Andhra HC (Pre-Telangana)
Dated 22-07-2013 vs Sri Aaleti Srinivas
Bench: L.Narasimha Reddy, S.V.Bhatt
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE S.V.BHATT
C.C.C.A.Nos.328 of 2006 and batch
Dated 22-07-2013
Sri Aaleti Srinivas ..Appellant.
Aaleti Dayakar and another...Respondents.
Counsel for the appellant:Sri G.Vidyasagar
Counsel for respondents : Sri K.M.Mahender Reddy
<GIST:
>HEAD NOTE:
?Cases referred
1. (2007) 13 SCC 210
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE S.V.BHATT
C.C.C.A.Nos.328 of 2006 and 2 of 2007
COMMON JUDGMENT:(Per the Hon'ble Sri Justice L.Narasimha Reddy) These two appeals are between the same parties in relation to the same item of property. Hence, they are disposed of through a common judgment.
For the sake of convenience, the parties herein are referred to as arrayed in C.C.C.A.No.2 of 2007.
The 2nd respondent is the mother of the appellant and the 1st respondent. The appellant filed O.S.No.191 of 2003 in the Court of XII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, for cancellation of gift settlement deed, dated 20.01.2003, executed by the 1st respondent in favour of the 2nd respondent, transferee of the suit schedule property - a house constructed in an area of 171 square yards situated at Kachiguda, Hyderabad, and for the relief of perpetual injunction to restrain the respondents/defendants from dispossessing the appellant. The 2nd respondent, in turn, filed O.S.No.2875 of 2004 in the same Court, against the appellant, for the relief of recovery of possession of that very property and for damages of Rs.60,000/- for use and occupation of the said premises.
The appellant stated that their father died when himself and the 2nd respondent were at very young age, and he learnt the skills of turner on lathe machine, and started working in a private firm at relatively younger age. He stated that he obtained the licence to drive light motor vehicles, whereas the 2nd respondent passed S.S.C., and thereafter went to Dubai. The family is said to be the tenants in respect of the suit schedule property owned by Mr.Panjala Yadaiah. The appellant pleaded that himself and the 2nd respondent contributed equal amounts, and purchased the same in January, 1993 and the sale deed was obtained in the name of their mother, the 1st respondent. According to him, the 2nd respondent was not even in India, when the sale deed was executed.
The further case of the appellant is that the old house that was existed in the premises was demolished and contribution was made by himself and the 2nd respondent for construction of a new house with ground and first floors, after obtaining permission of the Municipal Corporation and that he is residing with his family in the ground floor. It was also stated that the appellant got married in August, 1997, soon after the new house was constructed, whereas the 2nd respondent got married in the year 2000.
It was pleaded that the appellant has also gone to Dubai for working and when he returned to India in March, 2003, his mother-
1st respondent asked him to vacate the premises and shift to a rented house and three months thereafter, he received a notice from the 2nd respondent requiring him to vacate the premises. On verification, he is said to have come to know that the 1st respondent executed the gift deed, dated 20.01.2003 in favour of the 2nd respondent and on that basis, the 2nd respondent was requiring him to vacate the premises.
Stating, inter alia, that the property was owned jointly by himself and the 2nd respondent and that the 1st respondent has no right to execute the gift deed in favour of the 2nd respondent, the plaintiff prayed for the relief of cancellation of the gift deed and for the relief of perpetual injunction.
Written statement in the suit was filed by the 1st respondent i.e. mother. She stated that the house was, in fact, purchased by her second son - 2nd respondent, and it is only out of love and affection towards her, that the sale deed was executed in her favour. It is also pleaded that the appellant was not work minded and the 2nd respondent, arranged for his employment abroad, and despite that, the appellant used to come back to India frequently. She stated that the house was purchased at a time when the 2nd respondent was in abroad, and the new house was constructed with the money sent by him. She further stated that though the appellant supervised the construction, he was paid salary of Rs.10,000/-, per month. According to her, the gift deed was executed by her out of free will and affection towards the 2nd respondent.
