Andhra Pradesh High Court - Amravati
K. Doraswamy Naidu vs K. Markonda Naidu on 3 January, 2025
1
APHC010515102010
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
FRIDAY, THE THIRD DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
SECOND APPEAL NO: 405/2010
Between:
K. Doraswamy Naidu ...APPELLANT
AND
K Markonda Naidu and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. K G KRISHNA MURTHY Counsel for the Respondent(S):
1. YELLAPRAGADA SRINIVASA MURTHY The Court made the following JUDGMENT:
1. The Appellant/Plaintiff Plaintiff filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against the Judgment and decree, dated 29.03.2010 passed in A.S. No.122 of 2000 on the file of VIII Additional District Judge (Fast Track T Court), Chittoor (for short, 'the 1st Appellate Court') ') reversing the Judgment and decree, dated 05.06.2000 passed in O.S. No.320 of 19 1994 on the file of Principal Junior Civil Judge, Chittoor (for short 'the trial Court').
Court
2. The Appellant/1st Respondent is the Plaintiff, who filed the suit in O.S.No.320 of 1994 seeking to pass a preliminary decree for division of plaint 2 schedule properties into two equal shares by taking into account the good and bad qualities and to allot one such share to the Plaintiff.
3. It is expedient to refer to the parties as they are initially arrayed in the suit in O.S.No.320 of 1994 to mitigate confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:
(a) The 1st Defendant, the Plaintiff's younger brother, and their father, K. Ramaiah Naidu, were originally living together. The joint family properties were divided in 1989 under a registered partition deed, with the plaint schedule properties allotted to their father. As per the deed, the father had limited rights to enjoy the income from these properties but no right to alienate them. Upon the father's death, the properties were to be divided equally between the Plaintiff and 1st Defendant.
(b) The Plaintiff filed a suit (O.S.No.330 of 1990) for a permanent injunction, preventing the 1st Defendant and their father from alienating the properties. The suit is still pending. The 1 st Defendant, exploiting their father's declining health, attempted to fabricate documents to alienate the properties in his favour or that of Defendants 2 to 4. After the father's death in 1993, the Plaintiff and 1st Defendant jointly possessed the properties, following the partition deed's terms. However, the 1 stDefendant continued to make attempts to alienate the properties and deprive the Plaintiff of his rightful share. Despite efforts for an amicable division through a mediator, the 1st Defendant refused to divide the properties. The Plaintiff, fearing further attempts to alienate the properties, filed this suit.3
5. Denying the Plaintiff's allegations, the 1st Defendant asserted in the written statement that the Plaintiff filed O.S.No.333 of 1990 seeking a permanent injunction to prevent the 1st Defendant and their father from alienating properties, and also filed I.A.No.576 of 1990 for temporary injunction. The 1st Defendant contested the suit, and the injunction petition was dismissed on merit with conditions. The Plaintiff played a significant role in securing the partition deed dated 23.07.1989, including procuring the attestors and scribe, who are allegedly his associates. The 1st Defendant claims the Plaintiff fraudulently inserted a restraint clause into the partition deed just before registration, without their knowledge or consent, to limit their father's enjoyment of his share of properties. The 1st Defendant further asserts that their father never intended such a limitation. In his counter- affidavit in I.A.No.576 of 1990, their father declared that the Plaintiff or his successors were not entitled to inherit his properties. On 20.03.1992, in a sound state of mind, their father executed an unregistered will in the 1st Defendant's favor, bequeathing his properties. The will, witnessed by their mother and another attestor, was handed over to the 1st Defendant, and their father passed away on 09.09.1993. This will be considered their father's last testament, confirming the 1st Defendant as the rightful heir. The 1st Defendant denies that the Plaintiff is in joint possession of the property or that he has created false documents in favor of Defendants 2 to 4. The Plaintiff's claim of demanding partition through mediator C. Rajagopal is also denied. The 1st Defendant claims that the Plaintiff is not entitled to any share in their father's property, and therefore the suit should be dismissed with costs.
6. The 2nd Defendant filed the written statement, which was adopted by the Defendants 3 and 4. In the written statement, the 2 nd Defendant denied all the allegations in the plaint, contended that he purchased the suit property from the 1st Defendant through a registered sale deed dated 31.05.1994, and has been in continuous possession since then. Prior to this, the 1st Defendant was in possession. The Plaintiff has never been in possession. Defendants 3 4 and 4, who are the 2nd Defendant's sons, live with him jointly. The Plaintiff and the 1st Defendant partitioned the property on 23.07.1989, granting the 1st Defendant absolute rights. After their father's death, the 1st Defendant executed a sale deed in favour of the 2nd Defendant. The Plaintiff has no rights over the property. The 2nd Defendant is a bona fide purchaser and cultivates the land. The Plaintiff previously filed a similar suit (O.S.No.330 of 1990) for the same relief, which was dismissed. This present suit is vexatious and meant to harass the 2nd Defendant. The 2nd Defendant is not a necessary party and was added solely to cause trouble. The claims regarding the partition deed and the rights of the 1st Defendant as referred in plaint are false. The 2nd Defendant requests the dismissal of the suit with costs.
