Telangana High Court
Ashok Lulla vs Ramesh Lulla, And 2 Others on 10 June, 2025
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
CITY CIVIL COURT APPEAL No.375 OF 2019
JUDGMENT:
This is an appeal filed by the appellant, being aggrieved by the judgment and decree, dated 24.06.2019 passed in O.S.No.210 of 2011 by the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad (for short "the trial Court").
2. The appellant herein is the plaintiff and the respondents are the defendants before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.
3. The case of the plaintiff before the trial Court is that his father Dwaraka Das was the owner and possessor of the suit schedule property and that he had two sons and two daughters i.e. plaintiff and defendant No.1 are the sons while defendant Nos.2 and 3 are the daughters. That Dwaraka Das purchased a vacant plot bearing plot No.25 in Sindhi Housing Co-operative Society under document No.1382 of 1960 and later on he constructed a house in the said property. Subsequently, he died intestate on 01.11.1977 and that after his death the defendants have become the legal heirs of the said property. It is his case ETD,J CCCA No.375_2019 2 that due to domestic problems, he left the suit schedule property and was residing in a rental premises and that after the death of their father, defendant Nos.2 and 3 i.e. their sisters executed a relinquishment deed on 18.11.1997 which was not registered and that this relinquishment deed was executed in favour of the plaintiff and defendant No.1 when their mother was alive. Subsequently, their mother died in the year 1984. Then another release deed was executed by the plaintiff, defendant Nos.2 and 3 on 14.02.1990 in favour of defendant No.1 and that even the said release deed was not registered. He further averred that the said unregistered relinquishment deed is non-est in the eye of law. That the parties never intended to give their shares in favour of defendant No.1 and that the plaintiff has equal share in the suit schedule property along with defendant Nos.2 and 3. It is his case that defendant No.1 has created a mortgage of suit schedule property by playing fraud with Bank of India for obtaining the loan by submitting the alleged release deed. It is further averred that on learning about the alienation of the suit schedule property through an advertisement in paper, he got issued a legal notice to the defendant No.1 on 25.01.2009 and he learnt that defendant No.1 got the mortgage discharged and also got the property released in his favour from Sindh Housing Cooperative ETD,J CCCA No.375_2019 3 Society Ltd., That the plaintiff has requested the defendant No.1 to divide the property and release his share but defendant No.1 resisted the same and started avoiding on one pretext or the other, therefore, the plaintiff has filed the suit.
4. The defendant No.1 has filed written statement. He admitted the relationship but denied all the material averments in the plaint. He further contended that plaintiff had dire necessity of money and made persistent demands with defendant No.1 to sell the suit schedule property in 1990 and thus, instead of selling the suit property, defendant No.1 expressed his willingness to purchase 50% share of the plaintiff in the suit schedule property for a sum of Rs.1 lakh, accordingly, he accepted the said offer and that by accepting Rs.1 Lakh he has executed the release deed in favour of defendant No.1. Thus, defendant No.1 has paid the said amount of Rs.1 Lakh vide cheque No.936900 dated 28.02.1990 drawn on Vyshya Bank Limited and the plaintiff has also executed a receipt on 01.03.1990. Thus, by virtue of the release deed, the property was released in favour of Defendant No.1. Thereafter, the first floor and the part of second floor were constructed exclusively by the 1st defendant out of his funds. He further admitted that relinquishment deed dated 18.11.1977 was executed by ETD,J CCCA No.375_2019 4 defendant Nos.2 and 3 in favour of the plaintiff and defendant No.1. By virtue of the same, defendant No.1 and plaintiff became the co-owners to the extent of 50% each and by the release deed dated 14.02.1990 defendant No.1 got the entire property as the plaintiff relinquished his share. It is his further case that the release deed dated 14.02.1990 had been duly authenticated by the Inspector General of Registration and Stamps and that the requisite stamp duty has been paid thereon and that the plaintiff after receipt of valuable consideration has delivered the possession of the suit schedule property. He further stated that he has pursued the matter with the said society to release the plot from the mortgage vide indenture of release dated 20.07.1991 and with his own efforts and payment of all outstanding dues to the said society, he got executed a registered indenture of release dated 24.04.2010 and that the mortgage of the suit property by defendant No.1 with the Bank of India is of no consequence to the plaintiff as he has no title, share or interest in the suit schedule property. He admitted that he has made a publication in the Deccan Chronicle on 03.01.2009 for alienating the suit property to repay the loan advanced by the Bank of India but thereafter he repaid the loan by himself and gave up the idea of alienating the suit property. Thus, he ETD,J CCCA No.375_2019 5 submitted that once the plaintiff has relinquished his share in the property, he has no right to seek any partition in the suit schedule property.
