Andhra HC (Pre-Telangana)
Bandarupalli Rama Murthy And Ors. vs Bandarupalli Padmavathi And Anr. on 31 March, 2006
Equivalent citations: 2006(4)ALD677
JUDGMENT P.S. Narayana, J.
1. Heard the Counsel.
2. The appellants herein are the Defendants 1 to 3 in O.S. No. 18 of 1995 on the file of the learned Subordinate Judge, Parchur.
3. The learned Judge, on appreciation of the evidence of P.W.I. D.Ws. 1 to 7 and also Exs.B. 1 to B. 49 and Ex.X. 1, ultimately, decreed the suit so far as half share of the plaintiff is concerned in the plaint A Schedule property.
4. The learned Judge, while answering Issue No. 2, came to the conclusion that the life estate of the 2nd defendant got enlarged and she became the absolute owner of the Plaint B Schedule immovable properties. But, however, conflicting findings had been recorded while answering Issue No. 3.
5. Contentions of Sri M. Jagcmnadha Sarma: Sri M Jagannadha Sarma, the learned Counsel representing the appellants-defendants had taken this Court through the findings recorded and would contend that in the facts and circumstances of the case, the findings recorded in relation to Ex.B. 38 cannot be sustained especially in the light of the conflicting findings recorded while answering Issues 2 and 3. The learned Counsel also pointed out two other aspects and would contend that the appeal is liable to allowed.
6. Contentions of Sri G. Pedababu: Per contra, the learned Counsel representing the 1st respondent-plaintiff would contend that in the light of the findings which had been recorded by the learned Judge in detail, the said findings need not be disturbed. In all other aspects, the learned Counsel would maintain that having held that the life interest of the 2nd respondent got enlarged while answering Issue No. 2, the findings recorded on Issue No. 3 would become unnecessary.
7. Heard both the Counsel and perused the material available on record.
8. Points for consideration in this appeal: In the light of the rival contentions, the following points arise for consideration in this appeal.
1. Whether the findings recorded by the learned Judge granting half share to the plaintiff in A Schedule property to be disturbed or to be confirmed in the facts and circumstances of the case?
2. Whether the findings recorded by the learned Judge while answering Issue No. 3 to be confirmed or to be disturbed in the facts and circumstances of the case?
3. If so, to what relief the parties would be entitled to?
9. Heard the learned Counsel on record and perused the oral and documentary evidence.
10. Points 1 and 2; The parties hereinafter would be referred to as plaintiff and defendants as arrayed in the suit. The plaintiff filed a suit for partition of her half share in the plaint Schedule properties and also prayed for declaration that the plaintiff is entitled to half share for the vested remainder of plaint B Schedule property after the lifetime of 2nd defendant and for ascertainment of the mesne profits. It was pleaded in the plaint as hereunder:
1st defendant is the son and 2nd defendant is the widow of Bandarupalli Venkatappaiah of Yeddanapudi Village. The 1st defendant and his father were members of Hindu joint family and the 4th defendant is the wife of 1st defendant and the 3rd defendant is the daughter of 2nd defendant and Venkatappaiah. She was married to N. Rama Mohana Rao in the year 1966 and the 2nd defendant and Venkatappaiah have another daughter by name Leelavathi who was also married.