7. The Plaintiff filed a rejoinder, refuting the false claim that he played a major role in securing the partition deed dated 23.07.1989, and that the attestors and scribe were his accomplices. He asserts that the partition deed was fraudulently executed, with limitations on enjoyment of the father's share added without his or his father's knowledge. He also disputes the allegations made in I.A.No.576 of 1990, claiming the 1 st Defendant fabricated the counter and obtained his father's signature fraudulently. The Plaintiff denies the existence of a will dated 20.03.1992 in favor of the 1st Defendant, calling it a forged document. Additionally, he refutes the 2 nd Defendant's purchase of the property from the 1st Defendant, claiming the sale deed is incorrect, the boundaries are wrong, and the 2nd Defendant is not in exclusive possession. The 2nd Defendant has no right to the property until it is divided and allotted.
8. Based on the above pleadings in O.S.No.141 of 1984, the trial Court framed the following issues:
1) Whether the Plaintiff is entitled for partition of plaint schedule properties into two equal shares and allotment of one such share to him?
2) Whether D.1's father has executed a Will on 20.3.92 in favour of D.1?5
3) Whether the suit is bad for misjoinder and non-joinder or necessary parties to suit?
4) Whether the suit is hit by resjudicate under Order 2 Rule 2 C.P.C?
5) Whether D.2 has purchased written statement schedule property from D.1 under regd. Sale deed dt. 31.5.94 and D.2 has been in possession and enjoyment of the same since then?
6) Whether the joint family properties were already partitioned between Plaintiff, D.1 and their deceased father?
7) To what relief?
9. During the trial, PWs.1 and 2 were examined on behalf of the Plaintiff and marked Exs.A.1 to A.4. Conversely, on behalf of the Defendants, DWs.1 to 6 were examined and marked Exs.B.1 to B.6.
10. After the trial concluded and both sides presented their arguments, the learned trial Court preliminary decreed without costs, dividing the schedule property into two equal halves and one share is allotted to the Plaintiff and another share is allotted to the 1st Defendant.
11. Aggrieved by the said Judgment and decree in O.S.No.320 of 1994, the 1st Defendant preferred an appeal in A.S.No.122 of 2000 on the file of the 1st Appellate Court. The 1st Appellate Court, being the final fact-finding Court, framed the following points for consideration:
1) Whether the clause in Ex.A.1 that the father of the parties should enjoy the property without any power of alienation was inserted in Ex.A.1 subsequently without his consent and knowledge as contended by the Appellant?
2) Whether the said clause is contrary to the principle of law in Section 10 of T.P.Act?
3) Whether the said clause of restrictive enjoyment being repugnant to the earlier clause in the same document is inoperative?
4) Whether the Will Ex.B.1 is true, valid and binding on the Plaintiff?
5) Whether the Plaintiff / R.1 is entitled for partition of half share in the suit property?
6) Whether the judgment of the trial Court is liable to be set aside?6
12. The 1st Appellate Court, on scrutiny of oral and documentary evidence adduced on behalf of both sides, had allowed the Appeal without costs by its Judgment, dt.29.03.2010. Aggrieved by the 1 st Appellate Court's Judgment passed in A.S.No.122 of 2000, the Plaintiff preferred the present Second Appeal.
13. I heard Sri K.G. Krishna Moorthy, learned Counsel representing the Appellant/Plaintiff, and Sri Y. Srinivasamurthy, learned Counsel for the 1 st Respondent /1st Defendant.
14. Based on the Appellant's contentions, the following substantial questions of law are involved in this Second Appeal:
st
a) Whether the 1 Appellate Court is right in ignoring the provisions of Section 68 of the Indian Evidence Act, 1872 and Sections 63 and 61 of the Indian Succession Act in proving the execution of Ex.B-1 Will and its validity when there are suspicious circumstances and onus is on the propounder to remove the suspicion by adducing appropriate evidence as held by the Hon'ble Supreme Court in Apoline D' Souza v.