5. Based on the above pleadings, the trial Court has framed the following issues for trial:
"1. Whether the plaintiff is entitled for partition as prayed for?
2. Whether the suit is barred by limitation?
3. Whether there is no cause of action to file the suit?
4. Whether Court fee paid is incorrect?
5. To what relief?"
6. At the time of trial, the plaintiff got examined himself as PW1 and got marked Exs.A1 to A10. On behalf of the defendants, defendant No.1 got examined as DW1 and Exs.B1 to B3 were marked.
7. Based on the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed.
8. Heard the submissions of Sri K.K.Waghray, learned counsel for the appellant, Sri Karoor Mohan, learned counsel for ETD,J CCCA No.375_2019 6 respondent Nos.4, 6 and 7 and Sri Zeeshan Adnan Mahmood, learned counsel for respondent No.5.
9. The learned appellant counsel has submitted that the trial Court has misdirected itself while dealing with the question with regard to the passing of title on the basis of oral admissions. He argued that the trial Court ought to have seen that the relinquishment deed is not a registered document and thus, it has no probative value and thus, the said document should not be relied upon by the trial Court for deciding any issue. He further argued that once the document itself is non est in the eye of law, the defendant No.1 becoming the absolute owner of the property is absolutely false and that the plaintiff and also their sisters defendant Nos.2 and 3 are entitled to a share in the property. He further argued that the trial Court has simply relied upon the oral admissions and has dismissed the suit, which is not proper in the eye of law, he therefore, prayed to set aside the judgment and decree dated 24.06.2019 by allowing this appeal.
10. Sri Karoor Mohan, learned counsel for respondent Nos.4, 6 and 7, on the other hand, has submitted that once the plaintiff has relinquished his share, he is estopped from seeking a share.
ETD,J CCCA No.375_2019 7 He further argued that though the relinquishment deed is not registered, the same can be considered for collateral purposes and it can be considered by the trial Court while deciding the issues involved in the case. He further argued that the suit is barred by limitation and that the relinquishment deed is dated 18.11.1977 and the suit is filed in 2011, so it is filed beyond the period of limitation and he further argued that once the plaintiff admitted the relinquishment deed in his evidence, no further proof is required under Section 58 of the Evidence Act and that further he is estopped from going against his own evidence. He further argued that the documents bearing Nos.3975/1991 and 730 of 2010 are not challenged for cancellation. Thus, they are still in force and the said relinquishment deed 18.11.1977 creates estoppel against the plaintiff herein.
11. Sri Zeeshan Adnan Mahmood, learned counsel for respondent No.5 has argued that the Court fee paid by the plaintiff is insufficient and that once he has delivered possession in favour of defendant No.1, he ceases to be the joint owner but he has paid only Rs.200/- towards the Court fee claiming that he is a joint owner and possessor, which is wrong and that the suit has to be dismissed even on that ground. He further argued that the trial Court was right in relying upon the documents filed by ETD,J CCCA No.375_2019 8 the defendant i.e. Ex.B2/the receipt issued for Rs.1 lakh by the plaintiff, in lieu of his half share in the suit schedule property. Thus, there is no strength in the suit and the trial Court was right in dismissing the suit.
12. Based on the above rival submissions, this Court frames the following points for consideration:
1. Whether the plaintiff is entitled to partition of the suit schedule properties?
2. Whether the judgment and decree of the trial Court is sustainable in law and under the facts?
3. To what relief?
13. POINT NO.1:
a) The plaintiff's case is that the suit schedule property belongs to his father and on his death it devolved upon his legal heirs i.e. the plaintiff, his brother/Defendant No.1 and his sisters' defendant Nos.2 and 3. He states that he has executed a relinquishment deed along with his sisters on 14.02.1990 but it was not registered and hence, it has no value in the eye of law.
