Andhra Pradesh High Court - Amravati
Kadiyala Narayana vs Kadiyala Kesava Rao on 22 November, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Second Appeal No.578 of 2019
JUDGMENT:
The unsuccessful defendant filed this Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, assailing the decree and judgment, dated 15.04.2019, of the learned XI Additional District Judge, Tenali, passed in A.S.No.78 of 2015. 1.1 By the said decree and judgment, the learned Additional District Judge, Tenali, while dismissing the said first appeal, confirmed the decree & judgment, dated 03.09.2015, of the learned Principal Senior Civil Judge, Tenali, passed in O.S.No.185 of 2011, filed for partition of the plaint schedule properties into three equal shares by metes & bounds and according to good & bad qualities and allotting of one such separated share each to the plaintiffs 1 and 2 and defendant and for other reliefs.
2. I have heard the submissions of learned counsel appearing for the appellant/defendant ('defendant', for brevity) at the stage of admission. I have perused the material record.
3. The parties in the second appeal shall hereinafter be referred to as arrayed in the suit for convenience and clarity.
4. At the outset, it has to be noted that the following questions are raised in the grounds of appeal, as substantial questions of law:
1. Having held that late Pushpavathi, mother of plaintiffs and the defendant got absolute rights as per section 14(1) of the Hindu Succession Act, 1956 whether the courts below are justified in decreeing the suit of the respondents/plaintiffs, particularly when P.W.1 has admitted execution of Ex.B1-registered Will dated 14-11- 2003 in favour of the appellant/defendant?
2. When there is cogent, reliable and trustworthy evidence adduced by the defendant in proof of valid execution of Ex.B1-
Registerd Will, whether the Courts below are justified in not believing the same on the basis minor discrepancies in the evidence due to paucity of time?
3. When admittedly Ex.B2-Registered gift deed dated 01-11- 2010, was executed by the defendant in favour of his daughter 2 MSRM, J S.A.No.578 of 2019 namely Triveni and she was put in possession of ite of 1 of plaint schedule land whether the courts below are justified in decreeing the suit for partition filed by the plaintiffs without impleading the donee as party to the suit and without impugning the gift deed?
4. Whether the Courts below are justified in decreeing the suit without bringing the donee under Ex.B2-registered gift deed on record as the same is not executable?
5. Whether the courts below are justified in decreeing the suit of the respondents/plaintiffs without appreciating the oral and documentary evidence in proper perspective?
6. Whether the judgments of the trial Court and lower appellate Court are not perverse?
[Reproduced verbatim]
5. From the material record and submissions made, the following facts are discernable:
'The plaintiffs, who are the brothers of the defendant, instituted the suit for partition, as stated above. Their case is that item no.1 of the plaint schedule property was purchased by Kadiyala Lakshmaiah, their father, under Ex.A2-Registered sale deed, dated 06.02.1940, and that item no.2 of the plaint schedule property was inherited by him from his father and that their father died long time back, leaving behind the properties and that both the plaintiffs and the defendant executed Ex.A3 registered gift deed, dated 24.10.1985, in favour of their mother, K.Pushpavathi, conferring life interest on her favour, without power of alienation and retaining vested remainder rights in themselves. Their mother died, on 10.03.2004, as is evident from her death certificate, Ex.A1. The suit was laid for partition inter alia contending that the mother died intestate.'
6. The defence of the defendant is this: - 'Admittedly, the three sons executed Ex.A3 registered gift deed in favour of the mother in lieu of her maintenance, giving life interest and retaining vested remainder rights. In view of Section 14(1) of the Hindu Succession Act, the limited right enlarged into absolute right; and, the mother, during her life time, became absolute owner of the properties. She executed a Will, on 14.11.2003, under the original of Ex.B1, in a sound and disposing state of mind, bequeathing the properties to the defendant. As per the bequests under the said 3 MSRM, J S.A.No.578 of 2019 Will, the defendant became absolute owner of the said property, that is, item no.1 of the plaint schedule properties. He gifted the said property to his daughter, under registered gift deed, dated 01.11.2010. Therefore, the suit for partition insofar as the said item no.1 of the suit schedule property, is not maintainable and the suit is liable for dismissal for the said reasons and also for the reason of non-joinder of the daughter of the defendant, who is a necessary and proper party to the suit, as the property under the said gift deed, Ex.B2 was delivered to the daughter and she is in possession of the said property.'
7. During trial, plaintiffs are examined as PWs.1 and 2 and Exs.A1 to A3 were marked on their side. The defendant was examined as DW.1. DW.2 is said to be the attestor of the Ex.B1-Will and exhibit B2-Gift Deed. DWs.3 and 4 are the supporting witnesses of the defendant. Exhibits B1 and B2 were marked on the side of the defendant.
8. The trial Court framed the following issues for trial:
1. Whether the plaintiffs are entitled for partition of plaint schedule properties with separate possession as prayed for?
2. Whether the plaintiffs are entitled for future profits?
3. Whether the suit is bad for non-joinder of necessary party?
4. To what relief?
9. After hearing the submissions and considering the pleadings and oral & documentary evidence brought on record, the trial Court held all the issues in favour of the plaintiffs and preliminarily decreed the suit of the plaintiffs.