John D' Souza - 2007 (5) ALT 46 (SC) and also in Gadepalli Jayaprakash v. Gadepalli Saraswati (died) per L.Rs. - 2010 (2) ALD 437.
st
b) Whether the 1 Appellate Court is right in applying Section 10 of Transfer of Property Act to the facts of the case, ignoring the well settled principle laid down by the Hon'ble Supreme Court that the Courts have to lent in favour of upholding a family arrangement, instead of disturbing the same on technical or trivial grounds and the Rule of Estoppel has to be pressed into service to shut out the plea of a person, who being a party to the family arrangement, seeks to unsettle the settled dispute, as held by the Honble Supreme Court in kale v. Dy.Director of Consolidation - AIR 1976 SC 807 and also in ILR 2004 KARNATAKA 2153.
st
c) Whether the 1 Appellate Court is right in ignoring the vital piece of evidence Ex.A.1 which could have led to a different conclusion and taking into consideration of the inadmissible 7 evidence, which constitute a substantial question of law, as held by the Hon'ble Supreme Court in Ishwar Dass Jain V. Sohan Lal - (2000) 1 SCC 434.
15. Before delving into the matter, since the Appeal is filed under Sec.100 CPC, this Court must see the scope of Section 100 of C.P.C.
16. Considerations in Section 100 of C.P.C. arise only when there is a substantial question of law and not mere such questions of law or one based on facts. However, it has to be borne in mind that in case of misapplication of law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in 2nd Appeal to consider such questions which are substantial in nature in terms of law.
17. In Mallanaguoda v. Ninganagouda1, the Hon'ble Supreme Court held that:
10. The first appellate Court is the final Court on facts. It has been repeatedly held by this Court that the Judgment of the first appellate Court should not be interfered with by the High Court in the exercise of its jurisdiction under Section 100CPC unless there is a substantial question of law. The High Court committed an error in setting aside the Judgment of the first appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the first appellate Court.......
18. In K.N. Nagarajappa v. H. Narasimha Reddy2, the Hon'ble Supreme Court held that:
14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate Court are final.
However, the rule that sans a substantial question of law, the High Courts cannot interfere with the findings of the lower Court or concurrent findings of fact is subject to two important caveats. The first is that if the findings of fact are palpably perverse or outrage the conscience of the Court, in other words, it flies in the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for 1 (2021) 16 SCC 367 2 (2021) 18 SCC 263 8 examination and be upset, in the limited circumstances spelt out in Section 103CPC.
15. Section 103CPC reads as follows:
"103. Power of High Court to determine issues of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the Appeal--
(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court or
(b) which has been wrongly determined by such Court or courts by reason of a decision on such question of law as is referred to in Section 100."
16. In the Judgment in Municipal Committee, Hoshiarpur v. Punjab S.E.B. [Municipal Committee, Hoshiarpur v. Punjab S.E.B., (2010) 13 SCC 216 :
(2010) 4 S.C.C. (Civ) 861], this Court held as follows : (S.C.C. pp. 228-29, paras 26-28) "26. Thus, it is evident that Section 103CPC is not an exception to Section 100CPC, nor is it meant to supplant it; rather, it is to serve the same purpose. Even while pressing Section 103CPC in service, the High Court has to record a finding that it had to exercise such power because it found that finding(s) of fact recorded by the Court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the Court (s) below.
27. There is no prohibition on entertaining a second appeal, even on a question of fact, provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter, i.e. that the findings of fact are found to be perverse. However, the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts.
(Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 : (2010) 4 S.C.C. (Civ) 738] .)
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be 9 perverse. Further, suppose the findings are either ipse dixit of the Court or based on conjecture and surmises. In that case, the Judgment suffers from the additional infirmity of non-application of mind and, thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] .)"
(emphasis supplied)
17. In a recent judgment of this Court, Narayan SitaramjiBadwaik v. Bisaram [Narayan SitaramjiBadwaik v. Bisaram, (2021) 15 SCC 234], this Court observed as follows, in the context of the High Courts' jurisdiction to appreciate factual issues under Section 103IPC : (S.C.C. p. 238, para 11) "11. A bare perusal of Section 103CPC clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the Appeal has not been determined by the lower appellate Court or by both the courts below. And second, when an issue of fact has been wrongly determined by the Court (s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure."
19. In Balasubramanian v. M. Arockiasamy3, the Hon'ble Supreme Court held that:
14. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate Court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts, the High Court has breached the said settled position........................
15.................... When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code, though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which were at variance with each other and one of the views taken by the courts below was required to be approved.
20. Before addressing the rival contentions and the conflicting findings of both the Trial Court and the First Appellate Court, I will first outline the undisputed facts derived from the record as follows:
3(2021) 12 SCC 529 10 The Plaintiff, the 1st Defendant, and their father, Sri K. Ramaiah Naidu, partitioned their properties on 23.07.1989, with the partition deed registered on 28.11.1987. According to the partition deed (Ex.A.1), the properties listed in the 'A' Schedule were allotted to Sri K. Ramaiah Naidu, the properties in the 'B' Schedule were allotted to the Plaintiff, and the properties in the 'C' Schedule were allotted to the 1st Defendant. However, the Trial Court erroneously referred to the partition deed as Ex.A.2 in certain instances rather than Ex.A.1. The stamps for Ex.A.1 were purchased in the name of K. Ramaiah Naidu, and its contents were drafted on 23.07.1989.