Therefore, he claims 1/4th share in the suit schedule property. During his cross examination, he has admitted the execution of release deed dated 14.02.1990 and also that his sisters ETD,J CCCA No.375_2019 9 defendant Nos.2 and 3 also signed on the said relinquishment deed. It is further elicited from him that he did not seek for cancellation of the said relinquishment deed in the suit. It is also elicited that he has not issued any notice to the defendants till 2010 i.e. till the filing of suit. He admitted that subsequently the mortgage on the property was redeemed but he does not know whether the property was sold or still stands in the name of defendant No.1. He also admitted that the said relinquishment deed was impounded and he pleaded ignorance about the defendant No.1 getting the property transferred in his name by virtue of release deed. But again he says that he is aware about the said transfer. He admitted that he has not issued any legal notice to defendant No.1 stating that the release deed is a created document. He has taken a plea for the first time in his evidence affidavit that the said amount of Rs.1 lakh was given to defendant No.1 in connection with the business. In his cross examination he admitted that he has not mentioned in the plaint or in his evidence that in connection with a business firm he gave amount to the defendant and that there is no mention in Ex.B2/receipt that in connection with the business firm the said amount was paid. He also admitted that he has not given any reply or rejoinder denying Ex.B2 in pursuance to the ETD,J CCCA No.375_2019 10 written statement. He denied that the electricity bills and water bills of the suit schedule property are in the name of 1st defendant and he stated that he would try to file the documents to show that the said bills are in the name of their father but he failed to do so. He filed Exs.A1 to A10 to prove his case. Ex.A1 is certified copy of the agreement between the Sindhi Cooperative Society and the Government wherein the land was allotted to the cooperative society for allotting the same to the house sites as house sites to its members and Ex.A2 is the mortgage deed and the mortgagor is defendant No.1. These two documents do not aid the plaintiff in showing that he still has right in the suit schedule property to claim a share in it. He filed the copy of legal notice under Ex.A3 dated 25.01.2009, Exs.A4 to A7 are the postal receipts and Ex.A8 is the market value certificate, Ex.A9 is the re-conveyance deed executed by bank of India in favour of defendant No.1 and Ex.A10 is the indenture of release executed by the Sindhi Housing Cooperative Society Ltd., in favour of defendant No.1. In fact these documents do not aid the plaintiff in proving his case to claim a share in the property. On the other hand, they would establish the facts that initially the Sindhi Housing Cooperative Society Ltd., had entered into agreement with the Government of Andhra Pradesh and that thereafter the ETD,J CCCA No.375_2019 11 house plots were sold and the said documents do establish that the property was mortgaged by Defendant No.1 to Bank of India and later on the mortgage was discharged in his own favour by repaying the loan. In order to prove that he has a share, the plaintiff should disprove his relinquishment. The said release deed is not marked by the trial Court because it is an unregistered document. However, the defendant has filed Exs.B1 to B3 i.e. Indenture of release deed dated 24.04.2010 by the Sindhi Housing Cooperative Society Ltd., in favour of defendant No.1 and Ex.B2 forms crucial that is the Original receipt executed by the plaintiff. A perusal of Ex.B2 reveals that the plaintiff has executed the said receipt stating that he has received Rs.1 Lakh from defendant No.1 by a cheque bearing No.936900 dated 28.02.1990 drawn on Vysya Bank Ltd., Secunderabad in consideration and surrender of his half share in the house No.1-8-264/23 (Plot No.23) situated at Sindhi Colony, Sardar Patel Road, Secunderabad for which he is now the sole owner. It bears the signature of the plaintiff and the said receipt was admitted by him during his cross examination. Thus, Ex.B2 demolishes the case of plaintiff, even keeping aside the release deed which he says that it cannot be relied upon due to non- registration. Ex.B2 is enough to disprove the case of the ETD,J CCCA No.375_2019 12 plaintiff. It is mentioned in clear terms that the plaintiff having received Rs.1 lakh vide cheque from the defendant No.1 and has relinquished his share, now he cannot turn around and say that he has not relinquished his share in the property. Further, the indenture of release deed/Ex.A10 proves that the property belongs to defendant No.1 and the municipal tax receipts filed by the defendant under Ex.B3 also reveals the said fact.
b) The appellant's counsel has argued that the unregistered document cannot be considered in the eye of law and therefore, the plaintiff still continues to be the owner of his 50% share in the suit schedule property. But having executed the receipt under Ex.B2 and having admitted that execution of relinquishment deed he is estopped from denying the same. He has also not issued any notice to defendant No.1 subsequently and he has not sought for cancellation of said relinquishment deed. Thus, Ex.B2 proves that the plaintiff relinquished his share.
c) Learned counsel for the appellant has relied on a decision of the Division Bench of this High Court in State of Telangana, rep. by its Principal Secretary, Revenue Department, ETD,J CCCA No.375_2019 13 Hyderabad v. P.Balabhaskar Reddy 1, wherein it was held that "validation by payment of deficit stamp duty and penalty though cures the defect of document being insufficiently stamped, it will not cure the defect of it being unregistered".
d) Learned counsel for the appellant further relied upon a decision of the Apex Court in Shyam Narayan Prasad v. Krishna Prasad 2, wherein it was held that deed of exchange which is not registered cannot be taken into account to the extent of transfer of immovable property and that the best evidence of contents of document is the document itself and under Section 91 of evidence Act, the document itself has to be produced to prove its contents and that by virtue of Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. In the present case, admittedly the relinquishment deed is not a registered document and thus, it was not admitted in evidence and it was not marked. Even, keeping aside the relinquishment deed, Ex.B2 is admitted by the plaintiff himself and in Ex.B2 the execution of relinquishment deed is mentioned. Thus, the said case law is of no aid to the appellant.
