v. Rajeswari and Others4, on the aspect that the burden of proving a transaction as benami would lie on the person alleging it to be so. The Hon'ble Apex Court had laid down the governing principles to determine a benami transaction as:

"The six (06) circumstances that can be taken as a guide to determine the said issue are:
(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."

30. The defendant though contended that the suit schedule items 1 and 2 properties standing in the name of his mother were benami, failed to adduce any evidence to prove the same. The defendant failed to step into the witness box and failed to prove his contentions. His father during his lifetime had never 4 (2020) 17 SCC 496 24 Dr.GRR, J ccca_16_2020 claimed the properties as those of him. The defendant had also never challenged the said documents as benami during the lifetime of his mother.

31. The learned counsel for the appellant contended about the mental status of the mother and submitted that in O.S.No.562 of 2005, the appellant as a plaintiff filed a petition to examine the mother as a witness and an Advocate Commissioner was appointed and relied upon the Commissioner's report marked as Ex.B3, wherein, the Commissioner noted that he visited the house of the defendant where the mother of the plaintiffs and the defendant was residing on 14.01.2009. The learned counsel for the plaintiff (the appellant - defendant herein) intended to lead the evidence of the witness, but she was not responding to the words of the plaintiff. He also asked so many questions but she was not giving any answers to them. The witness could not sit for a single minute and she was showing in action that she could not understand the questions what he was asking. The Commissioner stated that he stayed for an hour but she was sleeping and sometimes the witness stared at him. He also noted in his report that the witness Smt. M.Muthamma was lying down on a cot. He along with the counsel for plaintiff and the counsel for the defendant went near the cot and called the witness by name, Muthamma. She opened her eyes, watched them and again closed her eyes. When she and the advocate on record were discussing, the witness was watching them by seeing them. But when he called her, she closed her eyes again. He called her 5 to 6 times, then she opened her 25 Dr.GRR, J ccca_16_2020 eyes and doing 'Namaste' but showing her ears and mouth not to ask anything. The Commissioner opined that the witness did not want to give the evidence and came to the conclusion that she could understand everything but bluntly refusing to give the evidence. As such, he closed the commission.

32. This report of the Commissioner was in November, 2009 but the gift deeds marked under Exs.A2 to A5 were pertaining to the year 2003. Thus, there is a time gap of six (06) years between the execution of gift deeds and attempt to record her evidence by the Advocate Commissioner. The mental status of the executant during the year 2003 cannot be presumed by the Advocate Commissioner's report, which was recorded six (06) years later.

33. The learned counsel for the appellant relied upon the admission made by PW.1 in his evidence that he deposed earlier that on 19.03.2010 in Ex.B1, that his mother was suffering from ailment for the past 15 years, she was not able to walk, her eye-sight was also defective and her mental condition was also not stable and relied upon the judgment of the Hon'ble Apex Court in Thiru John v. The Returning Officer and Others5, wherein it was held that:

"...15. It is well settled that a party's admission as defined in Section 17 to 20 fulfilling the requirement of Section 21 Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the 5 AIR 1977 SCC 1724 26 Dr.GRR, J ccca_16_2020 maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established.""

34. It is also a fact that Smt.M.Muthamma appeared before the Registration Officer and the Registration Officer had taken no objection with regard to her mental condition and registered the document. A stray admission made by PW.1 in O.S.No.562 of 2005, which could be out of context cannot be considered as substantive evidence in this case as the evidence had to be read as a whole and not in bits and pieces. The witness might be answering with regard to the fitness of his mother to appear as a witness before the court in the said case, due to which an Advocate Commissioner was appointed. As such, this Court in not inclined to give much importance to the stray admission of PW.1 with regard to his mother's mental condition in view of the several registered gift deeds filed before this Court executed by the mother in favour of the plaintiffs on 15.10.2003 and on 26.11.2004 before different Sub-Registrars, none of them had taken an objection with regard to her mental status.

35. The other contention raised by the learned counsel for the appellant was that the issues were not properly framed. It is for the learned counsel representing the parties to go through the issues framed by the trial court and to lead evidence as per the issues basing on whom the burden lies. The same is not a point to be contended before the Appellate Court. They were having 27 Dr.GRR, J ccca_16_2020 ample opportunity to ask the Court to correct the issues during the course of trial or before the trial, which was not availed by them. As such, this Court does not find any merit on the said point.

36. The learned counsel for the appellant further contended that the suit was barred by limitation. He contended that the appellant - defendant was challenging the title of the mother since 1986, but the present suit was filed in the year 2013 i.e. after a lapse of 27 years, as such the suit was hopelessly barred by limitation. The present suit was filed for eviction of the appellant - defendant from the suit schedule property and a notice was issued by the plaintiffs asking the defendant to vacate the property on 26.07.2012. The trial court answered this point holding that the parties to the suit are siblings as such the possession of the defendant could not be said to be unlawful or at the same time could not be said to be lawful. Till the date of issuance of notice, the possession of the defendant would be deemed to be under the consent of the plaintiffs and the limitation would start only after issuance of the notice. As observed above, the defendant had not filed any suit challenging the title of the mother. The suit filed by him for partition raising the above contention was withdrawn by him. As such, this Court does not agree with the contention of the learned counsel for the appellant that the right to sue accrues to the plaintiffs since 1986 and that the suit is barred by limitation. As such, this Court does not find any illegality in the observation of the trial court on this aspect. 28

Dr.GRR, J ccca_16_2020

37. The learned counsel for the appellant contended that the appellant - defendant also claimed adverse possession and he is permitted to take inconsistent defences.

38. The learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in Annasaheb Bapusaheb Patil and Others v. Balwant @ Balasaheb Babusaheb Patil (dead) by LRs and Heirs and Others6, on the aspect that:

".....15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title cannot divest another of that tile by pretending that he had no title at all."

39. The defendant was contending that he was a co-sharer and as coparcener he was entitled to joint possession and enjoyment of the coparcenary property. When he was claiming the property as a coparcener, his possession cannot be considered as adverse to the other members of the family, as per the judgment of the Hon'ble Apex Court in the above case. As such, the contention of the defendant that he perfected his title by way of adverse possession has no merit. 6 (1995) 2 SCC 543 29 Dr.GRR, J ccca_16_2020 In view of the above discussion, this court is of opinion that the plaintiffs are entitled for recovery of possession of suit schedule items 1 and 2 properties from the defendant. Hence, Point No.1 is answered against the appellant - defendant.

Point No.2:

40. This Court does not find any material illegality or irregularity or impropriety in the judgment and decree of the trial court to set aside the same. As such, point No.2 is answered holding that the judgment of the trial court is sustainable as it is in accordance with the facts on record and law applicable to the said facts.

Point No.3

41. In the result, the CCCA is dismissed confirming the judgment dated 13.09.2019 passed in O.S.No.714 of 2013 by the IX Additional Chief Judge, City Civil Court, Hyderabad and the appellant - defendant is directed to vacate the suit schedule properties within two (02) months from the date of this judgment failing which the respondents - plaintiffs are directed to take possession through due process of law.

No order as to costs.

30

Dr.GRR, J ccca_16_2020 As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date: 26th June, 2023 Nsk.