The scribe of Ex.A.1, T. Chengama Naidu, who is also related to the Plaintiff and the 1st Defendant through their sister's marriage to the scribe's brother, testified as DW.3. The Plaintiff had filed a suit in O.S.No.320 of 1990 against the 1st Defendant and his father, seeking a permanent injunction to restrain them from alienating their father's share. However, Plaintiff withdrew this suit without obtaining the necessary permission from the Court concerned.
21. According to the Defendants, Ex.B.2, a Xerox copy of the draft partition deed was provided to the 1st Defendant after it was drafted. Ex.A.1 contains a clause stating that Sri K. Ramaiah Naidu was to enjoy the properties without any power of alienation. The 1st Defendant contends that no such clause appears in Ex.B.2 and that it was later added to Ex.A.1 by the scribe and attestors without the knowledge or consent of the 1st Defendant or his father. The Trial Court highlighted several discrepancies between Ex.A.1 and Ex.B.2, thoroughly examining these variances in its Judgment to conclude that all the provisions of Ex.A.1 were accurate and that the deed was executed after all parties had agreed to its terms. In contrast, the First Appellate Court observed that certain corrections and interpolations were made in Ex.A.1 after Ex.B.2 had been provided to the 1st Defendant. However, in its Judgment, the First Appellate Court held that the Plaintiff had a duty to explain these alterations, 11 as they were made without the consent of the parties involved. It appears that the First Appellate Court did not thoroughly review Ex.A.1 and Ex.B.2, nor the detailed findings of the Trial Court. Had the Appellate Court given due consideration to the Trial Court's Judgment, especially to these documents, it would have been in a better position to assess the correctness of its conclusions.
22. For better appreciation, I refer to some of the observations made by the trial Court in this regard in gist:
Upon reviewing page 12 of Ex.A.1 and Ex.B.2, it is noted that Ex.B.2 mentions a correction at line 17, while Ex.A.1 refers to corrections and additions at lines 15 and 17. Specifically, Ex.A.1 includes an addition on page 12 regarding "Punja land in S.No. of Nampalle, an extent of 0.55 cents out of Ac. 6.65 cents." This addition is found in the 'C' schedule, which describes the properties allotted to the 1st Defendant. The same land is mentioned on page 25 of Ex.A.1, but it is absent in Ex.B.2. In Ex.A.1, page 20 shows that Ac.1.13 cents of Punja land in S.No. 6 of Nampalle was allotted to the Plaintiff, indicating a total of 1.68 acres in S.No.6. Adding 0.55 acres to the 'C' schedule in Ex.A.1 suggests the scribe added it later after the contents were read to the parties. No evidence suggests that the 1st Defendant did not receive this Ac.0.55 cents.
23. The observations made by the Trial Court indicate that the 1st Defendant was not initially allotted Ac.0.55 cents of land in Survey No. 6 of Nampalle village in Ex.B.2 draft. Still, this land was subsequently added to Ex.A.1. The 1st Defendant does not contest that this land was not allotted to him in the partition. This suggests that, after drafting Ex.B.2, the parties intended to make necessary corrections in Ex.A.1 document as though the family got a property to the extent of Ac.1.68 cents, but an extent of Ac.1.13 cents was allotted to the Plaintiff. Given the corrections and interpolations in 12 Ex.A.1, it is implausible that the 1st Defendant and his father, as executants of the document, failed to notice these changes. The Plaintiff had no reason to include the allocation of 0.55 acres in Survey No. 6 of Nampalle village unless it was part of the arrangement among the family members. Moreover, it is not the 1st Defendant's case that he has not been enjoying the said property, i.e., Ac.0.55 cents, in question. This clearly establishes that Ex.A.1 is not a mere replica of Ex.B.2, and both parties appear to have reached a mutual understanding to make necessary corrections and interpolations after the drafting of Ex.B.2. Consequently, it is untenable for DW1 to assert that the alteration on page 25 of Ex.A.1 regarding the clause of life enjoyment of the properties by their father was made without the parties' knowledge or consent.