The 2nd respondent adopted the written statement filed by the 1st respondent.
The contents of the written statement in O.S.No.191 of 2003, virtually constituted the averments in the plaint in O.S.No.2875 of 2004 and those in the paint in O.S.No.191 of 2003 were repeated in the written statement filed in the other suit.
Through its common judgment, dated 07.11.2006, the trial Court dismissed O.S.No.191 of 2003 and decreed O.S.No.2875 of 2004. Hence, these two appeals.
Sri G.Vidya Sagar, learned counsel for the appellant, submits that the execution of gift deed by the 1st respondent was totally untenable, when even according to her, the property was not purchased by her. He contends that the appellant had to face serious difficulties, on account of the death of his father, when he was a child and he had to undertake arduous duties in workshop or of motor driving to support the family. He submits that the 2nd respondent went abroad first to earn livelihood, and thereafter, the appellant has also proceeded. He contends that the family was the tenant in respect of the premises and once both the brothers started earning, they purchased the house for a sum of about Rs.3,00,000/- from the owner and got the sale deed registered in favour of their mother, to avoid any complications. He further submits that the new house in the place of old one was also constructed with their contributions, and that both, when the property was purchased and the house was constructed, the appellant had to live in India.
Learned counsel submits that it was only after the 2nd respondent got married, in the year 2000, that his thinking changed and managed to get the gift deed executed in his favour in the year 2000. Learned counsel further submits that the sinister motive on the part of the 2nd respondent is evident from the fact that he brought into existence a fictitious sale deed Ex.B.4 for an extent of 13 square yards, few days before the gift settlement deed, Ex.A.2 equivalent to Ex.B.5 was brought into existence. He contends that on the one hand, 1st respondent pleaded that the property was purchased exclusively by the 2nd respondent, and on the other hand, she has gifted the property to the same person. He submits that no reference was made to the so-called gift deed in the notice got issued by the 2nd respondent.
Sri G. Vidyasagar further submits that if one takes into account, the extents mentioned in Ex.A.1, original sale deed, and Ex.A.2, the gift settlement deed, on the one hand, and in Ex.B.6 on the other hand, it would clearly emerge that the respondents tried to manipulate records to bring about a fraudulent transaction. According to him, the trial Court did not appreciate the evidence in the correct perspective, and that O.S.No.191 of 2003 deserves to be decreed.
Sri K.M.Mahender Reddy, learned counsel for the respondents, on the other hand, submits that the appellant was addicted to bad habits and the burden to sustain the family even to get the employment, of the appellant fell upon the 2nd respondent. He contends that once the sale deed was executed in favour of the 1st respondent, she became the absolute owner and that she has every right to dispose of the property, in the manner, she wishes. He contends that Ex.A.6 had to be executed, in view of the fact that a small extent of land remained un- transferred, though the consideration was paid in the year 1993 itself. Learned counsel submits that the decree passed by the trial Court do not suffer from legal or factual infirmity.
On the basis of the pleadings before it, the trial Court framed the following issues for its consideration:
O.S.No.191 of 2003i) "Whether the gift deed dated 20.01.2013 is collusive, fraudulent and not binding?
ii) Whether the suit schedule property is joint family property wherein plaintiff has no share?
iii) Whether the plaintiff is entitled for partition and half share to the plaintiff?
iv) Whether the plaintiff is entitled to a permanent injunction restraining defendant from dispossessing the plaintiff and his family members from the suit house?O.S.No.2875 of 2004
i) Whether the suit property is acquired with the earnings of the plaintiff?
ii) Whether the plaintiff is entitled for the recovery of possession of suit property from the defendant?
iii) Whether the defendant is liable to pay the damages as prayed for?
iv) Whether the defendant contributed financially for the purchase of the suit property?
v) Whether this suit is filed as a counter blast to O.S.No.191 of 2003 on the file of the Chief Judge, City Civil Court, Hyderabad?"