The jointly family consisting of Venkatappaiah and his son 1st defendant had valuable movable and immovable properties besides cash due to Misunderstandings between the father and son Defendants 1, 2 and Venkatappaiah resolved to partition the joint family properties. All the properties held by then were almost the ancestral joint family properties. The 1st defendant was unmarried by then and his marriage expenses would have to borne by the joint family. The marriages of the two daughters are performed even before 1966. Valuable movable and immovable properties of the joint family were also given to the daughters besides some cash. The mediators suggested an arrangement and the same is voluntarily agreed by Defendants 1, 2 and late Venkatappaiah. As per the arrangement some immovable properties of the joint family allotted to Venkatappaiah and 2nd defendant in which Venkatappaiah and 2nd defendant should have life interest only without any power of alienations and after the death of Venkatappaiah and 2nd defendant the property should go towards 1st defendant's share. The rest of the immovable properties were allotted to the 1st defendant's share. The movables and cash were divided and allotted to each and it was also provided under the arrangement that the marriage expenses of the 1st defendant should be borne by the 1st defendant himself. The first defendant was given towards his share the vested remainder also in the rest of the immovable properties. In terms of registered partition deed was executed between the Defendants 1, 2 and late Venkatappaiah. The properties shown in the A Schedule of the partition deed. The properties of the first defendant were specified in the B Schedule of the same partition deed. The partition deed specifically provided as agreed to by both parties that Venkatappaiah and 2nd defendant should have life interest only in the said A Schedule properties and that the vested remainder in the said property should go to the share of first defendant. In the partition, the first defendant got towards his share the B Schedule property mentioned in the partition deed as well as the vested remainder in the A Schedule property also. The B Schedule property mentioned in the partition deed and the vested remainder in the property of the A Schedule of the sale deed had therefore become the family property of the first defendant by virtue of the family arrangement. After the above partition the first defendant married the fourth defendant. During their wedlock they begot a female child who is the plaintiff herein. The second defendant and one of her two daughters Leelavathi developed hatred and ill-will against the 4th defendant and they began to poison the mind of the first defendant. The first defendant began to ill-treat and harass the fourth defendant and the fourth defendant compelled tog out from her husband's family along with the plaintiff. The mediation efforts proved futile. He did not provide any maintenance and separate residence. The maternal grandfather of plaintiff filed a suit in Chirala Sub-Court in O.S. No. 50/76 for maintenance and marriage expenses. The plaintiffs mother also filed a suit in O.S. No. 80/77 in the same Court for her maintenance and separate residence. Both the suits were decreed on merits. By virtue of the newly added Section 29(a) of the Hindu Succession Act, plaintiff became a coparcener along with the 1st defendant herein with effect from 5-9-1985 and she became entitled to a half share in the entire family property of first defendant. The other items which the first defendant got with present interest in the partition abovementioned are specified in the plaint A Schedule enclosed herewith. The first defendant did not co-operate for division of plaint A Schedule property. The first defendant got to his share the vested remainder in the properties specified in the A Schedule of the said deed. The vested remainder the plaint B Schedule property had also become the coparcenery property between the plaintiff and the 1st defendant. Plaintiff is entitled to a half share in the plaint B Schedule property. Defendants 1 and 2 brought into existence a registered sale deed dated 10-3-1986 purporting to convey Items 1 to 3 of plaint 'B' Schedule to the 3rd defendant. The 1st defendant was to be paid a sum of Rs. 60,000/- and the 2nd defendant was to be paid a sum of Rs. 30,000/-.
A sum of Rs. 60,000/- payable to the first defendant was already paid in two installments and that for the sum of Rs. 30,000/- payable to the 2nd defendant a promissory note was executed in favour of the 2nd defendant by the third defendant. The contents of the said sale deed are all devoid of truth. The third defendant had no capacity to make such huge payments nor could she afford to purchase Items 1 to 3 of the plaint B Schedule. No amount was paid either to the first defendant or the 2nd defendant. No possession was delivered to the third defendant. The plaintiff became a coparcener, the Defendants 1 and 2 have no right to alienate the entirety of the said items. Items 1 to 3 were made the subject-matter of a sale deed in favour of the third defendant and notices passed between the parties. The B Schedule property became the absolute property of the 2nd defendant and that the alleged sale in favour of the third defendant is valid. In view thereof plaintiff is constrained to seek for a declaration of her right to a half share in the vested remainder in the plaint B Schedule property and to seek for partition and separate possession after the lifetime of 2nd defendant. A consequential relief of possession is also sought for in respect of plaint B Schedule property. The plaintiff is constrained to file this suit for partition and separate possession of plaint A Schedule properties and for declaration and consequential possession in respect of plaint B Schedule properties.
Fourth defendant who is the wife of first defendant is a maintenance holder under a Court decree and she is added as a necessary and proper party. The family of first defendant is not indebted to anyone and he has to get several amounts which he advanced as loans and the plaintiff also knows that there are bank deposits made by the first defendant. She is not able to know the names of the debtors and the quantum of amount lent to them. She is also not able to ascertain the amounts of deposits made by first defendant and plaintiff seeks for partition to add the outstandings in a separate schedule. Hence, the suit.