24. As previously noted, in the suit O.S.No.320 of 1990, the Plaintiff clearly alleged that their father held a life interest over the 'A' Schedule properties and was attempting to alienate these properties along with the Defendant. The 1st Defendant and his father contested the suit. Thus, they knew the condition incorporated in the Ex.A.1 partition deed. However, they contested the claim that the Plaintiff and the scribe had interpolated or added the condition conferring a life interest over the properties. Despite this, they took no action to challenge the condition incorporated in the Ex.A.1 document or seek the cancellation of such a clause. In light of this, the Trial Court concluded that the restraint or limited right granted to K. Ramaiah Naidu was done with the consent of all parties to Ex.A.1.
25. It is not their case that, even after the disposal of the suit in O.S.No.320 of 1990, the 1st Defendant and his father initiated any action regarding the addition or interpolation of such a clause. No reasons for their failure to take such action have been provided despite being made aware of the condition. Having taken no action, they are now not open to raising this plea in the present suit.
1326. In Saranpal Kaur Anand V. Praduman Singh Chandhok and Ors. 4, the Hon'ble Supreme Court held that:
10. As per Article 58 of the Schedule of the Limitation Act, in a suit for declaration where Articles 56 and 57 do not apply, the plaint should be filed within three years when the right to sue first accrues. On applying Article 58 to the prayer for declaration, the sale deed dated 23rd August 1969 is invalid, and the suit filed after 42 years on 27th March 2012 is clearly barred by Limitation. However, though not adverted to in the impugned order of the Division Bench and the order of the Single Judge of the High Court, it is apparent that the plaint, for decree of declaration that the sale deed dated 23rd August 1969, is invalid, relies on Section 17 of the Limitation Act, which deals with the effect of fraud and mistake, and reads:
17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of Limitation is prescribed by this Act,--
(a) the suit or application is based upon the fraud of the Defendant or Respondent or his agent or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid or
(c) the suit or application is for relief from the consequences of a mistake or
(d) where any document necessary to establish the right of the Plaintiff or applicant has been fraudulently concealed from him, the period of Limitation shall not begin to run until the Plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the Plaintiff or the applicant first had the means of producing the concealed document or compelling its production.....
The general principle, which also manifests itself in Section 17 of the Limitation Act, is that every person is presumed to know his legal right and title to the property, and if he does not take care of his own right and title to the property, the time for filing of the suit based on such a right or title to the property is not prevented from running against him. The provisions of Section 17(1) embody fundamental principles of justice and equity, viz. that a party should not be penalised for failing to adopt legal proceedings when the facts or the documents have been wilfully concealed from him and also that a party who had acted fraudulently should not be given the benefit of Limitation running in its favour by virtue of such frauds. However, it is important to remember that Section 17 does not defer the starting point of Limitation merely because the Defendant has committed fraud. Section 17 does not encompass all kinds of frauds, but specific situations covered by Clauses (a) to (d) to Section 17(1) of the Limitation Act. Section 17(1)(b) and (d) 4 MANU/SC/0383/2022 14 encompass only those fraudulent documents or acts of concealment of documents which have the effect of suppressing knowledge entitling the party to pursue his legal remedy. Once a party becomes aware of antecedent facts necessary to pursue legal proceedings, the period of Limitation commences.
11. Therefore, in the event the Plaintiff makes out a case that falls within any or more of the four clauses to Sub-section (1) to Section 17 of the Limitation Act, the period of Limitation for filing of the suit shall not begin to run until the Plaintiff or applicant has discovered the fraud/mistake or could with reasonable diligence have discovered it or if the document is concealed till the Plaintiff has the means of producing the concealed document or compelling its production a fortiori.
12. 'Diligence' as a word of common parlance means attention, carefulness, and persistence in efforts of doing something. This Court in Chander Kanta Bansal v. Rajinder Singh Anand MANU/SC/7310/2008MANU/SC/7310/2008 : (2008) 5 SCC 117, in reference to the proviso to Order VI Rule 17 of the Code, defined 'diligence' as:
16...According to the Oxford Dictionary (Edn. 2006), the word "diligence"
means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care, caution, the attention and care required from a person in a given situation...
The word 'diligence' read with the word 'reasonable' in the context of Section 17(1) of the Limitation Act is subjective and relative and would depend upon circumstances of which the actor called upon to act reasonably knows or ought to know. Vague clues or hints may not matter. Whether the Plaintiff/applicant had the means to know the fraud is a relevant consideration. It is manifest that Section 17(1) of the Limitation Act does not protect a party at fault for failure to exercise reasonable diligence when the circumstances demand such exercise and on the exercise of which the Plaintiff/applicant could have discovered the fraud. When the time starts ticking, subsequent events will not stop the Limitation. The time starts running from the date of knowledge of the fraud/mistake, or the Plaintiff/applicant, when required to exercise reasonable diligence, could have first known or discovered the fraud or mistake. In the case of a concealed document, the period of Limitation will begin to run when the Plaintiff/applicant had the means of producing the concealed document or compelling its production.