Common evidence was recorded in both the suits. On behalf of the appellant, PWs.1 to 3 were examined and Exs.A.1 to A.9 were filed. On behalf of the respondents, PWs.1 to 3 were examined and Exs.B.1 to B.15 were filed. While O.S.No.191 of 2003 was dismissed, the other suit was decreed.
In view of the contentions advanced before us, the following points arise for consideration in these appeals:
i) Whether the purchase of the suit schedule property was by the 1st respondent or the 2nd respondent, or by the appellant and the 2nd respondent?
ii) Whether the 1st appellant has the legal capacity to execute the gift deed in favour of the 2nd respondent?
iii) Whether the 1st appellant made out a case for cancellation of the gift deed?
iv) Whether the respondent is entitled for a decree of partition of the suit schedule property?
Point No.(i):
The appellant and the 2nd respondent are the sons of the 1st respondent. In addition to them, she had three daughters, who are elder to the appellant. After the performance of marriages of three daughters, the husband of the 1st respondent died, when the appellant and the 2nd respondent were young in age. The appellant stated that he could not concentrate on studies and learnt the turner work on lathe machine and was employed in a private work shop and has also worked as driver. The 2nd respondent, on the other hand, passed S.S.C. and shortly thereafter, went abroad for employment. The entire family was residing in the suit schedule property as tenants. The suit schedule property was purchased through Ex.A.1-sale deed, dated 06.01.1993, in the name of the 1st respondent.
A new house, comprising of ground and first floors, was constructed in the place of old one, after obtaining permission from the Municipal Corporation. There is no serious dispute about these facts. The dispute between the two brothers is about the title to the property. The mother sided with her second son i.e. the 2nd respondent herein.
The appellant also worked in Dubai for quite a considerable time. He states that after he came to India in March, 2003, the 1st respondent required him to vacate the ground floor and to stay in any other rental premises. That was followed by a notice - Ex.A.3, wherein he claimed exclusive ownership of the premises and required the appellant to vacate. It is important to note that the 2nd respondent did not make any mention about the source of title. On verification, the appellant came to know that the 1st respondent executed Ex.A.2, the gift deed, in favour of the 2nd respondent. Soon thereafter, he filed the suit.
The written statement was filed by the 1st respondent alone. She alleged that the appellant was almost an indisciplined person and it is the 2nd respondent, who arranged not only for his employment, but also his marriage, despite being younger in age. The manner in which the suit schedule property came to be acquired was stated by the 1st respondent as under:
"In the year 1993, the defendant No.2 by investing from his savings has acquired the suit premises bearing No.3-3-164, 3-3-165 and 3-3-166 admeasuring 171 square yards situated at Kutbiguda, Hyderabad, with its existing old tiled structure for a consideration of Rs.1,27,000/- (Rupees One Lakh Twenty Seven Thousand only) from its earlier owner Yadaiah and obtained registered conveyance deed in the name of this defendant. The defendant No.2 has basically acquired the suit property for comfortable living of this defendant."
The manner in which the new house was constructed in the place of old one was stated by her as under:
"All the funds required for construction of the house have been provided by the defendant No.2 from his said account by sending cheques drawn on the said account to Sri P.V.Srinivas, i.e., the second son-in-law of this defendant who always acted as an elderly person to the family of this defendant ever since his marriage with the second daughter of this defendant. The defendant No.2 having confidence in his said brother-in-law, used to arrange the money by way of cheques into his savings bank account bearing No.1667 of State Bank of Hyderabad, BHEL, Ramachandrapuram Branch. The said Sri P.V.Srinivas i.e. second son-in-law of this defendant used to utilize the funds so arranged by defendant No.2 for the construction of new premises i.e. the present existing premises in the suit schedule property. The entire suit property has been constructed from the funds provided by the defendant No.2 through the said son-in-law of this defendant i.e. Sri P.V. Srinivas. The plaintiff was only made to supervise the construction and he was suitably rewarded with monthly remuneration of Rs.10,000/- (Rupees Ten Thousand only) regularly. After completion of the suit premises, the defendant No.2 has also arranged for marriage of the plaintiff with a fond hope that after the marriage the plaintiff would turn to good."