12021 (6) ALT 226 (D.B.) 2 AIR 2018 SCC 3152 ETD,J CCCA No.375_2019 14
e) Learned counsel for the appellant has also relied upon a decision of the Apex Court in Mrs.Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese 3, wherein it was held that "it is not always necessary for the plaintiff in a suit for partition to seek cancelation of alienations. There are several reasons behind this principle and one is that the alienees as well as the co sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer and that it may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner". In the present suit, there is no question of alienation. The plaintiff himself has relinquished his share by accepting amount and executed a receipt in lieu of the same. Once, he has relinquished the property, the question of partition does not arise and there is no aspect of alienation in the present suit and hence, the case law is not applicable to the case on hand.
f) Learned counsel for the appellant also relied upon a decision of this Court in Akula Sangappa v. Bandam Siddappa 4 to support his point that any document specifying relinquishment of a right in immovable property and creating a 3 AIR 2022 SCC 1640 4 2016 (1) ALT 368 ETD,J CCCA No.375_2019 15 corresponding right in another under it requires registration. It is again reiterated in this context that in the present case the relinquishment deed is not registered and hence, it was not marked in evidence but there is Ex.B2 which has been admitted by plaintiff and the contents of Ex.B2 reveal that it was executed in lieu of relinquishing the share of the plaintiff by receiving an amount of Rs.1 lakh. Thus, the said case law also cannot be applied to the facts and circumstances of the present case.
g) The learned counsel for respondent No.5 has relied upon a decision of the Apex Court in Ahmedsaheb (Dead) by Lrs., v. Sayed Ismail 5, wherein it was held that "though an unregistered rent deed cannot be legally accepted in evidence, claim arising therefrom can be granted on the basis of uncontroverted evidence available on record supporting the claim". The said decision squarely applies to the present case. In the present case also relinquishment deed is not registered but the claim arising out of the said relinquishment deed i.e. the share of defendant No.1 is proved through the evidence available on record i.e. vide Exs.B1 to B3 and also further fortified with the admissions made by PW1.
5 (2012) 8 SCC 516 ETD,J CCCA No.375_2019 16
h) The learned counsel for respondent No.5 has further relied upon a decision of the Apex Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram 6, wherein it was held that "the admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive". They can be shown to be wrong. In the case on hand, the plaintiff admitted the execution of relinquishment deed in his plaint and thus, the said admission is binding on him, in the light of the above cited decision.
i) The learned counsel for respondent No.5 has further relied upon a decision of the High Court of Andhra Pradesh in Venku Bai v. Raju Bai (alias) Rajeswaramma 7, wherein it was held that the relinquishment of the share of a coparcener in the joint 6 (1974) 1 SCC 242 7 1987 (1) ALT 360 ETD,J CCCA No.375_2019 17 family property need not be evidenced by a document in writing and that it can be inferred even from the circumstances as such an act does not amount to a conveyance of property. Applying the said principle to the case on hand, relinquishment of his share by the plaintiff can be inferred from the other circumstances such as accepting the amount in lieu of his share and executing a receipt for the same.
j) The learned respondent counsel relied upon a decision of the Apex Court in Kusheshwar Prasad Singh v. State of Bihar 8, wherein it was held that "it is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong".
k) In the present case, the plaintiff himself has admitted the execution of the relinquishment deed in his pleadings but his contention is that since it is an unregistered document it cannot be relied upon.
8 (2007) 11 Supreme Court Cases 447 ETD,J CCCA No.375_2019 18
l) Thus, in view of the discussion held above and in the light of the decisions cited by the respondents counsel, it is held that the plaintiff is not entitled to a share in the suit schedule property as he has already relinquished his share. Point N.1 is answered accordingly.
14. POINT NO.2:
In view of the reasoned findings arrived at point No.1, it is held that the judgment and decree passed by the trial Court are found to be well reasoned and hence, they are held to be sustainable in law and under the facts and circumstances of the case.
15. POINT NO.3:
In the result, the appeal is dismissed upholding the judgment and decree, dated 24.06.2019 passed in O.S.No.210 of 2011 by the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad. No costs.
Miscellaneous Applications, if any, pending in this appeal shall stand closed.
_________________________________ JUSTICE TIRUMALA DEVI EADA Date: 10.06.2025 ns