In light of the decision cited above, this Court observes that Section 17(1) of the Limitation Act preserves the rights of a party who has been defrauded, provided the party is not at fault. In the present case, it is evident 15 that the 1st Defendant was aware of and had knowledge of the incorporation of the alleged fraudulent clause as early as 1990. However, neither the 1st Defendant nor his father took any legal action against the Plaintiff or sought the cancellation of such a clause. No explanation has been offered for their failure to act. The pleading of fraud must be clear, specific, and supported by convincing evidence. For the reasons stated above, this Court finds it somewhat difficult to accept the reasoning provided by the First Appellate Court in setting aside the findings recorded by the Trial Court.
27. The Defendants examined DW.3, the scribe of the partition deed. The 1st Defendant contends that DW.3 provided Ex.B.3 an affidavit stating that he altered Ex.A.1 by incorporating the life interest clause regarding the rights of Sri K. Ramaiah Naidu. However, DW.3 specifically denied giving such an affidavit in his testimony, rendering Ex.B.3 of little evidentiary value. To support the claim that DW.3 provided the notarized affidavit, the Defendants examined DW.4. Upon evaluating the evidence of DWs. 3 and 4, the Trial Court did not accept this contention. However, the First Appellate Court overturned this finding on flimsy grounds. After considering the evidence and reasoning provided by both Courts, this Court is inclined to uphold the Trial Court's finding, as it is well-supported by sound reasoning. The 1st Defendant failed to prove that DW.3 gave an affidavit admitting that he altered Ex.A.1 on his own without the consent of D.1 by adding the life interest clause. Furthermore, a perusal of Ex.A.1 shows clear interpolations and additions, making it difficult to believe that DW.1 and his father, being educated persons, would have affixed their signatures to the document without noticing these alterations.
28. The main contention of the 1st Defendant is that the imposition of restriction of his father's share is not valid in view of sections 10 and 11 of the Transfer of Property Act. The trial Court and the First Appellate Court relied on the decision of the composite High Court of Andhra Pradesh in Valluri 16 Narasimhamurthy and anr. V. Chavali Venkateswarlu and others 5, and held that section 10 is applicable to this case and the condition in Ex.A.1 restricting the rights of the Plaintiff's father only to enjoy the property during his life time, he is held to be inoperative. In the decision mentioned above, the composite High Court of Andhra Pradesh held that:
9. Section 10 of the Act deals with what may be called a restricted transfer, the restriction being an absolute restraint on alienation of the property transferred. The section provides that in such a case, the condition or Limitation imposing a total restraint is void. The section is really grounded on public policy, as an absolute restraint on the power of alienation will tend to create a perpetuity which public policy discountenances. The section speaks of conditions or limitations which impose an absolute restraint on alienation. Where there is such an absolute restraint, the condition or Limitation which brings about such a consequence is void. But if the condition or Limitation is only a partial restraint in contra distinction to an absolute restraint, then section 10 of the Act is not attracted. In dealing with a question whether the condition or Limitation restraining an alienation is total or partial, the courts must construe the word "absolutely" in Section 10 in a reasonable manner. That is to say, the Courts have to look at the substance and not be unduly influenced by the form of the condition or the Limitation. As pointed out by Jessel, M.R. in In Re Maclay [(1875) 32 L.T. 682 at 683.] :
"The test is whether the condition takes away the whole power of alienation substantially. It is a question of substance and not of form."
10. If the particular condition or Limitation practically takes away the power of alienation either expressly or indirectly, then the condition or Limitation against alienation cannot be valid in law. This is so because what you cannot do directly, you cannot be permitted to do indirectly. In case of agreements for consideration, a stipulation That the Parties thereto shall not alienate certain property for a limited time will be valid and binding not only on the actual parties to the agreement but also their representatives and persons who may take the property with notice of the agreement. But even in the case of an agreement where the agreement purports to prevent alienation of property in perpetuity or for an indefinite period, that would be opposed to public policy and cannot bind persons who become entitled to the property.
11. In construing whether the restraint is an absolute restraint or only a partial restraint, the answer will depend upon the intention of the parties as gathered from the words and also a consideration of the facts of the particular case.
51973 (1) ALT 181 17
29. The trial Court, based on the aforementioned observations, held that the principles underlying Section 10 of the Transfer of Property Act are applicable to partition as well. However, both the trial Court and the First Appellate Court failed to properly consider the other terms of the Ex.A.1 partition deed. A careful reading of the Ex.A.1 partition deed reveals that there were disputes among the family members, and in accordance with the advice of the elders, to resolve the disputes, they partitioned their properties. Furthermore, the Ex.A.1 partition deed specifies how the debts incurred by the family for the construction of the house are to be discharged, which is an essential aspect of the Family arrangement. Both the Courts failed to take these details into account.
