Andhra Pradesh High Court - Amravati
Gokarakonda Yasubabu vs Mudendla Nagamani on 28 October, 2024
APHC010383232019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE TWENTY EIGHTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 728/2019
Between:
Gokarakonda Yasubabu and Others ...APPELLANT(S)
AND
Mudendla Nagamani and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. DASARI S V V S V PRASAD
Counsel for the Respondent(S):
1. RAMAKRISHNA AKURATHI
2. CH VENKAT RAMAN
The Court made the following:
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.728 of 2019
Judgment:
This second appeal is filed aggrieved against the Judgment and decree
dated 20.10.2019 in A.S.No.3 of 2016, on the file of the X Additional District
Judge, Narsapur, confirming the Judgment and decree, dated 25.01.2016 in
O.S.No.177 of 2012, on the file of the Principal Junior Civil Judge, Narsapur.
2. The appellants herein are the defendant Nos.1 to 3 and 5 and the 1 st
respondent herein is the plaintiff and the 2nd respondent herein is the 4th
defendant in O.S.No.177 of 2012, on the file of the Principal Junior Civil
Judge, Narsapur.
3. The plaintiff initiated action in O.S.No.177 of 2012, on the file of the
Principal Junior Civil Judge, Narsapur, with a prayer to grant a decree of
partition of 1/5th share in the suit schedule property and for costs of the suit.
4. The learned Principal Junior Civil Judge, Narsapur, decreed the suit
with costs. Felt aggrieved of the same, the unsuccessful defendants in the
above said suit filed A.S.No.3 of 2016 before the learned X Additional District
Judge, Narsapur. The learned X Additional District Judge, Narsapur,
dismissed the first appeal by confirming the judgment and decree passed by
the trial Court. Aggrieved thereby, the unsuccessful defendant Nos.1 to 3 and
5/appellants approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.177 of 2012, is as follows:
(i) The father of plaintiff, Vibhishana Rao and mother Satyanarayana did
several business jointly, developed joint family by acquiring so many
properties in their joint names and individual names with ancestral and joint
family funds. The brother of plaintiff i.e., 1st defendant, sisters i.e., defendant
Nos.2 and 3, plaintiff and mother of defendant Nos.4 and 5 constituted a joint
Hindu family since all the them used to do joint business along with parents
and acquired some amounts as joint family members and also purchased
several properties.
(ii) At the time of marriage of plaintiff, defendant Nos.2, 3 and mother of
defendant Nos.4 and 5, the parents have not given any properties or amounts
to plaintiff and her sisters towards pasupu-kumkuma. The parents of plaintiff
always treated their properties as joint family properties and promised to
partition their properties equally. The father and mother of plaintiff died
intestate on 27.05.2012 and 17.03.2012 respectively. The 1 st defendant is
managing all the properties of joint family as kartha on behalf of the plaintiff,
defendant Nos.2 to 5 till April, 2012 by sharing income equally which was
derived. But, from May onwards, defendant Nos.1 to 5 are not properly
rendering accounts for the income derived on the plaint schedule property with
bad motive. The plaintiff demanded defendant Nos.1 to 5 to render accounts
and to allot her share through partition of plaint schedule property and other
properties into five equal shares by metes and bounds.
(iii) Prior to issuance of legal notice, dated 23.08.2012, the defendants
proclaimed that they would alienate schedule property to others. After receipt
of legal notice, defendants got issued reply with false averments. As per the
recitals of registered settlement deed, dated 25.06.1970, life interest was
given to Satyanarayana, but the vested remainder rights are given to children
of Satyanarayana. The defendants suppressed the registered settlement
deed, dated 25.06.1970 in their reply notice. Hence, the plaintiff constrained to
file the suit for partition.