11. The defendants filed written statements resisting the same.
12. 1st defendant filed written statement with the following allegations:
the joint family consisted of 1st defendant and his father possessed valuable movable and immovable properties and cash and the landed property was given to Leelavathi and the elders arranged that Venkatappaiah and 2nd defendant should take property with life interest only without the power of alienation. The rest of the immovable properties were allotted to the first defendant and the movables and cash were divided and allotted to each. In the partition deed specifically provides life interest only in its A schedule property to Venkatappaiah and 2nd defendant. The 4th defendant left the house of the 1st defendant due to harassment made by the 1st defendant and filed the suits in O.S. No. 50/76 and O.S. No. 80/77 on the file of Sub-Court, Chirala. The amendment came into Hindu Succession Act the plaintiff is a coparcener along with 1st defendant since 5-9-1985. The plaintiff is entitled to a share in the plaint B Schedule property after the lifetime of 2nd defendant. The amendment of the Hindu Succession Act, the 2nd defendant and her daughters conspired with 1st defendant and decided to keep the landed property of plaint B schedule in the name of die 3rd defendant who is no other than the daughters of 2nd defendant. The 3rd defendant had no capacity to purchase Items 1 to 3 of plaint schedule and other plaint allegations are all false.
The first defendant further contended that his father effected partition during summer 1966 and took separate possession of their respective shares of property. Subsequently, 2nd defendant demanded for maintenance from out of the property of her husband. Venkatappaiah the father of the defendant later intended to convey vested remainder interest to this defendant in the immovable properties had by him to his share. To avoid incurring heavy expenditure by getting three registered documents evidencing earlier partition, provision of maintenance and gifting of vested remainder to this defendant and a registered deed was executed between this defendant, 2nd defendant and Venkatappaiah on 1-6-1996 incorporating all these arrangements. There was no right to have a share by the second defendant, she also joined as party executant to the said deed to show the settlement of her demand. The document would clearly show the intention of the father of this defendant also. The defendant is entitled for the vested remainder in B Schedule property of the plaint. It must be treated as separate and personal property of this defendant in which the plaintiff cannot lay a claim for partition.
This defendant sustained heavy loss during the year 1986-87. He was indebted to the tune of Rs. 30,000/- to various individuals on promissory notes. The 3rd defendant is a bona fide purchaser of Items 1 to 3 of B Schedule properties for valuable consideration. The said sale was made with the consent of the second defendant with a view to help the first defendant. An amount of Rs. 60,000/- out of sale consideration i.e., Rs. 20,000/- as advance and Rs. 40,000/- later was paid to the first defendant. A registered sale deed was executed on 10-3-1986 by defendants one and two in favour of the third defendant. On that day, a promissory note for Rs. 30,000/-was executed by the 3rd defendant in favour of the second defendant. An amount of Rs. 10,000/- was paid on 15-6-1986 and Anr. sum of Rs. 10,000/- was paid on 20-8-1987 and the balance of Rs. 17,460/- was paid on 17-8-1988. These payments were endorsed on the back of said promissory note. An amount of Rs. 37,460/- was utilized by her for her medical and other expenses. Thus, the third defendant is a bond fide purchaser for value without a notice of any claim of the plaintiff. Since the time of said sale, the third defendant is enjoying items one to three of plaint B Schedule property having put in possession of the same. The third defendant has no capacity to purchase the same. As per the provisions of the Hindu Succession Act, the second defendant became absolute owner of the plaint B Schedule property. The defendant has no outstandings. The second defendant is a cancer patient and underwent treatment at Madras in the year 1982. This defendant denied that there was family arrangement under which Venkatappaiah was asked to take immovable property with life interest by the time of partition. In fact immovable property which was falling to his share with absolute rights. By virtue of later arrangements he conferred life interest on Defendants 2 and 1 respectively. The plaintiff has no cause of action to file the suit. The plaintiff cannot be treated to be in joint possession of plaint A Schedule property with this defendant. The Court fee is paid incorrect. The suit lands are inferior quality. Hence prays to dismiss the suit with costs.
13. 2nd defendant filed adoption memo adopting the written statement of the 1st defendant.