30. The 1st Appellate Court referred the decision in Chamu Jinnappa Sheri and others V. Savitri Yeshwantrao Chagule and others 6, wherein the High Court of Karnataka held that it is perfectly lawful and valid for the parties to a partition, evidenced by the registered deed, to take only a limited interest as their share and allow the devolution of property on the persons of their choice and such an arrangement would in law amount to relinquishment of one's full right in the property and taking only a life interest with the vested remainder making over to somebody else named in the document and that such a stipulation is valid and binding.
31. In Kale and others V. Deputy Director of Consolidation and others7, the Apex Court held in Para Nos.10, 40 and 42 explaining the essentials of family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
.......... The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. xxxxxx
10. In other words, to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:6
ILR 2004 Karnataka 2153 7 (1976) 3 SCC 180 18 (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral, in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced to writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property, which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement, the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed, and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims, are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.
24. This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates a18n estoppel so as to preclude any of the parties who have taken advantage under the agreement from, revoking or challenging the same. ..............
40. In Ram Charan Das's case MANU/SC/0358/: [1965]3SCR841 (supra), while dwelling on the point of the family arrangement, this Court observed as follows:
It seems to us abundantly clear that this document was, in substance, a family arrangement and, therefore, was binding on all the parties to it. Moreover, it was acted upon by them..................
42. Finally, in a recent decision of this Court in Shanmugam Pillai's case MANU/SC/0398/1972MANU/SC/0398/1972 : [1973]1SCR570 after an exhaustive consideration of the authorities on the subject, it was observed as follows:19
Equitable principles such as estoppel, election, family settlement, etc., are not mere technical Rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In recent times, in order to render justice between the parties, Courts have been liberally relying on those principles..............
32. The totality of these circumstances makes it likely that a family arrangement was reached, and in furtherance of this arrangement, the family members executed the Ex.A.1 partition deed. After considering all relevant aspects of the matter, this Court is inclined to conclude that the differences between the parties were resolved through a family arrangement, which, once executed, is final and binding on all the parties involved.
33. After thoroughly examining the evidence, this Court is of the view that there was a mutual agreement among the Plaintiff, his brother, and his father to resolve their differences and settle their disputes. In light of the principles enunciated by the Hon'ble Supreme Court, this Court concludes that the family settlement in question does not contravene any legal provisions. On the contrary, it is a legally valid and binding agreement formed in accordance with well-established legal principles. Family arrangements are governed by a distinct form of equity, unique to their nature, and will be enforced, provided they are made in good faith.
34. In light of the principles established in the aforementioned decision, this Court is of the view that both Courts failed to appreciate the legal position in this regard correctly. The findings of both Courts are contrary to the observations made in the Supreme Court's Judgment and cannot be upheld.
This Court finds that the conclusions reached by both Courts do not align with the established legal principles and should be reconsidered in light of the authoritative guidance provided by the Supreme Court.
35. Before the trial Court and the First Appellate Court, the 1st Defendant contended that when two clauses in a deed are repugnant to each other, the first clause should prevail, and the later clause should be rejected. In support 20 of this argument, the 1st Defendant's counsel cited the decisions in Jaggavarapu Krishna Reddy and another V. Jaggavarapu Chittemma and others8 and Midnapur Zamindari Co. Ltd. V. Jogendra Kumar Bhaumik and others9. Upon reviewing the relevant terms of the Ex.A.1 partition deed, this Court agrees with the trial Court's finding that there are no conflicting clauses within the deed. As such, the First Appellate Court's observations are incorrect and not supported by sound reasoning. This Court has no hesitation in concluding that the finding of the First Appellate Court in this regard is erroneous.
36. The learned counsel for the 1st Defendant asserted that the Plaintiff's suit is not maintainable, as it was filed without obtaining permission from the Court to withdraw the previous suit in O.S.No.330 of 1990. The trial Court, however, rejected this contention. It is important to note that the suit in O.S.No.330 of 1990 was filed seeking a permanent injunction to prevent the Defendant and his father from alienating the property on the basis that the Plaintiff's father held a life interest over it. In contrast, the present suit is for partition, requesting the allotment of a ½ share following his father's death. As the trial Court correctly noted, these are distinct causes of action. The trial Court further emphasized that during the lifetime of K. Ramaiah Naidu, neither the Plaintiff nor the 1st Defendant could lay claim to a share of the property allocated to him with life interest under Ex.A.1. To invoke the provisions of Order 2, Rule 2 of the Civil Procedure Code, the cause of action in the previous suit must form the foundation of the later suit. As per the terms of Ex.A.1, the Plaintiff was not entitled to seek a partition of the property during the father's lifetime. The most he could have sought was an injunction to prevent his father from alienating the property, given his life interest. Thus, the trial Court's finding cannot be found fault with.