7. The defendants filed written statement before the trial Court denying
the contents of plaint averments and further contended as follows:
(i) Whatever the properties that were acquired by Vibheeshana Rao are
his self-acquired properties. The properties stood in the name of
Satyanarayana are her self-acquired properties. The parents of plaintiff
executed registered Will, dated 13.07.2007 bequeathing their properties to
defendant Nos.4 and 5. The schedule property originally belongs to one
Kasturi Venkata Narasamma, who executed registered settlement deed, dated
25.06.1970, in favour of Gokarakonda Satyanarayana and as per recitals of
the said settlement deed, life interest was given to Satyanarayana and vested
remainder rights were given to children of Satyanarayana.
(ii) Subsequently, after the marriages of plaintiff, defendant Nos.2 and 3
and one Mudedla Varlakshmi, they relinquished their vested remainder rights
in schedule property in favour of Satyanarayana. Then the mother of plaintiff
became absolute owner of schedule property, she executed Will, dated
18.09.2011. After demise of said Gokarakonda Satyanarayana, the 1st
defendant became an absolute owner of schedule property by virtue of above
said Will and has been in possession and enjoyment of the same. As such,
the plaintiff has no right to demand partition of schedule property into five
equal shares.
(iii) The daughter of plaintiff, Kanchana was given in marriage to the 1st
defendant. Subsequently, Kanchana obtained divorce from 1st defendant by
filing Divorce Petition in H.M.O.P.No.106 of 2007, on the file of Senior Civil
Judge, Bhimavaram. Since then there are no talking terms between the
plaintiff and 1st defendant. The plaintiff bore grudge and filed the false suit.
The suit is barred by time. Therefore, the defendants requested to dismiss the
suit.
8. On the basis of above pleadings, the learned Principal Junior Civil
Judge, Narsapur, framed the following issues for trial:
(1) Whether the Will, dated 18.09.2011 executed by Gokarakonda
Satyanarayana is true and correct as alleged by the
defendants?
(2) Whether the suit is barred by time?
(3) Whether the plaintiff is entitled to the relief of partition of the
plaint schedule property as prayed for?
(4) Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for?
(5) To what relief ?
9. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 was examined and Exs.A-1 to A-5 were marked. On behalf of the
defendants, D.W.1 to D.W.7 were examined and Ex.B-1 was marked.
10. The learned Principal Junior Civil Judge, Narsapur, after conclusion
of trial, on hearing the arguments of both sides and on consideration of oral
and documentary evidence on record, allowed the suit without costs. Felt
aggrieved thereby, the unsuccessful defendants filed the appeal suit in
A.S.No.3 of 2016 before the learned X Additional District Judge, Narsapur,
wherein, the following points came up for consideration.
(1) Whether the plaintiff, defendant Nos.2, 3 and their sister
Mudedla Vara Lakshmi relinquished their vested remainder
rights in the schedule property as alleged by defendants?
(2) Whether mother of plaintiff and defendant Nos.1 to 3 i.e.,
Gokarakonda Satyanarayana was having right to execute
Will? If so, the Will, dated 13.07.2007 is true, valid and
binding on the plaintiff?
(3) Whether the plaintiff before the Trial Court has proved that
she is entitled to seek partition of the schedule property?
(4) Whether the findings given by the Trial Court are sustainable
and there are any grounds to interfere with the Judgment
and Decree of the Trial Court?
(5) To what relief?
11. The learned X Additional District Judge, Narsapur i.e., the first
appellate Judge, after hearing the arguments, answered the points, as above,
against the defendants/appellants and in favour of the plaintiff/respondent and
dismissed the appeal filed by the defendants. Felt aggrieved of the same, the
unsuccessful defendants in O.S.No.177 of 2012 filed the present second
appeal before this Court.
12. Heard Smt.K. Srilakhsmi, learned counsel, representing Sri Dasari
S.V.V.S.V. Prasad, learned counsel for the appellants and Sri Battula Sajaiah
Gandhi, learned counsel, representing Sri Ramakrishna Akurathi, learned
counsel for the 1st respondent and Sri B. Manjeet, learned counsel,
representing Sri Ch. Venkata Raman, learned counsel for the 2nd respondent.