The circumstances under the gift deed was executed in favour of the 2nd respondent are; in the words of the 1st respondent:
"The suit property is in fact a self-acquired property of defendant No.2 and it was nominally acquired in my name by him. Therefore, my conscience did not permit me to hold the same in my name and as such I transferred and conveyed the same in the name of defendant No.2 by way of registered gift deed, as I hold my second son in high esteem for all that he has done for the family including the plaintiff."
The 2nd respondent, however, did not file any written statement of his own.
In his deposition, the appellant stated that the negotiation for purchase of the house was undertaken by him and the consideration for the house was contributed equally by himself and the 2nd respondent. He has also stated that the actual consideration was more than Rs.3 lakhs, though it was mentioned as Rs.1,47,000/- in the document. Nothing substantial was elicited from him to contradict his version. He denied the suggestion that he was only permitted to live in the premises and that he has no right in the house. A suggestion was made to the effect that his brother-in- law, Sri P.V.Srinivas, was looking after the entire family and the 2nd defendant was sending money to him. He stated that even in construction of the house, he made equal contribution. PW.2 is the father-in-law of the appellant and PW.3 is another distant relation. They spoke about the financial condition of the appellant and their evidence may not be of much use.
In the affidavit filed in lieu of chief-examination, the 1st respondent repeated the contentions of her written statement. According to her, the suit schedule property was purchased for a sum of Rs.1,27,000/- and not for Rs.3,00,000/-. She admitted that she has no evidence to show that the 2nd respondent was sending the amount to her son-in-law Sri P.V.Srinivas for construction of the house. The relevant portion reads as under:
"I have not filed any document to show that the defendant No.2 has been sending the money into the A/c of my son-in-law P.V.Srinivas for the purpose of construction in the suit premises."
She admitted that she does not know what was stated in the affidavit filed in lieu of chief-examination. She denied the suggestion that the appellant is having 50% share in the property. By reopening the evidence of DW.1, certain passbooks were marked as evidence. However, in the cross-examination, she stated that Exs.B.1 to B.3 do not show that amounts credited into the accounts, have been received from the 2nd respondent. She has also admitted that it cannot be said that any amounts have been withdrawn from those accounts.
The evidence in chief of DW.2, the 2nd respondent, is somewhat interesting. In the affidavit filed in lieu of chief-examination, it is stated that on coming to know that the owner of the premises was willing to sell the property in the year 1993, he expressed his desire to purchase the same through his mother and after negotiations, it was acquired by him for a consideration of Rs.1,47,000/-. According to him, the sale deed was obtained only for 158 square yards, in the name of his mother and as regards the balance of 13 square yards, the sale deed was executed, on 03.02.2003 in his favour. It is interesting to note that in Ex.B.6, it was mentioned that the 2nd respondent paid the entire consideration of Rs.1,47,000/-, i.e., the total consideration for 171 square yards and obtained sale deed for 158 square yards in the name of his mother in 1993, and that for the remaining extent of 13 square yards, the sale deed was executed in favour of the 2nd respondent. A perusal of the boundaries in Ex.A.2, the sale deed in favour of the 1st respondent, discloses that nowhere it is mentioned that there is any left over property of the vendor. Therefore, it emerges that Ex.B.6 is a fictitious document, brought into existence, only to provide some support for the theory that the consideration was paid by the 2nd respondent.