14. 3rd defendant filed a written statement denying the allegations and pleadings as hereunder:
The defendant is not responsible for any disputes between the first defendant and 4th defendant or first defendant and the plaintiff. It is incorrect to state that this defendant has no capacity to purchase the property. The sale deed dated 10-3-1986 obtained by this defendant from Defendants 1 and 2 is for valuable consideration without any notice of claim by the plaintiff. This defendant paid an amount of Rs. 20,000/- as advance and Rs. 40,000/- on another occasion and executed a pronote on 10-3-1986 for the balance amount of Rs. 30,000/-. Subsequently this defendant made payments of Rs. 10,000/-on 15-6-1986, Rs. 10,000/- on 20-8-1987 and balance amount of Rs. 17,460/- was paid on 17-8-1988. These payments were duty endorsed on the back of the said pronote. This defendant is the bona fide purchaser of Items 1 to 3 of B Schedule for valuable consideration. Since the time of said purchase, this defendant is in possession and enjoyment of the said property without any obstruction from any corner. The plaintiff has no right to sue against this defendant in respect of the plaint B Schedule property. Hence prays to dismiss the suit with costs.
15. On the strength of these pleadings, the following issues were settled:
1. Whether the valuation of the relief of partition is incorrect?
2. Whether the 2nd defendant became absolute owner of the plaint B Schedule immovable properties?
3. Whether the 3rd defendant is a bona fide purchaser of Items 1 to 3 of plaint B Schedule for consideration?
4. Whether the plaintiff is entitled for partition and separate possession of half share in plaint A Schedule immovable properties?
5. Whether the plaintiff is entitled for the declaration sought in respect of plaint B Schedule immovable properties?
6. Whether the plaintiff is entitled for the consequential relief of possession of undivided half share in plaint B Schedule immovable properties after the lifetime of the 2nd defendant?
7. Whether the plaintiff is entitled for future mesne profits on her half share in plaint A Schedule immovable properties?
8. To what relief?
16. The learned Judge, on appreciation of the evidence of P.W.I, D.Ws. 1 to 7 and also Exs.B.l to B. 49 and Ex.X. 1, came to the conclusion that the plaintiff is entitled to the half share in the plaint A Schedule property. In the light of the relationship between the parties and also the provisions of Hindu Succession Act, 1956 and in the light of the categorical evidence of P.W. 1, the findings recorded by the learned Judge in this regard need not be disturbed. However, P.W.I not satisfied with the relief which has been prayed for to divide her share in the plaint A Schedule property claimed for a declaration that she is entitled to half share in the vested remainder of the plaint B Schedule property on the ground that 2nd defendant is only life interest holder. Issue No. 2 which had been already referred to supra to the extent that the 2nd defendant became the absolute owner of the plaint B Schedule immovable property, the learned Judge recorded positive finding and came to a conclusion that the life interest was enlarged and she became the absolute owner of the estate. Having held so, though it was unnecessary to decide the Issue No. 3, whether the 3rd defendant was the bona fide purchaser of the Item Nos. 1 to 3 plaint B Schedule property for consideration recorded certain findings while answering Issue No. 3. No doubt, the oral evidence available on record had been appreciated in detail and it was held that the document in question especially Exs.B. 38 and B. 39, these were held to be collusive documents. It is needless to say that when a positive finding had been recorded that life interest of the 2nd defendant became the absolute interest by operation of law, the question of further deciding Issue No. 3 will not arise. When the plaintiff has nothing to do with the plaint B Schedule property and the 2nd defendant became the absolute owner, the other findings could not have been recorded by the learned Judge while answering Issue No. 3. The approach adopted by the learned Judge in this regard appears to be in a way conflicting. Hence, it is made clear that all the findings recorded by the learned Judge, in relation to the Issue No. 3, shall be in the light of the findings recorded on Issue No. 2 and hence the said findings are hereby set aside.
17. Except to this limited extent, inasmuch as findings were recorded on appreciation of oral evidence D.Ws. 1 and 7 and also the documentary evidence of Exs.B. 1 to B. 49 and Ex.X. 1, the other findings are left undisturbed.
18. In the light of the findings recorded above, the findings recorded by the learned Judge, in relation to Issue No. 3, are hereby set aside and accordingly, the said findings would not be operative on the validity of the documents or otherwise except making this specific finding regarding what had been recorded on Issue No. 3, in all other respects, the findings are hereby confirmed.
19. Point No. 3: In the result, the appeal is dismissed without costs subject to the findings recorded above by setting aside the findings recorded by the learned Judge in relation to Issue No. 3. It is also brought to the notice of this Court that the decree was not properly drafted in accordance with judgment. It is needless to say that the decree to be drafted in accordance with judgment and hence, the same to be rectified in accordance with the judgment of the Court below in the event of the decree drafted to be not in accordance with the judgment.