13. It has to be kept in mind that the right of appeal is neither a natural
nor an inherent right attached to the litigation. It is regulated in accordance
with law. A second appeal preferred under Section 100 of CPC could be
admitted only when the appellant satisfies this Court that the substantial
questions of law between the parties arise in this case. A proper test for
determining whether a questions of law raised in the case is substantial would
be or whether it directly and substantially affects the rights of the parties and if
so, whether it is either an open question in the sense that it is not finally
settled by the superior Courts or is not free from difficulty or cause for
discussion of alternative views. In a case of Boodireddy Chandraiah v.
Arigela Laxmi1, the Apex Court held that;
1
(2007) 8 SCC 155
"it is not within the domain of the High Court to investigate the grounds
on which the findings were arrived at by the last Court of fact namely, the
first appellate Court. In a case where from a given set of circumstances
two inferences of facts are possible, one drawn by the lower appellate
Court will not be interfered by the High Court in a second appeal.
Adopting any other approach is not permissible. Where, the facts
required for a point of law have not been pleaded, a litigant should not be
allowed to raise that question as a substantial questions of law in second
appeal. The mere appreciation of facts, the documentary evidence and
the contents of the documents cannot be held to be raising substantial
questions of law."
14. The defendants having chosen to invoke the jurisdiction of this
Court under Section 100 of Civil Procedure Code, it is for them to meet the
above principles and satisfy the Court whether there exists any substantial
questions of law.
15. This second appeal is filed against the concurrent findings arrived
by both the Courts below, therefore the grounds urged in the second appeal
are to be scrutinized to find out whether the appellants have shown any
substantial questions of law. The contention of the appellants is that the
judgment and decree of the trial Court as well as the first appellate Court are
contrary to law and that the second appeal may be allowed by setting aside
the judgment and decree passed by both the Courts below i.e. the trial Court
and the first appellate Court.
16. The undisputed facts of both parties are one Gokarakonda
Vibheeshana Rao and Stayanarayana are husband and wife and they have
got one son i.e., 1st defendant and four daughters i.e., defendant Nos.2 & 3,
plaintiff and Vara Lakshmi i.e., mother of defendant Nos.4 and 5. It is also not
in dispute that Gokarakonda Vibheeshana Rao died on 27.05.2012 and his
wife died on 17.03.2012 and the suit schedule property originally beings to
Kasturi Venkata Narasamma i.e., mother of Stayanarayana and grandmother
of plaintiff, defendant Nos.1 to 3. It is an admitted fact by both parties that
originally the plaint schedule property belongs to Kasturi Venkata Narasamma
and the relationship of both parties with said Kasturi Venkata Narasamma is
not in dispute. The said Kasturi Venkata Narasamma executed a registered
gift settlement deed under Ex.A.1 by giving life interest in respect of plaint
schedule property to Satyanarayana i.e., mother of plaintiff and defendant
Nos.1 to 3 and mother of defendant Nos.4 and 5. The fact remains
Varalakshmi one of the daughters of Satyanarayana is no more and her
children are defendant Nos.4 and 5 herein.
17. As per Ex.A.1, settlement deed, dated 25.06.1970, the plaintiff,
defendant Nos.1 to 3 and their sister Varalakshmi are having vested
remainder rights and life interest was also given to Satyanarayana by the
grandmother of the plaintiff. It is also not in dispute by both the parties about
the execution of registered settlement deed under Ex.A.1 by the original
owner of the plaint schedule property i.e., Kasturi Venkata Narasamma by
giving life interest in respect of plaint schedule property to the mother of
plaintiff and vested remainder rights to the plaintiff, defendant Nos.1 to 3 and
mother of defendant Nos.4 and 5. The contention of the appellants is that the
vested remainder holders have relinquished their right in the plaint schedule
property in favour of their mother and she has executed Ex.B.1, Will in favour
of 1st defendant since she acquired absolute right in the plaint schedule
property. In fact, the appellants have not placed any evidence before the trial
Court as well as first appellate Court to show that Satyanarayana acquired
absolute rights in the plaint schedule property. Furthermore, as per the own
admissions of the 1st defendant i.e., D.W.1, his mother has got life interest
only during her life time and after her death, the children of his mother are
entitled for the plaint schedule property. As per his own admissions, the
plaintiff, defendant Nos.1 to 3 and mother of defendant Nos.4 and 5 are
having vested remainder rights in the plaint schedule property. It is also fact
that life interest holder is no more and she died prior to filing of the suit itself
on 17.03.2012.