It is just un-understandable as to how the extent was reduced by 13 square yards in 1993, though the entire consideration was received and how a sale deed for that small strip is executed 20 years thereafter. No factor, that disabled the vendor at the initial stage, is pointed out. At any rate, if at all Ex.B.6 is to be treated as the continuation of the original transaction; the sale deed ought to have been in favour of the 1st respondent herself. The fact that it was executed in favour of the 2nd respondent discloses the duplicity of the entire theory with which the 2nd respondent wanted to justify the execution of gift deed in his favour. In the cross-examination, it was elicited that at the time of execution of the sale deed, the appellant was very much present.
DW.3 is the original owner of the property. He came forward with a version, which was not even spoken to by the respondents. The reason as to why the sale deed was executed only for 158 square yards in the year 1993, is as under:
"I submit that I am the original owner of suit property bearing premises No.3-3- 164, 3-3-165 and 3-3-166 total adm. 171 square yards. Plaintiff and Defendants family was my tenant in the said property. In the year 1993, having decided to dispose of my said property, put it for sale. Having learnt my intentions through his mother, Defendant No.2 came forward to purchase said property. After due deliberations, I have agreed to sell entire property to Defendant No.2 for a total sale consideration of Rs.1,47,000/-. Defendant No.2 paid entire consideration to me through his mother. As desired by Defendant No.2, initially I have executed Registered Sale deed on 06.01.1993 in the name of his mother Smt.Y.Yadamma in respect of property bearing No.3-3-164 and 3-3-166 adm. 158 sq.yards. I have conveyed balance property bearing premises No.3-3-165 adm.13 Sq.yards in the name of Defendant No.2 Sri Dayakar in the year 2003. I submit that entire consideration for acquiring said property is given by Defendant No.2. Subsequently, Defendant No.2 got reconstructed present structure in place of old structure sold by me. The suit property belongs to Defendant No.2."
In the cross-examination, the following was elicited from him:
"During the year 1993, I used to reside at Amberpet, which is situated 2 K.M. away to the suit schedule property. The sale transaction talks have taken place between me and the 2nd defendant in connection with suit property one day prior to the execution of the sale deed. The above said talks have taken place at my house. It is not true to suggest that the bargain was settled between me and the defendants for a sum of Rs.3,25,000/-, but not Rs.1,47,000/- as mentioned in my chief proof affidavit. It is not true to suggest that the sale transaction talks have taken between me and the plaintiff, but not the 2nd defendant. At the time of registration of the sale deed, myself, plaintiff and the 1st defendant were present at the Sub-Registrar's Office as well as the scribe and attestors. It is not true to suggest that after purchase of the property, the 2nd defendant did not construct the structures. It is not true to suggest that the plaintiff and the 2nd defendant equally paid the sale consideration of Rs.3,25,000/- to me, but not the 2nd defendant alone paid the consideration of Rs.1,47,000/- as agreed. I do not know whether it is mentioned in the sale deed that the purchasers paid Rs.1,27,000/-under the sale deed."
It is important to note that neither the 1st respondent, nor the 2nd respondent have stated in their evidence that the appellant was present at the time of registration of the document, whereas DW.2 admitted his presence. Equally important is that the 2nd respondent was not there. His plea that the 2nd respondent negotiated with him one day earlier is false, because the latter was at Dubai at that time. This is all about the oral evidence.
Nowhere in Ex.A.1, it is mentioned that the entire consideration was paid by the 2nd respondent. Ex.A.1 was executed on 06.01.1993. The extent mentioned in Ex.A.2, the sale deed, is only 158 square yards. However, in Ex.A.2-gift deed, the extent is mentioned as 171 square yards. It is important to note that the sale deed in favour of the 2nd respondent in respect of 13 square yards was executed i.e. Ex.B.6 on 03.02.2003 i.e about two weeks after the execution of Ex.A.2. This shows that the 2nd respondent resorted to several manipulations in his effort to deceive his elder brother, the appellant.