10. Aggrieved thereof, the defendant preferred first appeal in A.S.No.78 of 2015. The first appellate Court, which is also a fact finding Court and which is the last Court of fact, framed the following points for determination: 4
MSRM, J S.A.No.578 of 2019
1. Whether Kadiyala Pushpavathi is absolute owner of the suit property in pursuance of Ex.A3 registered gift deed, dt.24.10.1985?
2. Whether the Will in Ex.B1, dt.14-11-2003 is true, valid and binding on the plaintiffs?
3. Whether the decree and judgment passed by the learned Principal Senior Civil Judge, Tenali in O.S.185/2011, dt.03-09-
2015 are liable to be set aside?
11. The first appellate Court, after having examined the facts, the grounds urged and the evidence, dismissed the first appeal of the defendant. Therefore, the defendant is before this Court.
12. As already noted, the defendant contends that the substantial questions of law, which are aforementioned, are involved. Therefore, submissions of the learned counsel for the defendant are heard on the limited aspect as to whether the aforestated substantial questions of law or any other substantial questions of law are involved and if so, whether the second appeal deserves admission.
13. Learned counsel for the appellant/defendant contended as follows:
'The legal position that the limited right of a widow enlarges into absolute right, when the right in the property is conferred on her in lieu of maintenance is undisputed. Therefore, in view of the admitted fact that the brothers executed a gift deed conferring limited rights on the mother and that the said right enlarged into absolute right, the plaintiffs cannot dispute the fact that the mother became the absolute owner of item No.1 of the plaint schedule property. The defendant pleaded that the mother executed a Will-Ex.B1 bequeathing the property to him and examined not only himself but also the attestor of the said Will and proved the said Will to show that he became the absolute owner. However, both the Courts below erroneously disbelieved the said Will and wrongly decreed the suit of the plaintiffs.'
14. Having regard to the submissions, I have examined the evidence brought on record. Both the Courts below elaborately considered the oral evidence related to 5 MSRM, J S.A.No.578 of 2019 Ex.B1- Will said to have been executed by the mother of the parties and came to conclusion that the Will is not proved as required under the provisions of the Indian Succession Act and the Indian Evidence Act and that the defendant also failed to remove the suspicious circumstances surrounding the Will and, therefore, the Will is not proved. Accordingly, both the Courts concurrently held that the Will relied upon by the defendant is not genuine. Having gone through the copies of the deposition, which are filed along with the material papers, this Court does not find any infirmity in appreciation of evidence and the findings recorded by the Courts below warranting interference.
15. In the absence of the said Will, it follows that the mother, who is the absolute owner of item No.1 of the plaint schedule property died intestate and that the said property devolved upon her legal heirs by intestate succession. The properties originally belonged to the father is not in dispute. Therefore, the three brothers are entitled to 1/3rd share each in the plaint schedule properties cannot be disputed by the defendant, in the light of the findings recorded by the Courts below concurrently.
16. Coming to the next contention that the daughter of the defendant, in whose favour the defendant executed Ex.B2 - Gift Deed, is a necessary and proper party and that since the possession of item no.1 of the plaint schedule property is delivered to her, the suit is liable for dismissal for not impleading her, though she is a necessary and proper party, the case of the plaintiffs is that in the absence of a Will, the defendant does not get absolute right, title and interest over the property covered by the gift deed and, therefore, he cannot convey any excusive right, title and interest in the properly gifted to her under Ex.B2, and that the daughter of the defendant did not get any valid right, title and interest over any of the suit properties or any part thereof pursuant to Ex.B2 - Gift Deed. Further, the daughter of the defendant is claiming the property only through the defendant. The first appellate Court adverted to this aspect of the matter, in detail. Be it noted that the Courts below concurrently found that the Ex.B1 Will said to have been executed by the mother is not genuine 6 MSRM, J S.A.No.578 of 2019 and that the defendant is not having exclusive rights over the property said to have been gifted to his daughter and that Ex.B2 Gift Deed is not valid and binding on the plaintiffs. In view of the fact that the Will is found to be not genuine, her gift deed, as a sequel must be held to be not valid and not binding on the plaintiffs in so far as their shares are concerned. At best, the gift deed would be valid to the extent of the share of the defendant in the plaint schedule properties. Therefore, in that view of the matter, the suit, in the considered view of this Court, is not bad for non-joinder of the daughter of the defendant.
17. On the above analysis this Court finds that the questions being sought to be raised are not substantial questions of law and that the said questions are not even pure questions of law; but, are either only mixed questions of fact & law or pure questions of fact. Therefore, this Court further finds that no question of law much less a substantial question of law is involved requiring interference with the decree & judgment impugned. Accordingly, this Court holds that there is no substance in the questions being sought to be raised. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratios in the decisions in Gurudev Kaur v. Kaki1and Dagadabai (dead) by LRs. v. Abbas Alias Gulab Rustum Pinjari2.
18. In the case on hand, after careful examination of the pleadings, evidence and the contentions, as this Court finds that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of the narrow compass of Section 100 of the Code of Civil Procedure.
19. In the result, the Second Appeal is dismissed confirming the judgment & decree, dated 15.04.2019, of the learned XI Additional District Judge, Tenali, passed in A.S.No.78 of 2015.
1 AIR 2006 SC 1975 2 (2017) 13 SCC 705 7 MSRM, J S.A.No.578 of 2019 There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_____________________ M. SEETHARAMA MURTI, J Date: 22.11.2019 Pab 8 MSRM, J S.A.No.578 of 2019 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Second Appeal No.578 of 2019 22.11.2019 Pab