81998 (2) ALT 1995 9 AIR 1921 Calcutta 750 21
37. It appears that the 2 nd Defendant purchased the schedule property under a sale deed dated 31.05.1994, and the suit was filed on the very same day. The proceedings in O.S.No.330 of 1990 reveal a significant dispute between the parties concerning the Plaintiff's father's rights over the schedule property. The Ex.A.1 document further establishes that the Plaintiff's father holds a life interest in the property. Before purchasing the property, the 2nd Defendant was expected to verify the Ex.A1 partition deed, which serves as the source of the title. However, for reasons unknown to the Court, the 2nd Defendant has failed to produce a copy of the sale deed. In the absence of this crucial document, it becomes challenging to ascertain whether the 2 nd Defendant had knowledge of the ongoing litigation between the Plaintiff and his father concerning the schedule property. This omission raises significant doubts about the extent of the 2nd Defendant's awareness of the legal dispute at the time of the property purchase. In the said facts of the case, the 2 nd Defendant cannot be considered a bona fide purchaser.
38. The 1st Defendant contends that his father executed an unregistered Will (Ex.B.1) on 20.03.1992, bequeathing the properties that fell to his share in favour of the 1st Defendant. The trial Court framed the issue of whether the 1 st Defendant's father executed an unregistered Will in favour of the 1 st Defendant. Upon evaluating the evidence, the trial Court found that the 1 st Defendant failed to establish that Ex.B.1 was a genuine document. However, the First Appellate Court reversed this finding. Upon a careful review of the relevant materials, this Court is inclined to uphold the trial Court's finding, as it is backed by solid reasoning. The First Appellate Court erred in overturning this conclusion by relying on certain precedents without providing proper justification. When this Court has already determined that Plaintiff's father held a limited interest in the property, any will purportedly executed by him would not be binding on Plaintiff regarding the schedule property. While the question of whether the Plaintiff's father executed a Will is important, it is not crucial in resolving the matter at hand. After thoroughly considering the evidence 22 presented by both parties regarding their respective claims, this Court concludes that the trial Court's finding on this issue is correct and should be upheld.
39. A fundamental principle in property law is that one cannot transfer a better title than the one he possess (Nemo dat quod non habet). Consequently, the 2nd Defendant could not have acquired a valid title to the property. If the 1st Defendant did not possess exclusive ownership of the property, he had nothing to convey to the 2nd Defendant, except perhaps the ongoing litigation concerning the Plaintiff's father's half share. In such circumstances, the 2nd Defendant could not have acquired any exclusive right to the property from the 1st Defendant, as any claim made would be subject to the existing legal dispute over the title and rights of the parties involved. The trial Court, upon a thorough examination of the evidence, correctly observed that the 1st Defendant lacked the exclusive right to alienate the property. The 2nd Defendant's claim under the sale deed dated 31.05.1994 is subject to the 1st Defendant's rights over the property. Should the 2nd Defendant have purchased any part of the schedule property, he may claim what was allotted to the share of DW1. After careful consideration of the arguments presented by both parties, this Court finds no reason to deviate from the trial Court's conclusion.
40. In the light of aforesaid discussions, this Court finds that the Ex.A.1 partition deed is true, valid and binding on all the parties. For the above reasons, this Court discerns perversity in the Judgment rendered by the learned First Appellate Court. The findings and reasoning provided by the First Appellate Court are inconsistent with established legal principles. Furthermore, the First Appellate Court failed to consider the evidence on the record following the well-settled principles of law.
41. Upon a thorough examination of the evidence on record, this Court concludes that the trial Court has duly evaluated the evidence in its proper 23 context and rendered its findings with accuracy and in alignment with the material on record. The conclusions reached by the trial Court are grounded in a sound interpretation of the evidence and do not warrant any interference, except those findings which are set aside by this Court. The Judgment and decree of the learned First Appellate Court are set aside. Consequently, the substantial questions of law raised in this Second Appeal are adjudicated in favour of the Appellant and against the Respondents.
42. As a result, this Second Appeal is allowed without costs, consequently, the Judgment and decree dated 29.03.2010 passed by the learned VIII Additional District Judge (Fast Track Court), Chittoor in A.S.No.122 of 2000, are hereby set aside. The Judgment and decree, dated 05.06.2000 passed by the learned Principal Junior Civil Judge, Chittoor, in O.S.No.320 of 1994, are restored.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 03.01.2025 SAK 24 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO SECOND APPEAL NO.405 OF 2010 Date: 03.01.2025 SAK