It is not uncommon that in a family, whenever contributions are made, by different members, sale deed is executed in the name of one of them or even an elderly member, so that no problem would arise, at the time of partition or division. It is in this manner that the suit schedule property came to be purchased in the name of the 1st respondent. However, she went to the extent of saying that the 2nd respondent was the absolute owner from the beginning. If that were to be so, she cannot be treated as owner. At the most, she is the ostensible owner, and the real owner is somebody else. Whether one goes by the tenor of the pleadings and depositions on behalf of the 1st respondent or the purport of the Benami Transactions Act, she cannot be treated as the absolute owner of the property. The admission on the part of the 1st respondent is that there is nothing to show that the consideration was paid by the 2nd respondents leads to the conclusion that he cannot be treated, even as the ostensible owner. The inescapable conclusion is that the property was purchased with the money equally contributed by the appellant and the 2nd respondent. Point No.(i) is accordingly answered.
Point No.(ii):
Once it emerges that the appellant and the 2nd respondent are the joint owners of the property, the 1st respondent, though is the person in whose name the sale deed is executed, did not have the capacity to execute the gift deed. The execution of a gift deed, that too, in favour of the 2nd respondent, runs contrary to her own evidence that the 2nd respondent is the absolute owner of the property from the beginning. Added to that, the execution of the deed for an extent of 171 sq.yards, though what is covered by Ex.A.1 is only 158 sq. yards, makes the transaction of gift, a fictitious one.
Point No.(iii) The discussion undertaken and the conclusions arrived at in point Nos. (i) and
(ii) indeed clothe the appellant with the right to seek the relief of setting aside Ex.A.2. Added to that, nowhere in the pleadings, the 2nd respondent stated that the gift was accepted by him. Though there is a recital in Ex.A.2 to the effect that the gift was accepted by the 2nd respondent, the manner thereof was not indicated. This becomes important, in view of the fact that he was not in India, when the gift deed was executed.
In Asokan v. Lakshmikutty1, relied upon by the learned counsel for the respondents, it was held that it is not necessary that acceptance must be in a particular form. Here the dispute is not about the form. In case the 2nd respondent stated that he accepted the gift, the Court cannot embark to ascertain the manner of acceptance, or to decide the effect thereof. When there is no plea that the gift was accepted, it has to be presumed that there was no acceptance in the eye of law. It is important to note that the 2nd respondent did not file any written statement of his own. The written statement of the 1st respondent can at the most vouch for the execution of the gift deed. Acceptance is something, which must be spoken to by the 2nd respondent. Having chosen not to file any written statement, the 2nd respondent did not even mention in his detailed affidavit filed in lieu of chief-examination that he has accepted the gift. It is too fundamental to reiterate that a gift becomes valid only when it is accepted by the donee. The net result is that the appellant made out a case for cancellation of the gift, both, on factual and legal grounds. The point is accordingly answered.
Point No.(iv) Once it is held that the suit schedule property was purchased with the money equally contributed by the appellant and the 2nd respondent, they are entitled for equal shares in it. The manner in which it must be divided, needs to be dealt with in the final decree proceedings. A preliminary decree deserves to be passed in the suit.
Hence, C.C.C.A.No.2 of 2007 is allowed and the decree passed by the trial Court dismissing O.S.No.191 of 2003 is set aside. The suit is decreed,
(a) setting aside Ex.A.2-gift deed executed by the 1st respondent in favour of the 2nd respondent, granting perpetual injunction restraining the respondents from interfering with the possession of the appellant over that part of the suit schedule property, in which he is living, and
(b) granting preliminary decree directing that the appellant, on the one hand, and the 2nd respondent, on the other hand, are entitled to equal shares in the suit schedule property.
C.C.C.A.No.328 of 2006 is allowed and the decree passed by the trial Court in O.S.No.2875 of 2004 is set aside.
The miscellaneous petitions filed in these appeals shall stand disposed of. There shall be no order as to costs.
____________________ L.NARASIMHA REDDY, J.
____________ S.V.BHATT, J.
Dated:22.07.2013