18. The contention of the defendants before the trial Court is all the
defendants and plaintiff have relinquished their right in plaint schedule
property in favour of their mother. In fact, there is no documentary evidence
on record in respect of alleged relinquishment of rights by the plaintiff and so
also there is also no documentary evidence in respect of relinquishment of
their rights by the defendants. In his evidence, the 1st defendant admits that
the date of relinquishment of rights are not at all mentioned in his chief
affidavit. There is no whisper in the written statement also about the alleged
oral relinquishment of vested remainder rights by the plaintiff and defendants.
Furthermore, as per the own admissions of 2nd defendant i.e., D.W.5, the
grandmother has given only life interest to Satyanarayana and vested
remainder rights were given to children of Satyanarayana i.e., plaintiff,
defendant Nos.1 to 3 and mother of defendant Nos.4 and 5. The contention of
the defendants is that mother of 1st defendant executed an unregistered Will
under Ex.B.1 in respect of plaint schedule property in favour of 1st defendant.
As noticed supra, Satyanarayana has no right to execute any Will in respect of
plaint schedule property because she was having limited rights in the plaint
schedule property, in such a case she is not having any right to execute Will,
Ex.B.1 in respect of plaint schedule property in favour of 1st defendant.
Furthermore, there is no pleading in the written statement itself that the 1 st
defendant relinquishment is vested remainder right in favour of his mother in
order to acquire absolute right and title by Satyanarayana. Therefore, for the
aforesaid reasons, undoubtedly, the plaintiff is having right in plaint schedule
property by virtue of vested remainder rights given under Ex.A.1, registered
settlement deed, by her grandmother. In the case on hand, admittedly, the
relief sought by the plaintiff is for partition of suit schedule property and to
divide five equal shares and to allot one such share to the plaintiff. As noticed
supra, the plaintiff is having equal rights in plaint schedule property along with
defendant Nos.1 to 3 and mother of defendant Nos.4 and 5. On appreciation
of the entire evidence on record, the learned trial Judge rightly came to a
conclusion that the plaintiff is entitled relief of partition of suit schedule
property which is confirmed by the learned first appellate Judge.
19. Having regard to the reasons assigned, this Court is satisfied that
the concurrent findings of fact recorded by both the Courts below on all the
issues/points in favour of the plaintiff and against the defendants do not brook
interference and that both the Courts below are justified in allowing the suit of
the plaintiff. The findings of fact recorded by both the Courts below were
based on proper appreciation of evidence and the material on record and
there was neither illegality nor irregularity in those findings and therefore, the
findings do not require to be upset. Further, the existence of substantial
questions of law is a sine qua non for the exercise of jurisdiction by this Court
as per Section 100 of Code of Civil Procedure. The questions raised, strictly
speaking, are not even pure questions of law, let alone substantial questions
of law.
20. Viewed thus, this Court finds that none of the questions raised are
substantial questions and there is no subsistence in the questions raised and
that therefore, the second appeal is devoid of merits and is liable for dismissal
at the stage of admission. The law is well settled that a second appeal shall
not be admitted if no substantial questions of law arise for consideration and
when no substantial questions of law is involved. The view of this Court is
reinforced by the ratio laid down by the Apex Court in the case of Gurdev
Kaur v. Kaki2. In the case on hand, as stated supra, this Court finds after
careful examination of the pleadings, evidence and contentions that no
substantial question of law is involved, this second appeal is liable for
dismissal at the stage of admission, in view of narrow compass of Section 100
of Civil Procedure Code.
2
AIR 2006 SC 1975
21. In the result, the second appeal is dismissed at the stage of
admission, confirming the judgment and decree of both the Courts below.
No costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT.28.10.2024. PGR HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.728 of 2019 Dt.28.10.2024. (PGR)